Hamidi and Allaway and Anor (No 2)

FAMILY COURT OF AUSTRALIA

HAMIDI & ALLAWAY AND ANOR (NO 2) [2016] FamCA 624

FAMILY LAW – COSTS – where undefended parenting proceedings – where orders made in favour of father – where mother has significant disentitling mental health and other issues – where father seeks costs on indemnity basis – where discussion as to general principles – where mother ordered to pay one half of single expert’s fees – where otherwise father’s application for costs dismissed. 

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Hawkins & Roe [2012] FamCAFC 77
Penfold v Penfold (1980) 144 CLR 311
Kohan & Kohan (1993) FLC 92-340
Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 at
Bele & Vaughan (Costs) [2012] FamCAFC 198
Hamidi & Allaway and Anor [2014] FamCA 625
Hamidi & Allaway and Anor [2016] FamCA 447

APPLICANT: Mr Hamidi

FIRST RESPONDENT:

SECOND RESPONDENT:

Ms Allaway

Department of Family and Community Services

FILE NUMBER: PAC 3361 of 2014

DATE DELIVERED: 5 August 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 July 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ryan & Seton Lawyers

Orders

1. That within one month from this date the mother pay to the father, or as he may otherwise direct in writing, the sum of $5,390 and that sum together with interest accrued, if any, be a charge against the mother’s share of the proceeds of sale of the home at P Street, G Town until paid.

2. That otherwise the father’s application for costs be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamidi & Allaway and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3361  of 2014

Mr Hamidi

Applicant

And

Ms Allaway

First Respondent

And

Department of Family and Community Services

Second Respondent

REASONS FOR JUDGMENT

1. The application for determination is the father’s application for costs arising from parenting proceedings that proceeded to hearing ultimately on an undefended basis in the absence of the mother.

Costs

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.

2. That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules…