Iqbal and Jaheer

[2016] FamCA 155

FAMILY COURT OF AUSTRALIA

IQBAL & JAHEER [2016] FamCA 155

FAMILY LAW – PROCEDURAL ORDERS – costs application – where lawyers were responsible for inadequate preparation – no justification for costs orders.

Family Law Act 1975 (Cth)

APPLICANT: Ms Iqbal

RESPONDENT: Ms Jaheer

FILE NUMBER: MLC 9588 of 2015

DATE DELIVERED: 1 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Goussis

SOLICITOR FOR THE APPLICANT: Amicus Lawyers

COUNSEL FOR THE RESPONDENT: Mr Akbulut«FCA_LD221»

SOLICITOR FOR THE RESPONDENT: Gary March Legal

Orders

1. That the order made on 13 January 2016 is varied to include the following words:

   That the application in a case filed on 7 December 2015 is adjourned to 10.00am on 1 March 2016 in the Judicial Duty List.

2. That the mother file and serve an amended application initiating proceedings and such application be filed by no later than 4.00pm on 7 March 2016.

3. That until further order, paragraphs 8-14 of the orders made on 14 October 2015 are stayed.

4. That the father file and serve a response to the mother’s application by no later than 4.00pm on 28 March 2016.

5. That the application in a case filed 7 December 2015, the application in a case filed 1 March 2016 and the application in a case filed 18 February 2016 are all otherwise dismissed.

6. That the substantive application seeking relief to set aside the orders of 14 October 2015 is adjourned to a date to be fixed for listing before a judge at trial as soon as practicable.

7. That the application by the father for costs is dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9588 of 2015

Ms Iqbal

Applicant

And

Mr Jaheer

Respondent

REASONS FOR JUDGMENT

1. The only purpose for in giving reasons in this particular case is that I have an application for costs. Section 117 of the Family Law Act provides that in proceedings under the Act, each party shall bear their own costs unless there are justifiable circumstances to depart from that principle.  The basis upon which the application for costs is made here is that the father was only served with documents this morning;  the mother has not conducted her case as was anticipated by the orders of 13 January 2016, and the father had done his best to minimise the costs where the mother’s case is still “improperly pleaded”.

2. Those particular issues are all disputed by counsel for the mother.  At best I could describe this case as a mess.  Final orders were made of a both property and parenting nature in October 2015 by a registrar.  I have doubts about the power to make some of those orders. 

3. In December 2015, the mother, having not vacated a property that she was expected to vacate – although I am not at all clear that is what the order requires – faced an application for what was described as an enforcement.  The solicitor for the father said the form that was used in the process was suggested by someone in the registry.  I query whether or not that is a fair explanation for the way the particular case was prepared.

4. In any event, the matter came before the Court in the judicial duty list on 13 January 2016.  On that occasion, both parties were represented by lawyers and the Court’s involvement was minimal.  An unusual set of minutes was drawn that day in which no mention was made of the matter being adjourned into this list today.  Somehow, or other, someone decided that it should be in this list.  There is no mention of the application in the case from December being adjourned to today.  What the orders made by consent in January provided for was that the mother file an initiating application setting out the precise grounds upon which she relied for the support of her application to set aside the orders that I have mentioned.

5. The order then quaintly goes onto say that if she filed that application, the respondent would withdraw his application for enforcement “with a right of reinstatement”.  None of the things that should have happened did.  The explanation for the mother not filing the initiating application, which would have enlivened the jurisdiction of the Court, was that there was a bereavement in the community which meant that the solicitor was unable to get instructions.  The solicitor then filed an odd affidavit indicating what the problem was and then brought an application before the Court today seeking to extend the time.

6. Why that extension of time was necessary is unclear, bearing in mind that the jurisdiction would only be enlivened in the event that the application was filed at any time.  Needless to say, in discussions with both practitioners today, the fog has lifted.  It seems quite clear that there is a contentious issue here about the circumstances under which the orders were made.  The mother pleads in a vague way that she acted under duress.  Somehow or other, a solicitor who gave her advice, has sworn an affidavit and that affidavit has apparently been filed.

7. How the waiver of privilege arose is not entirely clear and I have not read the affidavit.  Needless to say that is reason why I have described this case as a mess.  I have now put in place all of the necessary steps to rectify all of the problems and the case, if properly prepared, can now sit in the list awaiting a judge to determine for trial.

8. There was some discussion about the possibility of a conciliation conference, but I am not prepared to waste the Court’s resources in this case without knowing exactly what the prospects of a resolution would be in circumstances where I do not understand what the duress is, nor do I understand what the father’s position is. 

9. All of that leads to the question of whether I should make an order for costs in the father’s application against the mother. I interpolate here that the application was said to also be made against the solicitor for the mother but, indeed, that application cannot go anywhere because notice has not been given. Having regard to the fact that the father’s case seemed to me to be fundamentally flawed in the same way that the mother’s case was fundamentally flawed, both as to jurisdiction and to power, it is hard for me to see how I could justify any departure from the principle in section 117 that each party pays their own costs. It seems to me that it has been the Court that has rectified the mess that the parties and their lawyers have created. In those circumstances the application for costs is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 March 2016.

Associate: 

Date:  16 March 2016