Khalili and Chatha

[2018] FamCA 495

FAMILY COURT OF AUSTRALIA

KHALILI & CHATHA [2018] FamCA 495

FAMILY LAW – COSTS – Where the Applicant seeks costs of and incidental to his Contravention Application on an indemnity basis - Where not all contraventions alleged were found to be proved – Where the Respondent was not wholly unsuccessful – Where it was not the Respondent’s conduct alone that lead to the necessity for contravention proceedings – Where the circumstances do not justify an order for costs on an indemnity basis or a party/party basis – Application dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.08

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225

D & D (Costs) (No. 2) (2010) FLC 93-435

Joyce & Fante [2013] FamCAFC 141

Khalili & Chatha [2016] FamCA 230

Khalili & Chatha (No. 2) [2016] FamCA 914

Khalili & Chatha [2017] FamCA 1076
Penfold v Penfold (1980) 144 CLR 311
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029

APPLICANT: Mr Khalili

RESPONDENT: Ms Chatha

FILE NUMBER: PAC 991 of 2010

DATE DELIVERED: 2 July 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hills Legal group

THE SELF REPRESENTED RESPONDENT: Ms Chatha in person

Orders

1. That the Applicant 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 Khalili & Chatha 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 991 of 2010

Mr Khalili

Applicant

And

Ms Chatha

Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment concerns an application for costs made on behalf of the Applicant father in respect of the Contravention Application filed by him on 15 March 2017.

2. This Application was filed in the context of a lengthy parenting dispute with the Respondent in which final parenting orders were made by Carew on 4 April 2016[1] (“the primary orders”) following a defended hearing.

   [1]Khalili & Chatha [2016] FamCA 230.

3. The Applicant’s Contravention Application came before me for determination on 18 October 2017 and following hearing which both parties were self-represented I reserved judgment.

4. On 21 December 2017 I delivered judgment[2] and having found the contraventions on 2 September 2016, 8 October 2016 and 22 October 2016 established and being informed that the Respondent mother intended to raise reasonable excuse with respect to each contravention the matter was fixed for further hearing.

   [2]Khalili & Chatha [2017] FamCA 1076.

5. On 25 January 2018 the Respondent again appeared unrepresented and was cross examined by the Applicant’s legal representative. The matter was adjourned for consideration of penalty and variation to the primary orders pursuant to s70NBA of the Family Law Act 1975 (Cth) (“the Act”).

6. On 22 March 2018 orders were made in accordance with the proposed Minute of Orders contained in the Applicant’s case outline document that the parties engage in a parenting orders program. The Applicant’s legal representative pressed an application for costs and the parties were directed to provide submissions to chambers in regards to the application. Following the receipt of submissions from both parties judgment was reserved on 20 April 2018.

7. The question for me to determine is whether there are circumstances that justify departing from the usual Rule that each party shall bear his or her own costs.

Background

1. The parties to this Application have been engaged in extensive litigation as to the parenting arrangements for their four children since 2012.

2. The substantial background to the proceedings is set out in Carew J’s judgment delivered in April 2016.[3]

   [3]Khalili & Chatha [2016] FamCA 230.

3. The Applicant filed a Contravention Application one month after the primary orders were made in April 2016 that was dismissed by Foster J on 13 October 2016[4] and the parties were ordered to participate in the W Group Post-Orders Intervention Pilot program.

   [4]Khalili & Chatha (No. 2) [2016] FamCA 914.

4. Subsequently, in March 2017 the father filed another Contravention Application to which this application for costs relates. Leading up to hearing of that Contravention application, the primary orders were variously suspended and amended in unsuccessful attempts to cause the parties to successfully undertake changeover of the care of the children and allow the father to spend time with the three children.  

5. Following orders made on 22 March 2018 as outlined above, submissions were received from the Applicant in support of his application for costs on 16 April 2018.

6. Subsequently, on 19 April 2018 an email was received from the self-represented Respondent containing what purport to be submissions in regards to the costs application and attaching supporting documentation.

The law

1. The Applicant is seeking that his costs of and incidental to the Contravention Application in the sum of $2,500 be paid by the Respondent.

2. While the Applicant does not specify the type of costs sought, his submissions make reference to Rule 19.08(3) of the Family Law Rules 2004 (Cth) (“the Rules”) requiring him to inform the Court of any costs agreement which binds him. As that sub-rule only relates to applications for indemnity costs, I infer that the Applicant seeks an order for his costs to be paid by the Respondent on an indemnity basis.

3. The law in respect of indemnity costs is well settled, and the relevant principles are those set out in the Federal Court in Colgate-Palmolive Company v Cussons Pty Limited[5]. In that case Sheppard J provides examples where the exercise of discretion to award indemnity costs is warranted, including:

   a)false and irrelevant allegations of fraud;

   b)misconduct that causes a loss of time to the Court and other parties;

   c)where the proceedings were commenced or continued for an ulterior motive;

   d)the undue prolongation of a case; or

   e)wilful disregard of known facts and clearly established law.   

   [5] (1993) 46 FCR 225

4. While the category of cases in which an award of indemnity costs may be appropriate is not closed[6] the Full Court has stated in Joyce & Fante[7] at [11]:

   … In short, it is beyond doubt that in order to justify an award of indemnity costs, it must be demonstrated there are exceptional circumstances such that the usual order of party-party costs should be departed from.

   [6] Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029

   [7] [2013] FamCAFC 141

5. Section 117 of the Act provides that each party to proceedings under the Act shall bear his or her own costs, but that section is subject to subsection (2) which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make an order to costs as it considers just.

6. Section 117(2A) sets out matters to which the Court is to have regard in considering what order, if any, should be made under subsection (2). The matters relevant in this case are considered below.

The financial position of each of the parties to the proceedings

Whether any party to the proceedings is in receipt of assistance by way of legal aid

1. There is limited evidence available as to the financial position of either party. Both were self-represented until January 2018 when the Applicant obtained legal representation following the delivery of judgment as to his Contravention Application.      

2. Neither party is in receipt of a grant of legal aid.

3. The Respondent submits that she is in a difficult financial position as she only works part-time and is the primary carer for the parties’ four children. The Respondent annexes to her submissions a copy of her recent payslips which evidence that she earns $300 per week for permanent part time work of 15 hours per week. She also annexes to her submissions a copy of a letter from Centrelink informing her that her parenting payments have been ceased from 13 March 2018. The Respondent asserts that these payment have stopped because her youngest child has attained eight years of age and the Respondent is therefore not eligible for parenting payments. However, the letter from Centrelink indicates that the Respondent’s parenting payments have been ceased because of non-reporting of her circumstances.  

4. The Respondent asserts that the Applicant provides limited financial assistance to her for the children and pays minimal child support. The Respondent annexes a copy of a tax invoice from the children’s school which shows that as at March 2018 over $23,000 in school fees was owed by the parties.

5. The Applicant is presently in full time employment.

6. On the basis of the evidence before me I am unable to make a positive finding as to the Respondent’s capacity to pay costs. However, even if there was sufficient evidence before me to make a finding, a finding that the Respondent is impecunious would not prevent me from making a costs order.[8]      

The conduct of the parties to the proceedings in relation to the proceedings

Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

[8]D & D (Costs) (No. 2) (2010) FLC 93-435.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. It is submitted by the Applicant that the proceedings, and the costs he has incurred prosecuting the contravention, were necessitated by the Respondent’s failure to comply with the primary orders.

2. It is also submitted by the Applicant that the Respondent was unsuccessful in the contravention proceedings as she was found to have contravened the primary orders without reasonable excuse.

3. In my December 2017 judgment[9] I came to the following conclusion as to the alleged contraventions by the Respondent:

   … I am satisfied that the contraventions on 2 September 2016, 8 October 2016 and 22 October 2016 are established but there is no prima face case with respect to the alleged contraventions on 19 August 2016, 23 October 2016 and 15 December 2016.

   [9]Khalili & Chatha [2017] FamCA 1076.

4. On many occasions subsequent to the primary orders being made, including two of the contraventions alleged by the Applicant which were not proven, the parties had agreed between themselves to vary the primary orders as to the father’s time with the children and changeover of the children. In two of the cases where the contraventions were not proven miscommunications or disagreements about these variations resulted in the children not spending time with the Applicant. It was also the parties’ miscommunication as to variation of the primary orders that resulted in an earlier contravention application brought by the Applicant being dismissed in October 2016.[10]

   [10]Khalili & Chatha (No. 2) [2016] FamCA 914.

5. In circumstances where three out of the six alleged contraventions were found to be proven without reasonable excuse I do not accept that the Respondent has been wholly unsuccessful in these proceedings.

6. I also do not accept that it was solely the Respondent’s behaviour that lead to the Contravention Application being brought by the Applicant and the need for it to be prosecuted. In two of the six alleged contraventions, it was both parties’ variation of the parenting orders that lead to the children not being made available to the Applicant. In those circumstances it was reasonable for the Respondent to maintain that she had not contravened the orders as alleged.   

Discussion and Conclusion

1. Having regard to all of the matters discussed above I am of the view that the circumstances of this matter are not exceptional and do not warrant an order for indemnity costs.

2. I now turn to the question of whether the circumstances of this case warrant the making of an order for costs on a party/party basis.

3. The High Court in Penfold v Penfold[11] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [11] (1980) 144 CLR 311

4. Section 117(1) and the section 117(2A) factors discussed above are relevant to any order the Court may make for costs.

5. The Respondent in these proceedings was not wholly unsuccessful and the contravention proceedings were not necessitated solely by her conduct or failure to comply with the primary orders. 

6. There are no circumstances that justify a departure from the usual rule as to costs and accordingly, the application for costs will be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 July 2018.

Legal Associate:

Date:  2 July 2018