Khoroushi & Kirk

Case [2024] FedCFamC1F 368

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Khoroushi & Kirk [2024] FedCFamC1F 368

File number: SYC 6553 of 2018
Judgment of: BRASCH J
Date of judgment: 30 May 2024
Catchwords: FAMILY LAW – COSTS – Where the mother sought orders that the father be liable for her costs either from the date she filed a Third Amended Initiating Application or when she filed her Case Outline for trial – Where final parenting orders were made by consent on Day Three of the trial – Where mother brings application for costs after orders made – Where no circumstances justify a departure from s 117(1) of the Family Law Act 1975 (Cth) – Each party to bear their own costs of the parenting proceedings
Legislation:

Family Law Act 1975 (Cth) ss 117(1), (2) and (2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13(3)

Cases cited:

Anison & Anison [2019] FamCAFC 108; (2019) FLC 93–908

Caffyn & Caffyn [2018] FamCAFC 259

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

Franklyn & Franklyn (No.2) [2021] FamCAFC 160

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Lenova & Lenova (Costs) [2011] FamCAFC 141

McAlpin & McAlpin (1993) FLC 92-411

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664

Munday v Bowman (1997) FLC 92-784

Prantage & Prantage (Costs) [2014] FamCA 850

Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Yunghanns v Yunghanns (2000) FLC 93-029

Division: Division 1 First Instance
Number of paragraphs: 61
Date of last submissions: 1 May 2024
Date of hearing: On the papers
Place: Sydney
Counsel for the Applicant: Mr Fermanis
Solicitor for the Applicant: Manning Lawyers Pty Ltd
Counsel for the Respondent: Mr Scarlett
Solicitor for the Respondent: All Ashfield Legal

ORDERS

SYC 6553 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS KHOROUSHI

Applicant
AND:

MR KIRK

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

30 MAY 2024

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed by the mother on 6 February 2024 is dismissed.

2.The parties bear their own costs of the parenting proceedings.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this…

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AGLC
Khoroushi & Kirk [2024] FedCFamC1F 368
Case
[2024] FedCFamC1F 368
Decision Date

CaseChat Overview and Summary

The mother, Ms Khoroushi, sought orders that the father, Mr Kirk, be liable for her costs either from the date she filed a Third Amended Initiating Application or when she filed her Case Outline for trial. The parties had been engaged in protracted and acrimonious litigation over parenting matters. The father resisted the mother's costs application, arguing that the mother should bear her own costs and that the application should be dismissed with costs. The Federal Circuit and Family Court of Australia (Division 1) was required to determine the appropriate costs order in the context of the parties' contentious history and the resolution of their disputes.

The court considered the provisions of section 117(1) of the Family Law Act 1975 (Cth), which mandates that each party bear their own costs of proceedings unless there are special circumstances justifying a departure from this rule. The court found no special circumstances that warranted a costs order in favour of the mother. The mother's costs application was made after the parties had reached a consent agreement on parenting matters, and the court determined that the mother's application for costs was not a special circumstance that would justify departing from the general rule.

The court concluded that both parties should bear their own costs of the parenting proceedings. The mother's application for costs was dismissed, and the father was not required to pay the mother's costs.

The court made the following orders:
1. The application in a proceeding filed by the mother on 6 February 2024 is dismissed.
2. The parties bear their own costs of the parenting proceedings.

Orders

Orders of the court

SYC 6553 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KHOROUSHI

Applicant

AND:

MR KIRK

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

30 MAY 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed by the mother on 6 February 2024 is dismissed.

2. The parties bear their own costs of the parenting proceedings.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The father resisted the making of a costs order. In his Response filed 4 April 2024, he sought that “The Application in Proceedings filed 6 February 2024 be dismissed with costs” and that “The Applicant pay the Respondent's costs". The second order must relate to his costs responding to the mother’s costs application.BACKGROUND: The applicant mother is Ms Khoroushi, born 1973. The respondent father is Mr Kirk born 1969. The parties commenced cohabitation in 2013 and separated in September 2018. Both are retired public servants and both are on forms of income protection payments. The father has since remarried. The parties litigated property and parenting disputes commencing in 2018 and concluding with final parenting and property consent orders on 4 April 2019. This current round of litigation was initiated by the mother in August 2020, wherein she sought an order to change X’s last name from the father’s to hers. She subsequently abandoned that, but the parties were nevertheless then on a trajectory of acrimonious litigation. Dr B, the Court Expert psychiatrist, provided a report in April 2022 wherein he made a provisional diagnosis for the mother of Factitious Disorder (formerly known as Munchausen by proxy) and raised concerns about the mother’s parenting capacity. In her Third Amended Initiating Proceeding filed 25 August 2023 (the moving document by the time of trial), the mother sought orders, in summary, that: she have sole parental responsibility; the child live with her; and the child spend alternate weekends with the father (Friday to Monday) with some additional time in the school holidays and on special occasions. She sought similar orders in her Case Outline for trial. In neither document did she propose any orders that required her to consult with the father or take his views into account for any major long-term issues for X, in particular for her future schooling and complex medical needs. It ought be uncontroversial to say the source of the parties’ main dispute was over X’s medical needs and diagnoses. In a subsequent report of November 2023, Dr B resiled from his provisional diagnosis and concerns for the reasons stated in his report, after having benefit of a detailed history of treatment from Dr C (the child’s paediatrician at the time) and discussions with Ms D the child’s psychologist. In his Amended Response filed 22 December 2023, the father sought orders, effectively in reverse: that he hold sole parental responsibility but he notify the mother of all such major decisions within 48 hours; the child live with him; and the child spend alternate weekends with the mother (Friday to Tuesday), half school holidays and time on special occasions. Ultimately the parties proposed final orders that: the mother hold sole parental responsibility but with detailed provisions for the father’s involvement with respect to decisions concerning X’s health and her future schooling; her last name remain as is (that is, the father’s); the child live with the mother and spend time with the father on alternate weekends (Friday to Monday), half school holidays and special occasions; restraints on each party; orders for telephone contact; travel; passports; and parenting courses.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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