Kocak & Fahri

Case [2021] FedCFamC1F 17

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kocak & Fahri [2021] FedCFamC1F 17

File number(s): MLC 5924 of 2018
Judgment of: MACMILLAN J
Date of judgment: 14 September 2021
Catchwords: FAMILY LAW – COSTS –  where the father seeks costs on an indemnity basis to be paid by the mother and/or her legal practitioner –  where the mother was wholly unsuccessful – where the mother’ application to vary parenting orders was “totally misguided” – where the mother’s legal practitioner conceded that she had a conflict – where neither the mother or her legal practitioner filed submissions in reply to the submissions filed by the father in support of his application for costs orders – where the circumstances justify an order for costs and indemnity costs are warranted – where an order is made that costs be shared jointly and severally by the mother and her legal practitioner.  
Legislation:

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) rr19.08, 19.10, 19.11, 19.18

Cases cited:

Cassidy & Murphy (1995) FLC 92-633

Colgate–Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Eames & Eames [2018] FamCAFC 204

Fountain Selected Meats (Sales) v International Produce Merchants Pty Ltd (1988) 81 ALR 397

Huda & Huda and Anor (Costs) [2017] FamCAFC 104

Kohan & Kohan (1993) FLC 92-340

Munday v Bowman (1997) FLC 92-784

Pilkvist & Coburn (Deceased) [2020] FamCA 92

Ridehalgh v Horsefield (1994) 3 All ER 848

Yunghanns & Yunghanns (2000) FLC 93-029
Division: Division 1 First Instance
Number of paragraphs: 58
Date of last submission/s: 31 August 2020
Date of hearing: Written Submissions
Place: Melbourne
The Applicant: In Person
Counsel for the First Respondent: Ms Dellidis
Solicitor for the First Respondent: Mills Oakley Lawyers

ORDERS

MLC 5924 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KOCAK

Applicant
AND:

MR FAHRI

Respondent

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

14 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The mother and/or her solicitor, Ms Serene Teffaha be jointly and severally liable for the Father's costs of and incidental to the Mother's Application in a Case filed 6 May 2020 fixed in the sum of $40,996.90.

2.All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Fahri &…

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AGLC
Kocak & Fahri [2021] FedCFamC1F 17
Case
[2021] FedCFamC1F 17
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Kocak v Fahri was heard on 12 June 2020, concerning the parenting of a child and disputes between the parties. The mother sought parenting orders and the discharge of the Independent Children’s Lawyer, while the father sought orders permanently restraining the mother’s solicitor from acting on her behalf. The case involved complex procedural history, including previous orders made by the court, psychiatric assessments, and various applications and counter-applications by both parties. The court had to navigate through these issues to determine the appropriate parenting orders and to address the father's concerns regarding the mother's solicitor.

The legal issues before the court included the determination of appropriate parenting arrangements for the child, the assessment of the mother's mental health, and the appropriateness of restraining orders against the mother. The court also had to consider the mother's application to discharge the Independent Children's Lawyer and the father's application to restrain the mother's solicitor from acting on her behalf. Additionally, the court had to address the issue of costs, particularly in light of the mother's earlier application in case which was dismissed.

The court considered the psychiatric reports and the various applications and counter-applications. It found that the mother's mental health was a significant concern, warranting further assessment. The court also noted the procedural history and the parties' conduct, including the mother's mental health crisis and the father's concerns about the mother's solicitor. Based on these considerations, the court made orders suspending all existing parenting orders, directing that the child spend time with the father under certain conditions, and requiring the mother to undergo a mental health assessment. The court also restrained the mother from certain locations and activities pending further order. The court further restrained the mother from attending upon or being within 200m of the child’s school, the father’s sister’s home, and any place in which the child is undertaking extracurricular activities.

The court did not make an order for costs, noting the complex procedural history and the various applications and counter-applications. The court found that the parties had engaged in a significant amount of litigation, and that it was not appropriate to make an order for costs at that stage. The court reserved the question of costs for a later stage in the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

On 12 June 2020 the mother’s application for parenting orders and the discharge of the Independent Children’s Lawyer (“ICL”) and the father’s application for orders permanently restraining the mother’s solicitor from acting on her behalf were listed for hearing in the Covid-19 list. BACKGROUND Although the background to the matter is set out in the reasons delivered on 10 August 2020 some of the procedural history is of particular relevance to the question of what, if any, order for costs the Court should make. On 29 May 2018 the mother commenced proceedings in the Family Court of Australia seeking parenting orders and orders for property settlement. On 1 August 2018 orders were made by Johns J that provided inter alia for the child to live with the mother and spend supervised time with the father each Sunday from 10.00 am to 4.00 pm. The father was also able to communicate with the child by telephone. Orders were also made for Dr AA to psychiatrically assess both the father and the mother. His reports were filed on 17 October 2018. On 1 May 2019 Senior Registrar Fitzgibbon made further parenting orders including inter alia an order that the father and the mother both attend upon an appropriately qualified psychiatrist or psychologist nominated by the ICL for the purposes of personality testing, with the testing and the report to be at their joint expense but paid for by the father at first instance. On 27 May 2019 the matter was listed for a final hearing before Hartnett J commencing on 30 July 2019 and orders were made for the preparation of the matter for the final hearing. A further order was made by consent in similar terms to the order made by Senior Registrar Fitzgibbon on 1 May 2019 requiring the father and the mother attend upon Ms K (“Ms K”) for the purposes of personality testing. On 19 June 2019 the mother filed an Application in a Case. The mother sought orders inter alia discharging a number of past orders and litigation funding. On 28 June 2019 Hartnett J made orders dismissing the Application in a Case. The costs of the ICL were reserved and the mother was ordered to pay the father’s costs in the sum of $7,500 with such payment to be stayed until determination by final order. On 30 July 2019 the psychiatric reports of both parties undertaken by Ms K were filed with the Court. On 31 July 2019 the matter came before Hartnett J with Ms Teffaha appearing on behalf of the applicant mother for the first time. Submissions were made by Ms Teffaha that the final hearing could not proceed as the mother was having a mental health crisis. On that basis orders were made restraining the parties from removing the child from the Commonwealth of Australia and placing his name on the Airport Watch List, that the mother ensure the child be delivered to the Child Dispute Services to meet with the Family Consultant and the ICL if appropriate, and that the matter be adjourned until later that day. On the afternoon of 31 July 2019 Hartnett J made the following orders inter alia that:(a)All existing parenting orders be suspended;(b)The child spend continuous time with the father on the condition that during all such time the father’s sister Ms B be in substantial attendance, that the child spends all overnight time between the hours of 6.00 am and 7.00 pm at the home of Ms B (noting her home is also the father’s home) and the father make all arrangements for the child to speak with the mother this day and at his discretion thereafter with the father to terminate any calls if the child becomes distressed;(c)The mother attend upon an independent psychologist as nominated by the ICL for the purposes of assessment as to her current mental health functioning, including whether she presents any risk to her child and a report shall be prepared containing this assessment. The cost of such attendance and report be borne by the father at first instance and he be at liberty to get costs from the mother hereafter in any proceedings between them. Notation C of the orders provided that the mother was to attend upon Ms K for an updated assessment of her current mental health. (d)Until further order the mother or her agents be restrained from attending upon or being within 200m of the child’s school, Ms B’s home and any place in which the child is undertaking extracurricular activities.

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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