Korrapati and Mishra (No. 2)

[2021] FamCA 524

FAMILY COURT OF AUSTRALIA

Korrapati & Mishra (No. 2) [2021] FamCA 524

File number(s):

BRC 1445 of 2020

Judgment of:

CAREW J

Date of judgment:

19 July 2021

Catchwords:

FAMILY LAW – COSTS.

Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Cases cited:

Alfarsi & Elhage [2016] FamCA 428

Bunyon & Lewis (No. 3) [2013] FamCA 888

Collins & Collins (1985) FLC 91-603

PBF v TRF (2005) 191 FLR 294

Penfold v Penfold (1980) 144 CLR 311

Korrapati & Mishra [2021] FamCA 281

Number of paragraphs:

14

Date of last submission/s:

4 June 2021

Date of hearing:

By way of written submissions

Place:

Brisbane

Solicitor for the Applicant:

Joshi Lawyers

Solicitor for the Respondent:

Naughton Mccarthy Family Lawyers

ORDERS

BRC 1445 of 2020
BETWEEN:	MS KORRAPATI Applicant
AND:	MR MISHRA Respondent

ORDER MADE BY:	CAREW J
DATE OF ORDER:	19 JULY 2021

THE COURT ORDERS THAT:

1.The application by the respondent for costs in relation to the applicant’s Application in a Case filed 10 December 2020 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

CAREW J:

1. Ms Korrapati (“the mother”) and Mr Mishra (“the father”) have two children. Since 2016 the mother and children have lived in India. The father lives in Australia. On 12 March 2020 the mother and children were present in Australia and upon the undertaking of the mother to participate in parenting proceedings in Australia. The father then agreed to the mother and children returning to India, and an order was made by consent restraining the mother from commencing parenting proceedings in India.

2. Once back in India, the mother brought an application in Australia to stay the parenting proceedings arguing that the Australian court did not have jurisdiction, and also seeking injunctions against the father to restrict his use of property in Australia. Her application to stay the parenting proceedings was dismissed on 7 May 2021. Agreement was reached in relation to the injunction and an order was made reflecting that agreement on 30 April 2021.

3. The father now applies for an order that the mother pay his costs “occasioned by the Application filed 11 (sic) December 2020” and for those costs to be assessed in accordance with Schedule 3 of the Family Law Rules 2004 (Cth) (“the Rules”). The application for costs on an indemnity basis is not pressed.

   HOW COSTS APPLICATIONS ARE DETERMINED

4. Although each party generally bears their own costs in this jurisdiction (see s 117(1) of the Family Law Act 1975 (Cth) (“the Act”)), the Court has a broad discretion[1] to make such order as to costs as the Court considers just, where there are circumstances that justify it in doing so (s 117(2)).

   [1] Collins & Collins (1985) FLC 91-603 at 79,877.

5. An applicant for costs bears no “additional or special onus” other than the establishment of “justifying circumstances”.[2]

   [2] Penfold v Penfold (1980) 144 CLR 311 at 315.

6. In the exercise of the discretion to award costs, regard must be had to the factors set out in s 117(2A) of the Act, so far as they are relevant.

7. Those factors are as follows:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the Court considers relevant.

8. It is sufficient for one factor in s 117(2A) to be present.[3]

   [3] PBF v TRF (2005) 191 FLR 294.

9. Rule 19.18 empowers the Court, when awarding costs, to make an order for costs:

   a)of a specific amount;

   b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);

   c)to be calculated in accordance with the method stated in the order; or

   d)for part of the case, or part of an amount assessed in accordance with Schedule 3.

10. In considering what specific order should be made the same rule provides that the Court may consider any of the following factors:

    a)the importance, complexity or difficulty of the issues;

    b)the reasonableness of each party’s behaviour in the case;

    c)the rates ordinarily payable to lawyers in comparable cases;

    d)whether a lawyer’s conduct has been improper or unreasonable;

    e)the time properly spent on the case, or in complying with pre-action procedures; and

    f)expenses properly paid or payable.

    DISCUSSION

11. The father relies upon the following matters to support his costs application:

    (a)An offer was made by the father on 12 April 2021 indicating his consent to an injunction restraining him from dealing with the property as proposed by the mother save for one amendment. No response to that offer was received. On 30 April 2021 agreement was reached and an order was made by consent which incorporated the amendment sought by the father with an additional further amendment agreed to by both parties;

    (b)The mother was wholly unsuccessful in relation to her application to stay the parenting proceedings;

    (c)The mother had previously conceded jurisdiction and provided an undertaking to the Court to participate in the parenting proceedings in Australia and consented to an injunction restraining her from commencing parenting proceedings in any other jurisdiction;

    (d)The mother’s “abandonment” of her concession is a “justifying circumstance for a costs order”;

    (e)There was a “clear existing authority”, namely, Alfarsi & Elhage [2016] FamCA 428, which applied in the circumstances of this case.

12. The mother resists the costs application and relies upon the following matters:

    (a)Although the mother was unsuccessful in staying the parenting proceedings, it was not until 30 April 2021 that she was able to “secure” the injunction restraining the father’s use of certain property;

    (b)The mother’s application for injunctions to restrain the father’s use of property was necessary because the father had already disposed of property, and had consistently failed to comply with his disclosure obligations;

    (c)Although an offer was made by the father to consent to the injunctions sought with an amendment, there was a further amendment made during the course of the hearing on 30 April 2021. The further amendment was a substantial one as it “sought to apply to all the entities”;

    (d)Alfarsi & Elhage was not a “clear existing authoring” as the decision in Bunyon & Lewis (No. 3) [2013] FamCA 888, drew the opposite conclusion;

    (e)The jurisdictional argument was a “novel issue on which there is no clear authority”;

    (f)If the Court is nevertheless minded to make a costs order, it is submitted that any sum should be payable from the mother’s property settlement in circumstances where:

    (i)The mother earns INR 105,000 ($1,909) per month;

    (ii)The father is not proving child support;

    (iii)The mother is solely paying for all costs in relation to the children including their private school fees;

    (iv)The mother is already struggling to fund the litigation costs in Australia from her Indian salary.

    CONCLUSION

13. I am not persuaded that the circumstances of this case justify a costs order.

14. The proceedings required a consideration of relevant provisions of Part XIIIAA of the Act and as I noted in my Reasons delivered on 7 May 2021[4] at [42] I was unable to locate any authority in which s 111CC of the Act had been discussed in detail. The outcome turned on its particular facts and the interpretation of legislation. The offer made by the father in relation to the injunction was the subject of further amendment on the day of hearing such that an appearance at Court was necessary even without the jurisdictional challenge.

    [4] Korrapati & Mishra [2021] FamCA 281.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.

Associate:

Dated:       19 July 2021