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:

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.
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.
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
Although each party generally bears their own costs in this jurisdiction (see s 117(1) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FamCA 524
Decision Date: 19 July 2021

CaseChat Overview and Summary

In *Korrapati and Mishra (No. 2)*, the Family Court of Australia considered an application by the respondent father for costs against the applicant mother. The dispute arose in the context of parenting proceedings, where the mother had sought an injunction to restrain the father's use of certain property.

The primary legal issue before Carew J was whether the circumstances of the case justified making a costs order against the mother, despite her initial lack of success in staying the parenting proceedings. The mother resisted the costs application, arguing that her application for injunctions was necessary due to the father's prior disposal of property and non-compliance with disclosure obligations. She also contended that a significant amendment to the father's offer regarding the injunctions on the day of the hearing necessitated her appearance. Furthermore, she submitted that the jurisdictional argument presented a novel issue without clear authority, and that if a costs order were made, it should be payable from her property settlement due to her financial circumstances.

Carew J dismissed the respondent father's application for costs. His Honour was not persuaded that the circumstances warranted a costs order. The proceedings involved the interpretation of specific legislative provisions, including section 111CC of the Act, which had not been extensively discussed in prior case law. The outcome was determined by the particular facts of the case and the interpretation of the legislation. The court noted that the father's offer concerning the injunction was substantially amended on the hearing day, making an appearance necessary even without the jurisdictional challenge. Consequently, the application by the respondent for costs in relation to the applicant’s Application in a Case filed 10 December 2020 was dismissed.

Orders

Orders of the court

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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

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