Koyroyshs & Koyroyshs (No. 2) - [2020] FamCA 1060

FAMILY COURT OF AUSTRALIA
Koyroyshs & Koyroyshs (No. 2) [2020] FamCA 1060

File number(s): SYC 2276 of 2016

Judgment of: HARPER J

Date of judgment: 11 December 2020

Catchwords: FAMILY LAW – COSTS – Where the mother seeks costs against the father for a specified interlocutory period in relation to a particular Application in a Case – Where the father initially failed to disclose relevant information relevant to his Application – Where such conduct caused unnecessary delay in the proceedings – Where father made unsuccessful recusal application - Where the father’s financial circumstances are greater than that of the mother’s – Where factors justifying costs order in favour of mother established - Where costs were sought on an indemnity basis – Where no exceptional circumstances made out justifying indemnity or solicitor and client costs - Where costs in a fixed amount ordered to be paid

Legislation:
Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) rr 19.08, 19.18

Cases cited:
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 191 FLR 294

Harris & Dewell and Anor (No.2) (2018) FLC 93-863

Koyroyshs & Koyroyshs [2020] FamCA 626

Prantage & Prantage (2013) 49 Fam LR 197

Prantage & Prantage (Costs) [2014] FamCA 850

Worth & Worth (No.2) (2019) FLC 93-910

Number of paragraphs: 46

Date of hearing: 18 September 2020

Place: Sydney

Counsel for the Applicant: Mr Campton SC

Solicitor for the Applicant: Consort Family Law

Counsel for the Respondent: Mr Batey of Counsel

Solicitor for the Respondent: First Choice Family Lawyers
ORDERS

SYC 2276 of 2016

BETWEEN:
MS KOYROYSHS

Applicant

AND:
MR KOYROYSHS

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

11 DECEMBER 2020

THE COURT ORDERS THAT:
1.Within 28 days, the Respondent pay the costs of the Applicant for the period 11 April to 19 July 2019 fixed in the amount of $12,500.
2.The Application in a Case filed by the Applicant on 2 September 2020 be otherwise 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 Koyroyshs & Koyroyshs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION

The matter presently before me for determination is the Application in a Case of Ms Koyroyshs (“the mother”) filed on 2 September 2020 for an order that Mr Koyroyshs (“the father”) pay her costs of an interim Application in a Case filed by the father on 11 April 2018 (“April 2018 interim application”). The parenting aspect of the proceedings concern the…

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.

Continue reading Koyroyshs & Koyroyshs (No. 2)

Details

AGLC: Koyroyshs & Koyroyshs (No. 2) [2020] FamCA 1060
Case: [2020] FamCA 1060
Decision Date: 11 December 2020

CaseChat Overview and Summary

In *Koyroyshs & Koyroyshs (No. 2)*, Harper J of the Family Court of Australia considered an application by the mother for costs against the father concerning a specific interlocutory period. The dispute arose from the father's initial failure to disclose relevant information in support of his application, which caused unnecessary delay in the proceedings. The father had also made an unsuccessful application for the judge's recusal. The court noted that the father's financial circumstances were significantly greater than the mother's.

The primary legal issues before the court were whether the mother had established grounds for a costs order against the father for the period of 11 April to 19 July 2019, and if so, on what basis. The mother sought costs on an indemnity basis, while the father sought the dismissal of her costs application.

Harper J reasoned that the father's conduct, including the failure to disclose material facts and the subsequent delay, justified a costs order in favour of the mother. However, the court found that no exceptional circumstances were made out to warrant costs on an indemnity or solicitor-client basis. Consequently, the court ordered the father to pay the mother's costs for the specified period in a fixed amount. The mother's separate Application in a Case filed on 2 September 2020 was otherwise dismissed.

Orders

Orders of the court

SYC 2276 of 2016

BETWEEN:

MS KOYROYSHS

Applicant

AND:

MR KOYROYSHS

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

11 DECEMBER 2020

THE COURT ORDERS THAT:

1. Within 28 days, the Respondent pay the costs of the Applicant for the period 11 April to 19 July 2019 fixed in the amount of $12,500.

2. The Application in a Case filed by the Applicant on 2 September 2020 be otherwise 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

Although I did not hear the April 2018 interim application, I did hear and determine the substantive proceedings on a final basis. The substantive proceedings, which involved both property and parenting disputes, were resolved following a five-day trial and the subsequent delivery of judgment on 6 August 2020: Koyroyshs & Koyroyshs [2020] FamCA 626 (“the primary judgment”). Costs relating to the April 2018 interim application were reserved to the final hearing of the matter by Senior Registrar Campbell on 9 May 2019. The mother seeks her costs relating to that application be determined by me. The father seeks that her Application for costs be dismissed. SHORT PROCEDURAL HISTORY The history of the matter was outlined in great detail in the primary judgment (see [39]-[58]). It is necessary only to refer to some aspects relevant to the question of this application for costs. On 18 April 2016, the father filed an Initiating Application in this Court. He sought both interim and final orders in relation to parenting and financial issues. On 11 April 2018, the father filed an Amended Initiating Application, Amended Notice of Risk and the April 2018 interim application. He sought that the child be removed from the mother’s care, that she thereafter live with him, and that she spend only supervised time with the mother for three hours each week. In the alternative, if the child was not removed, he sought an injunction preventing the mother from striking the child and additionally sought that the mother attend certain parenting courses. The basis of the orders claimed by the father were allegations that the mother had been physically abusing the child, based upon the father’s observations of marks and bruising as well as certain disclosures made by the child. The mother wholly denied the allegations put forth by the father. She filed a Response to the April 2018 interim application on 14 May 2018, seeking the April 2018 interim application be dismissed. The April 2018 interim application came before Senior Registrar Campbell on 17 May 2018. At this hearing, the father resiled from his allegations of risk, stating that “there is no issue of risk in this case any longer”: Judgment of Senior Registrar Campbell dated 4 December 2018, paragraph [13]. As a result, he did not press his Application for a change of residence, however did press orders in relation to the time he spent with the child. The question of the time the father would spend with the child was adjourned to 7 June 2018. When the matter came back before Senior Registrar Campbell on 7 June 2018, it became clear that the father had failed to disclose material facts in seeking a change of residence; in particular, he failed to disclose that NSW Police had previously investigated his concerns and had determined that the child was not at risk. The hearing was adjourned to allow the father time to file an affidavit explaining his change in position on 17 May 2018 and his failure to disclose the information he had received from the NSW Police. The father filed an affidavit on 9 July 2018

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 2276 of 2016
Judgment of:	HARPER J
Date of judgment:	11 December 2020
Catchwords:	FAMILY LAW – COSTS – Where the mother seeks costs against the father for a specified interlocutory period in relation to a particular Application in a Case – Where the father initially failed to disclose relevant information relevant to his Application – Where such conduct caused unnecessary delay in the proceedings – Where father made unsuccessful recusal application - Where the father’s financial circumstances are greater than that of the mother’s – Where factors justifying costs order in favour of mother established - Where costs were sought on an indemnity basis – Where no exceptional circumstances made out justifying indemnity or solicitor and client costs - Where costs in a fixed amount ordered to be paid
Legislation:	Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) rr 19.08, 19.18
Cases cited:	Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 191 FLR 294 Harris & Dewell and Anor (No.2) (2018) FLC 93-863 Koyroyshs & Koyroyshs [2020] FamCA 626 Prantage & Prantage (2013) 49 Fam LR 197 Prantage & Prantage (Costs) [2014] FamCA 850 Worth & Worth (No.2) (2019) FLC 93-910
Number of paragraphs:	46
Date of hearing:	18 September 2020
Place:	Sydney
Counsel for the Applicant:	Mr Campton SC
Solicitor for the Applicant:	Consort Family Law
Counsel for the Respondent:	Mr Batey of Counsel
Solicitor for the Respondent:	First Choice Family Lawyers

ORDER MADE BY:	HARPER J
DATE OF ORDER:	11 DECEMBER 2020