Krupi & Krupi (No 6)
[2024] FedCFamC2F 179
•13 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Krupi & Krupi (No 6) [2024] FedCFamC2F 179
File number(s): CAC 664 of 2022 Judgment of: JUDGE MANSFIELD Date of judgment: 13 February 2024 Catchwords: FAMILY LAW – PARENTING – application for costs arising out of final hearing – application dismissed Legislation: Family Law Act 1975, ss 60B, 117, 117(2A) Cases cited: Latoudis v Casey [1990] HCA 59
Loomis & ML Lawyer (2016) FLC 93-731
Division: Division 2 Family Law Number of paragraphs: 21 Date of last submission/s: 13 February 2024 Date of hearing: 13 February 2024 Place: Canberra Solicitor for the Applicant: Hijazi Curran Cameron Lawyers Solicitor for the Respondent: Gabbedy Milson Lee ORDERS
CAC 664 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KRUPI
Applicant
AND: MS KRUPI
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
13 FEBRURAY 2024
THE COURT ORDERS THAT:
1.The Applicant’s Application in a Proceeding filed 8 January 2024 is dismissed.
2.The Respondent’s Application arising from her Response filed 6 February 2024 for the Applicant to meet the Respondent’s costs of the Applicant’s Application in a Proceeding is 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 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MANSFIELD:
BACKGROUND
As deposed by the Applicant:
3. I commenced Court proceedings on 12 April 2022, by way of filing an Initiating Application, seeking orders with respect to the child, [X] born [in] 2009 ("[X]").
4. [Ms Krupi] filed a Response to an Initiating Application on 15 June 2022.
5. The matter was listed for a contested final hearing on 14 - 17 November 2023 before His Honour Judge Mansfield.
6. Judgment was delivered on 30 November 2023, and final orders were made on that date (“Final orders”).
7. The effect of the Final Orders is that I have sole parental responsibility for [X], she lives with me and she spends professionally supervised time only with [Ms Krupi], for two hours each fortnight. There were also a number of restraining orders made, including an injunction restraining [Ms Krupi] from contacting or approaching [X], her school or my home.
8. I make this application seeking an order that [Ms Krupi] pay my costs in relation to the substantive proceedings, which concluded once the Final Orders were made on 30 November 2023.[1]
[1] Affidavit of Mr Krupi filed 22 December 2023, pp 2-3.
THE HEARING
The applicant’s application for costs, together with the respondent’s application for costs in resisting the application, was heard on 13 February 2024.
I have had regard to all of the material as set out in the parties respective Outline of Case Documents and the submissions of the parties’ legal representatives.
I have also had regard to each parties Costs Notice filed with respect to this application.
THE LAW
Pursuant to section 117 of the Family Law Act 1975, each party is to bear their own costs of proceedings under that Act. Nevertheless, the Court retains a discretion to make such Order as to costs as it considers just, if there are circumstances that justify doing so, having regard to the matters prescribed by subsection 117(2A) of the Act.
THE RELEVANT SECTION 117(2A) MATTERS
The financial circumstances of each of the parties to the proceedings.
The Applicant is employed and earns $199,855 per annum. The respondent is presently unemployed and reliant on government benefits. The respondent owns her own home unencumbered.
The respondent submits her expenses exceed her income and has no capacity to pay a costs order. Modest or even poor financial circumstances cannot be determinative in the exercise of the discretion in relation to costs as per Loomis & ML Lawyer (2016) FLC 93-731 at [59].
I find that the respondent’s financial circumstances and any disparity between the applicant’s and the respondent’s financial circumstances are of little significance in this case.
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.
The applicant submitted:
42. The Respondent's conduct was a central issue in the substantive proceedings.
44 . The Applicant asserts that the Respondent's conduct is exceptional in that her case centred on her steadfastly maintaining a stance that was without merit, namely , that the Applicant posed an unacceptable risk to the child. The Respondent defiantly maintained this position despite the evidence not supporting it, and when there was an abundance of evidence to support the contrary, including expert evidence that the child was at risk in the Respondent's care.
45. The Respondent filed voluminous documents to support her case, including a 174 page trial Affidavit and an unpaginated tender bundle, with no index, in excess of 6000 pages. The Respondent's trial documents illustrate her pre- occupation with false and fixed beliefs, most of which focus on illusory negative perceptions of the Applicant. The Applicant was put to additional time and unnecessary expense having to contend with the Respondent's filed material.
46. The Respondent's conduct during the trial itself was highly disruptive. When addressing the legal representatives (including her own), the Judge and other witnesses the Respondent was often petulant, insulting and fixated on unfounded claims. A significant amount of time was spent during the trial by His Honour attempting to manage the Respondent's numerous outbursts.
52. The Applicant contends that the Respondent's antagonistic approach to this dispute, coupled with her unwillingness to follow clear directions during the conduct of the proceedings and her conduct in the trial itself, justify an order for costs.
The respondent submits:
30. The Father complains that the Mother maintained a stance that the Father posed an unacceptable risk to the Child. However, it is not controversial that the Mother agreed that the Child lives with the Father notwithstanding her stance. The explanation for the conflicting position can be explained by the fact the Mother’s affidavit was drafted by the Mother.
31. The Father complains about the conduct of the Mother during the November 2023 hearing and the sheer volume of the Mother’s trial material. A party has the right to file many pages of trial affidavit and Tender Bundle, provided they are relevant. The Mother drafted her affidavit herself for the November 2023 hearing which can explain the length and what she thought should be included in her affidavit.
Firstly, the respondent’s conduct at trial does not sound in a costs order against her as it did not prolong the trial. If anything, the respondent’s conduct and eventual abandonment from the hearing ultimately worked against her by making the applicant’s case easier to run at final hearing.
Secondly, the respondent’s conduct during the proceedings and prior to trial can also be measured against what it wasn’t, and that is the usual circumstances that sound in costs orders, which is repeated or serious non-compliance with procedural orders, rendering court time meaningless or attempting to obtain unfair procedural or forensic advantage. What the applicant complains of is the opposite which is her overzealous engagement. Litigants have legal rights such as to request the issue of subpoenas and to file interlocutory applications – subject of course to orders of the court which in this case were made in response to the respondent’s overzealous conduct. Thereafter, it is a slippery slope for the Court to venture into what may be considered as causative of ‘additional time’ or ‘unnecessary expense’ with respect to the parties’ engagement with each other outside of court.
Thirdly, the respondent’s case that the father was a risk to the child was genuine. It was consistently her case throughout the proceedings. Her allegations were not of things that were plainly impossible. That her allegations and her case ultimately were not borne out in the evidence or made out at final hearing falls squarely within the default provision of s 117 in matters under the Act and perhaps even more so with respect to child-related proceedings and issues of risk.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings.
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.
These two factors can be considered together as the reasoning is the same.
Firstly, it is plain that the respondent was wholly unsuccessful in the proceedings when considering the final orders against the orders sought by her at final hearing or any of her previous iterations. It is also plain that there were reasonable offers made by the applicant that were in more favourable terms to the respondent than the final orders.
In this jurisdiction, those facts alone do not sound in a costs order. What points away from a costs order in the circumstances of this case is that the respondent had a justiciable case and:
(a)the offers made by the applicant (understandably) did not account for her case; and
(b)the final orders were largely consequential upon the respondent not being successful in proving her case at final hearing.
As to the respondent having a justiciable case, the following submission of the respondent has considerable force:
28. One of the main issues for the July and November 2023 hearings were how often and on what conditions the Child spends time with Mother. It is submitted that the Mother had a genuine reason to contest the duration of the spends time with, especially:
a. if there was an adult present to supervise (substantially or not); and
b. in circumstances where the Family Report did not give guidance in terms of long-term care arrangement where at paragraph 348, page 66, it is stated:
“At this stage, it is too speculative to outline a longer-term care arrangement. However, ideally this would involve [X] having the opportunity to freely maintain a positive relationship with both of her parents and spend significant and substantial time with each of them. Whether this can be achieved in light of the current circumstances and the evidence before the Court, however, remains to be seen.”
Whilst I have no doubt that the respondent didn’t believe it was necessary and only reluctantly yielded the issues of parental responsibility and where X was to live, the issues of when and under what conditions X may spend time with the respondent was always an issue in this case and thereby was properly justiciable. Those issues were still developing right through the final hearing such that the ICL and the father’s positions on them had changed by the time they made their closing submissions.
CONCLUSION
Whilst I have no difficulty finding that the respondent’s conduct at hearing was indicative of a contemptuous litigant, and her approach to the proceedings was what the Court’s Central Practice Direction and the objects and principles at s 60B of the Act strive to avoid, having regard to the factors in s 117(2A) of the Act, that conduct does not sound in costs. To otherwise make a costs order would in my view be of a punitive character and not compensatory which the High Court has prohibited. Latoudis v Casey [1990] HCA 59.
Accordingly, I am not satisfied that the circumstances justify an order for costs in favour of the applicant and the application is to be dismissed.
THE RESPONDENT’S RESPONSE
Whilst the respondent was successful with respect to the applicant’s application for costs, I am satisfied the resolution of the question of costs was a justiciable controversy. Costs do not follow the event in this jurisdiction. That none of the factors in s 117(2A) apply was conceded by the Respondent. The circumstances of this application do not warrant departure from the usual rule that the parties are to bear their own costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 14 February 2024
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