Patvardhan & Gayakvad
[2023] FedCFamC1F 514
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Patvardhan & Gayakvad [2023] FedCFamC1F 514
File number(s): MLC 1687 of 2022 Judgment of: BAUMANN J Date of judgment: 29 June 2023 Catchwords: FAMILY LAW – COSTS – Where the Applicant husband sought a nullity of the parties’ marriage – Where the Court identified difficulties with the husband’s application – Where the husband seeks similar relief in Country C – Where the husband withdrew his application at the final hearing – Where the Respondent wife was put to the expense of responding to the application – fixed costs ordered Legislation: Family Law Act 1975 (Cth) s 117 Division: Division 1 First Instance Number of paragraphs: 20 Date of last submission/s: 27 February 2023 Date of hearing: On the papers in chambers Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Regal Lawyers and Advisors ORDERS
MLC 1687 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PATVARDHAN
Applicant
AND: MS GAYAKVAD
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
29 June 2023
THE COURT ORDERS:
1.That within sixty (60) days of the date of this Order, the Applicant husband make a contribution to the costs of the Respondent wife fixed in the sum of $6,000.
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 the pseudonym Patvardhan & Gayakvad has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
In 2021, the Applicant husband, Mr Patvardhan, and the Respondent wife, Ms Gayakvad, solemnised their marriage in City B, Country C. The marriage was arranged in what appears to have been consistent with cultural traditions in Country C, by the respective parties’ families. There was, for example, a limited interaction between the parties before the act of marriage.
The husband, an Australian citizen of Country C descent, arranged, after the marriage, for the wife to enter Australia on a visitor visa allowing her to stay for up to 12 months, with no right to work or study.
In his affidavits in support of his Application for nullity filed on 2 March 2022, the husband sets out the basis for his application and the very unhappy relationship the parties had in Australia. He, as an unrepresented litigant, did not particularise his relief clearly, with his Application stating the orders sought as follows:
1.Declare the Marriage is void ab initio with no costs.
2.Annulment of Marriage [in] 2021 between [Mr Patvardhan] (Australian Citizen, Passport …) with [Ms Gayakvad] ([Country C] Citizen Passport …)
3.No appeal.
The wife, who returned to Country C within months of arriving in Australia, has at all times opposed the husband’s Application, and her affidavits in support assert she was the victim of abuse and domestic violence at the hands of the husband and his family in the family home (where she lived whilst in Australia) and summarised her ordeal as a “nightmare”. It is an agreed fact that the husband caused the wife’s visa to be cancelled and provided the wife with a one way ticket for her to return to Country C – where she now continues to live.
The husband’s Application, after at least three separate Court events, ultimately came before me for a Final Hearing on 8 February 2023 in Melbourne. The husband appeared supported by his parents, and represented himself. The wife retained solicitor Ms Verma, and was present from Country C by electronic means.
The transcript will reveal that after the Court identified the difficulties the husband had with his case – and that his concurrent proceedings in Country C for a decree of nullity was the more appropriate forum (in circumstances where the husband was relying upon the domestic laws of Country C to ground the relief sought) –such that the husband withdrew his Application. He only did so after the Court gave him the opportunity to consult his parents.
The wife’s advocate contended that the wife wished to pursue an order for costs, and as the Orders made on 8 February 2023 direct, written submissions have been filed in respect of costs, being:
(a)on 15 February 2023, by the wife. Those submissions annexed a copy of an offer to settle made in writing on 23 May 2022 and a costs disclosure agreement dated 14 April 2022; and
(b)the husband’s submissions contained in an affidavit affirmed 24 February 2023 and filed 27 February 2023.
PRINCIPLES
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party shall bear their own costs of any proceedings. However, under s 117(2), if the Court determines in the exercise of its discretion (and after considering the relevant factors in s 117(2A) of the Act) that the circumstances justify an order for costs, then the Court is empowered to make such order as it deems just.
CONSIDERATION
I deal with the relevant s 117(2A) factors in a narrative style.
The husband says his salary is about $7,500 per month gross and after income tax and living expenses, he estimates he has little remaining – although he does own a home with a mortgage of $518,000. The husband gives no evidence of the value of the home. Furthermore, at paragraph A of his affidavit he gives details of expenses incurred for the marriage and travel, culminating he claims in now having “exhausted all my savings and borrowed funds”.
There is no evidence of the wife’s financial position. The husband says her grandfather has assets. The wife’s submissions claim her parents “sold their only house to marry her to the Applicant in the hope that she would have a bright future here in Australia”. I infer this is a reference to a dowry.
As between the parties (not their families) I find the husband is in a modest, yet superior financial position to the wife.
The husband commenced proceedings in Country C, still ongoing, for similar relief to that sought initially in Australia. It is important to the husband that his marriage be annulled.
I am satisfied that the husband was put on notice, at least by the letter of offer dated 23 May 2022, that his case had difficulties. Although the wife’s submissions suggest that a Registrar on two occasions and a Division 2 Judge on one occasion, made similar observations, in the absence of a transcript (or a concession by the husband), I cannot make such a finding.
Although the husband contends that his decision to voluntarily withdraw his Application for nullity is not the same as being “wholly unsuccessful”, he misses the essential point, being that by commencing and pursuing his Application he invited the wife to respond and thereby incur costs. The wife would not have been required to engage legal representation if the husband had not filed his Application. The wife would have been saved costs after 24 May 2022, if the husband had discontinued his Application as he was invited to do by the letter of offer.
CONCLUSION
I take into account the matters already raised in these Reasons. I choose not to engage in the highly emotional submissions made by each party – about their short marriage and the asserted breaches of Country C domestic law or why the marriage failed.
It was, in my view, unhelpful for the submissions of the wife in this costs dispute to say that:
These legal proceedings concern a young girl, 24-year-old, whose life has been shredded to pieces by the Applicant and his family – the Respondent is the victim of domestic violence.
I am satisfied that circumstances exist to justify an order for costs, but not indemnity costs at a level of over $11,000 as sought.
I regard it as appropriate to fix an amount for costs pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), so as to avoid the parties incurring further costs associated with taxation or assessment of costs.
I will order that the Applicant husband shall make a contribution to the costs of the wife fixed in the sum of $6,000 within 60 days.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 June 2023
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