SARIN & SARIN

[2015] FCCA 2372

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARIN & SARIN [2015] FCCA 2372

Catchwords:
FAMILY LAW – Application for enforcement in respect of costs orders – response seeking to re-open case pursuant to r.16.05 of the Federal Circuit Court Rules 2001 – costs bill not in taxable form – respondent’s explanation for delay wholly unsatisfactory – application by respondent to be removed from watch list – entirety of proceedings dismissed save that watch list order discharged.

Legislation:

Federal Circuit Court Rules 2001, rr.25B.07(1), 25B.07(2)(f), 25B.10(a), 25B.11, 25B.12

Applicant: MR SARIN

Respondent: MS SARIN

File Number: MLC 4115 of 2010

Judgment of: Judge Burchardt

Hearing date: 25 June 2015

Date of Last Submission: 25 June 2015

Delivered at: Melbourne

Delivered on: 11 September 2015

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. The Application in a Case filed 4 February 2015 be dismissed.

2. The Response filed 2 April 2015 be dismissed.

3. The Application in a Case filed 5 June 2015 be dismissed.

4. Orders 3 and 4 of the orders made on 28 October 2013 be discharged and the respondent, Ms Sarin, be permitted to depart the Commonwealth of Australia.

IT IS NOTED that publication of this judgment under the pseudonym Sarin & Sarin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4115 of 2010

MR SARIN

Applicant

And

MS SARIN

Respondent

REASONS FOR JUDGMENT

Background

1. These parties have been litigating energetically and bitterly since 2010.  The most recent tranche of proceedings arises essentially out of a judgment and orders that I made in the absence of the respondent on 28 October 2013.  At that stage, the present respondent was the applicant.  She failed to attend Court and it was assumed that she was in India at the time.

2. Throughout the currency of the proceedings (and I have reread the entirety of the very large file- something which has taken some time), both parties and, in the father’s case, his family have sought to make the most florid and outrageous accusations against one another.  That pattern of conduct has been continued.

3. When the matter came before the Court on 25 June 2015 both parties were self-represented and the applicant’s father (who was a party to the proceedings concluded in 2013) also attended.  The proceedings were not just attended by the sort of procedural and forensic difficulties that often obtain when parties are self-represented.  The transcript will not fully reveal the intensely acrimonious nature of the parties’ interaction.  It was all that the Court could do at times to constrain them.

4. In the ultimate, I indicated that I would revisit the file, analyse the parties’ present applications, and see what, if anything, could be done to progress the matter in a sensible and orderly way.

5. Having perused the materials in the file, I have come to a series of views as to what the appropriate outcome should be. Since, however, the parties might reasonably have apprehended that the matter was at an interim stage and I, in fact, propose to make final orders, I am going to publish these Reasons for Judgment and draft orders and give the opportunity to the parties to make any further submissions as to the conduct of the matter and its outcome.

The decision in October 2013

1. On 28 October 2013 the trial, which then included children’s issues, proceeded with no appearance by the mother (the respondent in this case). All the other parties, save the Independent Children’s Lawyer, represented themselves, and the Independent Children’s Lawyer was represented by counsel.  The children’s orders were made in accordance with the proposals of the Independent Children’s Lawyer and a watch list order in respect of the child X was discharged.

2. An order was made that, until further order, Ms Sarin be restrained by injunction from departing the Commonwealth. 

3. Property orders were made with which the respondent, it would appear, does not now take issue and the respondent was ordered to pay the applicant’s costs, with such costs to be taxed, and a sum of $303, being the cost of obtaining the child’s passport and a new visa reissued by the Indian Consulate.

4. It was ordered that the Independent Children’s Lawyer serve a copy of these orders at the last-known address of the mother.

5. The Court noted that the mother had not attended Court and Annotation B read:

   “The mother have liberty to apply to set aside these orders provided:

   i.     she makes an Application within twenty-eight (28) days of service upon her of these orders;  and

   ii.she files an Affidavit setting out the basis of the Application and explaining her non-attendance at Court this day.”

6. I do not have transcript of the hearing but my recollection is that the order prohibiting the mother from departing the Commonwealth of Australia was made with a view to compelling compliance, and the annotation made a time limit for any application (Rule 16.05 of the Federal Circuit Court Rules 2001 has no time limit) in order to ensure that the parties were not thrown back into a relitigation of all the children’s issues in the event that the mother were to return at some later date. I note that it is possible that my recollection may be at fault but in any event nothing, in my view, now turns upon this as the orders were made according to their terms.

7. I note that at paragraph 18 (the final paragraph) of my judgment I said:

   “18.  The husband has sought that the wife be put on the Watch List so that, should she return to Australia, she is unable to leave pending further Court order. I am prepared to make that order, although as I have explained to the husband, it seems likely to be to give rise to precisely what nobody really needs in this case, which is more litigation…”

The present application

1. There matters stood until the Application in a Case which has given rise to this proceeding was filed on 4 February 2015.  The orders sought are short and simple:

   “1.    The respondent Ms Sarin be required to pay the costs with interest accrued within 28 days.”

2. The applicant Mr Sarin’s affidavit filed contemporaneously asserts the costs order made on 28 October 2013 (amended subsequently on 15 September 2014).  It deposes to emails to the respondent in 2014 seeking the costs by no later than 7 December 2014.  One of the emails to the respondent reads:

   “I have written to you on 22/07/2014, 29/07/2014 and 29/08/2014 seeking reimbursement for passport and caveat-related costs as ordered by the Honourable Judge at the Federal Court.  As you are aware, there is also an order by the Federal Court requiring you to pay me the legal costs incurred.  These costs amount to more than $100,000.”

3. The affidavit deposes at paragraph 5:

   “5.    I sent Chapter 19 Costs Notice along with costs details on 31 December 2014 by registered mail…”

4. The costs notice is not annexed to the affidavit but the list of costs allegedly engendered (Annexure S-3) is not, on any view, a bill in taxable form.

5. As I had foreseen, this Application gave rise to further litigation because the respondent filed a Response on 2 April 2015.  Relevantly, it asserts, “ORDER 1 TO WHICH I DO NOT AGREE TO PAY.”

6. Under the heading Other Orders Sought, the response says, “1.    I WOULD WANT THESE ORDERS TO STAY/KEPT ASIDE BECAUSE I HAVE APPLIED FOR AN APPEAL IN THIS CASE.”

7. The respondent filed an affidavit also on 2 April 2015.  It runs to come 12 closely-typed pages with many, many pages of annexures, albeit that a number are court records.

8. The affidavit is by my means easy to follow, but I note from paragraph 12 the respondent has been in Australia since 4 October 2013.

9. The respondent takes issue with various findings in my original reasons for judgment and much of the assertions made are both florid (eg. paragraph 24:  “The ex husband himself is a liar, cheat and a fraud who has two criminal charges against him in Australia.  The whole family are habitual liars and cheats.”) and/or argumentative.  I note that at paragraph 52 the respondent deposed:

   “52.  The first time I ever got to know that I have to pay him money was through an unsolicited registered post sent on 6th January 2015 on my address, with a self made excel spreadsheet, where he demanded me to pay him $150000 by 9th January 2015.”

10. The affidavit goes on to assert that the respondent had to make inquiries as to whether the order for costs had been made, but I note from paragraph 53 of the affidavit the respondent was, at the very least, aware of the application in a case by 26 February 2015 or thereabouts.

11. The affidavit seeks in terms to revisit the orders originally made and repeats claims of harassment and bullying by the applicant’s family made in the original proceeding.

12. At paragraph 61 the respondent deposes:

    “61.  I would like to request the Court TO ALLOW ME FOR AN APPEAL out of the time frame as being given in the court notes in the amended pursuant to rule 16.05(2)(e) of Federal Circuit Court as on 15th September 2014) and to look in to the orders made for the above given paragraph and bring this case to justice looking at circumstances I was made to put in again and again by the respondent and his family.”

13. The affidavit goes on to request the respondent’s removal from the airport watch list and the setting aside of the various costs orders.

14. It should be noted that there is no medical evidence to support any suggestions of clinical depression and attempted suicide which are both asserted.

15. I note further that at paragraph 13 the respondent asserts that, upon her return to Australia, “…I decided to live in regional Victoria where nobody could find me or my where about until the ex mother in law against who I’ve had intervention in the past found my address and started sending me threatening and demeaning letters again.”

16. I note that this individual has also taken out an application for an Intervention Order against the mother.

The issues presently before the Court

1. Although not articulated in any clear way by the self-represented parties, the issues that seem to me to fall for consideration are:

   a)the applicant husband’s application for an enforcement order in respect of the outstanding costs orders;

   b)the mother’s application to set aside the costs orders, both generally and as to the specific matters relating to removal of caveats and the passport;

   c)the mother’s application to remove the watch list order.

   d)the applicant’s so-called appeal out of time, which is more properly characterised as an application under Rule 16.05, to set aside an order made in her absence, notwithstanding the annotation/order made in 2013.

The application to reopen the case by the respondent

1. As already indicated, the wife’s affidavit material does not append any medical evidence to support the various illnesses that she says have impacted on her capacity to conduct her affairs from at least 2013 until now.

2. Furthermore, the matters she seeks to raise in relation to the costs orders made that she wishes to dispute amount to no more than the sort of assertions she advanced in the original proceedings and which the Court did not accept (albeit on an undefended basis).

3. More importantly, although the wife’s affidavit material advances a number of criticisms of the findings of the Court, she does not seek in terms the Court re-litigate the entirety of the proceeding, rather that the costs orders be set aside.

4. Even on the most beneficent view of the facts, ie., that the respondent found out about the orders requiring her to pay costs in late February 2015, her application was not brought until her Response filed on 2 April 2015.

5. In my view, it is far more probable than otherwise that the wife knew all about the costs orders but, as she says, was living quietly in rural Victoria (she has remarried) and let the matter lie.  She was only provoked to take any action by the service upon her of the Application in a Case seeking enforcement of the costs orders.

6. Indeed, looking at the respondent’s affidavits as a whole, it seems clear that she knew all about the proceedings in October 2013 (at which time she was certainly in the country) and has rested on her laurels thereafter.

7. From the brief interaction of the parties in Court before me, it is readily apparent that any endeavour to completely reopen this case would be a forensic catastrophe involving enormous amounts of the Court’s time and a welter of self-serving scurrilous mutual accusation and self-exculpation.  The fact is that the parties have conducted their affairs on a separate basis at least since 2013, and there is no proper basis to exercise my discretion to enable the application on such a broad basis, at least, to proceed.

The costs application

1. Scarcely surprisingly, the application pays no regard to the terms of r.25B of the Federal Circuit Court Rules 2001. I accept that the costs order made is an enforceable obligation within the meaning of rr.25B.07(1) and (2)(f).

2. Equally, I accept that the applicant would have the capacity to enforce such an obligation (see r25B.10(a)).

3. The material filed by the applicant, however, is almost wholly deficient in respect to the matters required to be set out pursuant to r.25B.12. Most particularly, it does not assert that the applicant’s costs have been taxed, as the 2013 order required.

4. In those circumstances, it is immediately apparent that the Court ought not make any orders in the applicant’s favour on this part of the application. Furthermore, the material filed by the applicant (and indeed that of the respondent) would give the Court no idea as to what order should be made pursuant to r.25B.11.

5. In my view, should the applicant wish to take the costs matter further, he must tax his bill in the ordinary way and pursue his remedies thereafter.

The application to set aside the costs orders

1. The costs orders made in 2013 followed the failure of the respondent to attend Court.  As I observed in my original Reasons for Judgment, the wife’s conduct of those proceedings had been manifestly unsatisfactory.  Even if, as she now asserts (but for the reasons above- and see paragraph 52 below- I do not accept), the wife’s failure to attend Court and prosecute her case was not blameworthy and witting, the fact is that the criticisms made of her conduct of her case would stand in any event.  Insofar as she complains of the costs of removing unfounded caveats and paying for the passport fees, there is no possible question that those costs would be properly paid by her in any event.

The respondent’s application to remove herself from the watch list

1. It is clear that I was prescient when I said that this order might give rise to further litigation.  It appears from what the respondent said in Court that she lives in Australia, where she has remarried, although from her affidavit material it is also clear that she still has close ties to India, from where she originates.

2. There is, of course, a public policy consideration in keeping someone in Australia so that opportunities may be properly taken to enforce Court orders, which is essentially what the applicant seeks by the watch list order.

3. There is, however, also a public policy consideration in not turning Australia, in effect, into a jail.  The respondent has good reason to want, from time to time, to go to India.

4. In my view, an order compelling the respondent to stay in Australia indefinitely for no other purpose than to allow the applicant to pursue as yet wholly unformed initiatives to recover a costs order that is now almost two years old is manifestly inappropriate.  This is all the more so when it would appear from the materials as they stand that she is likely to remain in Australia, at least intermittently, in any event.

Conclusion

1. I have already commented more than once on the very difficult nature of the relatively short hearing that took place when the parties were before the Court.  Any further litigation between these parties is likely to be chaotic, time consuming and bedevilled by issues of proof.  The parties should get on with their lives.

2. If the father wishes to pursue the costs orders made in his favour, he must do so in a proper fashion.

3. The only orders I am presently minded to make are to dismiss the Application in a Case and Response, save that I would order that the respondent’s name be removed from the watch list.

4. As I indicated at the outset, these conclusions seem to me to be fairly obvious on the materials filed.  Nonetheless, I am keenly conscious that the parties have not fully addressed the Court on all aspects of these matters and would reasonably have been under the impression that only interim orders were contemplated.  I will give the parties a period of time in which to file any written submissions as they may be advised, both as to the preliminary conclusions I have expressed or otherwise as to the conduct of the matter.

5. Since the interpersonal dynamic in Court between the parties is so troublesome, I am going to order that any further submissions be in writing, and I will hear the parties as to a timetable.

6. Finally, I should say I have not dealt in any detail with the respondent’s Application in a Case filed 5 June 2015.  It merely formalises her application to remove her name from the watch list and to set aside the costs orders previously made.  The affidavit filed in support really only repeats matters set out in her earlier larger affidavit.  It repeats assertions of severe depression in 2013 and on an ongoing basis, but there is no medical evidence to support this.  It is clear, nonetheless, that the applicant was in direct contact with her lawyer after her return on 4 October 2013, and it is utterly unlikely that an experienced solicitor (as the practitioner is) would have failed to inform the applicant of the forthcoming hearing date, notwithstanding that a Notice of Withdrawal had already been lodged.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  11 September 2015