Shan & Prasad
[2021] FedCFamC1F 158
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Shan & Prasad [2021] FedCFamC1F 158
File number(s): SYC 6654 of 2018 Judgment of: REES J Date of judgment: 27 October 2021 Catchwords: FAMILY LAW – SECURITY FOR COSTS – Consideration of the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.02 – Application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.02 Division: Division 1 First Instance Number of paragraphs: 30 Date of last submissions: 18 October 2021 In Chambers: 27 October 2021 Place: Sydney Solicitor for the Applicant: Acorn Lawyers Respondent: Self-Represented ORDERS
SYC 6654 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PRASAD
Applicant
AND: MR SHAN
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
27 OCTOBER 2021
THE COURT ORDERS:
1.That the application for security for costs filed 25 August 2021 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 the pseudonym Shan & Prasad has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Parenting proceedings between Ms Prasad (“the mother”) and Mr Shan (“the father”) concerning their children now aged 11 and 9 years, are shortly to be heard. The father is the applicant in the substantive proceedings.
On 25 August 2021, the mother filed an Application in a Proceeding seeking orders that the father pay $100,000 by way of security for costs, or, in the alternate, that a company
N Pty Limited be joined as a party to the proceedings in order to satisfy any order for costs ultimately made in favour of the mother.
On 6 September 2021, the following orders were made:
1.That the Application in a Case and affidavit filed on 25 August 2021 together with these orders be served on the respondent by 4 pm on 7 September 2021.
2. That the applicant within 7 days file and serve a Financial Statement.
3.That the respondent within 21 days file and serve a response, any affidavit material in reply in relation to the Application in a Case filed on
25 August 2021 and a Financial Statement.
4.That each party within a further 21 days file and serve written submissions indicting [sic], inter alia, whether they wish an opportunity to speak to the submission in Court or whether they ask that the matter be dealt with in chambers.
Notwithstanding those orders, the father filed nothing.
The mother relies, in support of her application, on her affidavit affirmed 25 August 2021 and Financial Statement sworn 10 September 2021.
The application is governed by the provisions of rule 12.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in the following terms:
12.02 Application for security for costs
(1)A respondent may apply for an order that the applicant in the proceeding give security for the respondent’s costs.
(2)In deciding whether to make an order, the court may consider any of the following matters:
(a) the applicant’s financial means;
(b) the prospects of success or merits of the application;
(c) the genuineness of the application;
(d)whether the applicant’s lack of financial means was caused by the respondent’s conduct;
(e)whether an order for security for costs would be oppressive or would stifle the proceeding;
(f) whether the proceeding involves a matter of public importance;
(g)whether a party has an order, in the same or another proceeding (including a proceeding in another court), against the other party for costs that remain unpaid;
(h) whether the applicant ordinarily resides outside Australia;
(i) the likely costs of the proceeding;
(j) whether the applicant is a corporation;
(k) whether a party is receiving legal aid;
(l) any other relevant matter.
There is no evidence from the father as to his financial position, however, the evidence of the mother is unchallenged.
Annexed to the mother’s affidavit is a document titled “Company Profile” of N Pty Limited which, on its face, appears to have been prepared by Dun & Bradstreet. The father is noted as the “Key [illegible]”. The annual revenue of the company is stated to be USD738,921.
The ASIC search of N Pty Limited shows the father to be the sole director and N1 Pty Limited is the sole shareholder.
The ASIC search of N1 Pty Limited shows the father as sole director and
sole shareholder.
N1 Pty Limited is the owner of two pieces of commercial real estate purchased in
October 2018 and May 2019 for a total of $1,655,000.
The mother earns $4,000 per week ($208,000 per annum). She receives $400 per week in child support from the father. She deposes to expenditure exceeding her income. Those expenses include $414 per week for a loan on an investment property. The mother’s husband earns $3,700 per week.
The mother and her husband own their own home which she estimates to have a value of $1,700,000, subject to a mortgage of $1,180,000 and an investment property which she values at $850,000 subject to a mortgage of $840,400.
She has superannuation of $250,066.
As to the merits of the father’s application, the mother relies on adverse comments made in the report of the single expert. However, these are parenting proceedings where the father has not been permitted to have any contact with the children for some time and the expert’s evidence is untested by cross-examination.
I accept that the application is being prosecuted as a genuine attempt by the father to spend time with the children who he has not seen for some seven years.
The mother spent considerable funds in previous proceedings which were occasioned when, in June 2013, the father removed the two children, then aged almost three years and less than one year, from Australia and took them to India. The mother travelled to India and successfully pursued the return of the children in the courts in India. The father unsuccessfully appealed the decision of the Indian court to return the children to the mother.
There then followed proceedings in Australia commenced in July 2013, where, ultimately, the Federal Circuit Court of Australia (as it then was) made orders in December 2015 which provided for the children to live with the mother and spend no time with the father.
The mother’s costs in relation to those proceedings were in excess of $100,000.
The father unsuccessfully appealed those orders.
On 3 November 2014, orders were made restraining the father from selling a property at Property D. In July 2015, the mother found that the father had sold the Property D property for $675,000, contrary to the orders. The father retained the whole of the proceeds of the sale after discharging the mortgage, some $169,000, except for the sum of $15,973.47 which remained when the mother brought an application.
On 22 December 2015, the father was ordered to pay spousal maintenance in the sum of
$650 per week for 150 weeks. The father did not comply with that order, initially paying
$65 per week until September 2016 and $6.50 per week until January 2018.
In circumstances where the father has chosen not to put any evidence before the Court, I am unable to find that the making of any order would be oppressive, having regard to the evidence of the father’s income.
There is no issue of public importance to be determined.
I am not aware of any order that the father pay the mother’s costs which remains unsatisfied.
The father lives in Australia, is not in receipt of legal aid and is not a corporation, although he holds assets through a corporation.
The mother deposed to her anticipation of the costs to her of the substantive hearing being some $68,000.
In the present case, the mother seeks an amount by way of security for costs that both substantially exceeds her estimated costs and assumes that, if an order for costs were ultimately made in her favour, that order would be for indemnity, not party and party costs.
Whether or not an order for costs is ultimately made will depend upon the assessment, at the conclusion of the substantive hearing, of the factors set out in the Family Law Act 1975 (Cth) s 117(2A). It is by no means a foregone conclusion that the mother would be successful in any application for costs.
I am not satisfied, having regard to all the matters mandated for consideration, that it is appropriate to make the order sought by the mother and the application will be dismissed.
In those circumstances, it is not necessary to consider the application for the joinder of the third party.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 27 October 2021
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