Anelli and Sault

[2018] FamCA 322

FAMILY COURT OF AUSTRALIA

ANELLI & SAULT [2018] FamCA 322

FAMILY LAW – COSTS – Mother’s application for costs following father’s unsuccessful review application – matter adjourned part-heard – for mother’s solicitor to obtain instructions

APPLICANT: Mr Anelli

RESPONDENT: Ms Sault

INDEPENDENT CHILDREN’S LAWYER: Ms M Pandeli

FILE NUMBER: MLC 9855 of 2016

DATE DELIVERED: 24 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 24 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Trapski

SOLICITOR FOR THE RESPONDENT: Trapski Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Excused from attendance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

1. This matter be adjourned to 9.00 am on Friday 27 April 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anelli & Sault (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9855  of 2016

Mr Anelli

Applicant

And

Ms Sault

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me having been listed following the unsuccessful review application of the father against the decision of Senior Registrar Fitzgibbon in respect of which I delivered reasons for decision on 20 February 2018 and left the issues of costs to be determined subsequently.  This is the determination in relation to costs.  The respondent mother (who is the applicant for costs) filed her submissions on 9 March 2018 and they appear as folio 36 on the Court file.  The father filed submissions on 22 March 2018 and they appear as folio 37 on the Court file. 

2. Prior to putting in his submissions, on 16 March 2018 the father wrote to the Court saying – omitting formal and irrelevant parts – “I would like to make a response to Ms Trapski’s written submission filed by her on 9 March 2018.  Please advise when I can have this in by and what format that I – written submission or affidavit”.  The father was notified by my chambers, as were the other practitioners in the matter, being the lawyers for the mother and the independent children’s lawyer that the matter had been set down for directions in respect of this request on Friday, 23 March 2018 at 9.15 am, and that mention would be conducted by telephone to save the parties the expense of attending Court.

3. On 23 March 2018, as best I recollect, the father wrote to the Court saying that his ability to attend a telephone mention was hampered by some difficulty with his voice.  Nonetheless, on 23 March the father did appear at the telephone mention and I made orders that by not later than 4 April 2018 the father file and serve any further submissions he wished to rely upon in relation to the mother’s application for costs, and I fixed the matter before me today for determination.

4. On 4 April 2018, the father filed further submissions in relation to costs and those submissions have been sealed by the Court, but not allocated a number on the Court file.  They should appear, on my calculation, as folio 38.

   RECORDED  :  NOT TRANSCRIBED

5. Midway through these reasons, Mr Anelli rose to his feet, and I permitted him to interrupt.  He indicated that if, within the next 72 hours, the mother was prepared to forgo her application for costs in relation to the review proceedings, he would not oppose final orders being made which provide that the mother have sole parental responsibility, a notation that he has no entitlement to communicate with or have contact – face-to-face time with the children or any of them, and the proceedings would be otherwise dismissed. 

6. The reason that the matter could not be concluded on that basis now is that unfortunately, the mother is not in attendance at court.  That is excusable in some circumstances.  I cannot excuse that she is unable to give instructions.  That is quite inappropriate.  Ms Trapski informs me that the mother does not carry a mobile phone with her whilst she is working, but the fact of the matter is that she should not be working at this point.  She should either be in court or accessible, that is, contactable for the purpose of giving instructions. 

7. In any event, it is obvious that instructions will be able to be given within the next 72 hours.  Mr Anelli has already left court.  If the mother says that she will not forgo her costs application, then I will proceed to determine costs arising out of the review decision. 

8. I have heard from both parties that neither wish to be heard any more by way of oral argument, and I have already referred to the submissions upon which they rely.  In that respect, there is one ancillary document.  It is a facsimile transmission from the solicitors for the mother dated 6 March 2018.  I mark it exhibit M1 and direct that it remain on the court file.  It is a document which could only be relied upon with the relaxed rules of evidence provided for in division 12A.  It is an email by the mother’s solicitor, Ms Trapski (who appears today), setting out what she understands happened or was said in a telephone call between the practice manager of her firm, Adam Trapski, and the father between 11.58 am and 12.01 pm on 5 March 2018.  It is a matter, on the face of it, about which I expected I would not be able to make any findings. 

9. Preliminary to that, I did ask how it was relevant in relation to costs, and Ms Trapski said that it was relevant in terms of section 117(2A) subsection (g):  “such other matters as the Court considers relevant”.  It seems to me that it could also be relevant in relation to section 117(2A)(c):  “the conduct of the parties to the proceedings in relation to the proceedings”.  This is because the matters contained in the email are largely admitted by the father, who says that he taped the conversation himself. 

10. He denies that he was endeavouring to threaten or intending to threaten anyone at the legal firm, but he does admit to several of the allegations, such as that he was sick of getting letters about costs; that he hasn’t seen his children for 10 years;  that the firm was rorting the system and the Court;  that there was some illicit relationship between the mother and her lawyer, Ms Trapski; that the children were being abused by the mother;  that the children were depressed. 

11. It was further alleged that the father said, “If Adam Trapski or I send such letters to you again, then we should ‘watch out’, as you had already had enough of things and things would ‘happen’ to us.”  The father’s response to that was, “I was angry.”  It was further alleged that the father had said to the practice manager that he didn’t know whether he had kids or wanted kids or was just a child abuser but that the father wanted to see his children, to which the father responded that something like that may have been said but it was more likely to be that questions about whether Mr Trapski had children himself, and if he did, that he would know how Mr Anelli was feeling.  In all of the circumstances, I will adjourn these proceedings to - - -

    RECORDED  :  NOT TRANSCRIBED

12. Friday at 9 am, by which time we should comfortably have received a communication from the mother’s practitioners as to whether she pursues the issues of costs or doesn’t pursue the issue of costs.  If she doesn’t pursue the issue of costs, then all should anticipate that final orders will be made as I have outlined earlier in these reasons.  No party is required to appear on the next date;  I will merely make a determination on that date and deliver some brief reasons.

    RECORDED  :  NOT TRANSCRIBED

13. Before adjourning, I will just deal with the issue of procedural fairness.  The response of the mother to the father’s initiating application appears as folio 7 on the court file and actually seeks that the father have regular face-to-face time with the children subject to certain conditions.  I recognise that as at 5 September 2017, when the matter was before me, the mother was not seeking orders in the terms of her response.  She was seeking that there be no time in that regard between the father and the children.

14. I refer to paragraph 5 of my reasons of 5 September 2017, wherein I referred to the position of the mother and the independent children’s lawyer as being to uphold the orders of the Senior Registrar, that is, there be no time or communication pending a final determination of the parenting case, when all relevant evidence will be before the Court.  At today’s hearing it was made abundantly clear to the father that the only basis upon which the mother would countenance an agreement to resolve the proceedings today was that she have sole parental responsibility and that there be a notation which reflected that the father has no entitlement to see the children face-to-face or to communicate with them.

15. I am satisfied, for the purpose of any subsequent hearing, that the father knows of the orders that the mother seeks and has left court today knowing that orders will be made in those terms in the event that it is communicated that the mother forgoes her costs application.  Accordingly, there is no issue, as far as I am concerned, of natural justice or procedural fairness not having been accorded to the father.

16. I adjourn the matter to 9 am on Friday, 27 April.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 24 April 2018.

Associate: 

Date:  14 May 2018