Gerasimov and Zlotnik (Costs)
[2016] FamCAFC 107
•22 June 2016
FAMILY COURT OF AUSTRALIA
| GERASIMOV & ZLOTNIK (COSTS) | [2016] FamCAFC 107 |
| FAMILY LAW – COSTS – Where the respondent instituted an appeal against interim parenting orders and subsequently filed a Notice of Discontinuance – Where the applicant seeks that the respondent pay her costs of the discontinued appeal in a fixed amount – Whether there are circumstances that justify an order for costs being made – Where the amount of costs sought is reasonable – Respondent to pay the costs of the applicant in a fixed sum. |
| Family Law Act 1975 (Cth): s 117 |
| Zlotnik & Gerasimov [2015] FamCAFC 174 Zlotnik & Gerasimov [2016] FamCAFC 62 |
| APPLICANT: | Ms Gerasimov |
| RESPONDENT: | Mr Zlotnik |
| FILE NUMBER: | SYC | 503 | of | 2015 |
| APPEAL NUMBER: | EA | 142 | of | 2015 |
| DATE DELIVERED: | 22 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Murphy and Aldridge JJ |
| HEARING DATE: | 22 June 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 August 2015 |
| LOWER COURT MNC: | [2015] FamCA 646 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Vasilyev of Morris, Alexander & Nelson by telephone link |
| FOR THE RESPONDENT: | Mr Zlotnik by telephone link |
Orders
That the respondent pay the costs of the applicant within twenty-eight (28) days of today, fixed in the amount of $2,390.03.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gerasimov & Zlotnik has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 142 of 2015
File Number: SYC 503 of 2015
| Ms Gerasimov |
Applicant
And
| Mr Zlotnik |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ryan J
Before the court is an Application in an Appeal filed by the respondent to the appeal, Ms Gerasimov (“the mother”) on 2 June 2016 seeking that the appellant, Mr Zlotnik (“the father”) pay her costs incurred as a result of the father’s now discontinued appeal. Those costs are fixed in the amount of $1,723.33. The mother also seeks that the father pay her costs of this application for costs by way of preparation in the amount of $429.00 plus an additional $237.70 being the scale rate for the costs of the attendance today.
The father’s appeal concerned interim parenting and other orders made by Rees J on 5 August 2015. In summary, those orders varied earlier consent orders of 6 May 2015 which allowed the parties’ then three and a half year old son, B (“the child”) to spend five weeks in Country J with the mother and maternal grandmother, such that the child would spend approximately five months in Country J and return to Australia in late December 2015. The primary judge also made orders for the child’s time with the father upon his return to Australia, and dismissed the father’s oral application that her Honour disqualify herself from determining the application which culminated in the orders of 5 August 2015.
The father opposes the application for costs and this morning presented written and oral submissions and various other documents as to why the application for costs should be dismissed. The focus of his oral submissions this morning has been on the apparent merits of the appeal, I say at the outset I am not persuaded by those submissions that the appeal was presented on reasonable grounds.
Procedural history
So as to give the application some context, it is necessary to record a few seemingly uncontentious background facts. These are largely taken from my reasons for judgment in relation to the father’s application for expedition of the appeal, published as Zlotnik & Gerasimov [2015] FamCAFC 174.
The parties were both born in Country J and have settled in Australia. They lived together from late 2004 until early 2011 and again from late 2011 to early 2013. They have one child who was born in Australia and who is currently four years of age. The child was approximately one year of age when the parties separated.
From the time of his birth the child has been predominantly cared for by the maternal grandmother who resides in the mother’s home. This has enabled both parents to work full-time.
The maternal grandmother travelled to Australia from Country J shortly prior to the child’s birth in late 2011 and has remained in Australia since that time on a three year parent visa. The maternal grandmother’s parent visa allows her to stay in Australia for a period of 12 months upon condition she then departs for 6 months so she can return for a further 12 months.
As a result of the maternal grandmother’s visa requirements, the child has spent approximately four - five months each year in Country J with the maternal grandmother and sometimes with the mother as well. Historically the father consented to the child travelling to Country J for those trips.
In mid 2015 the mother proposed a similar course be adopted whereby the child would travel to Country J from June 2015 until December 2015. The father did not agree with the proposal and proceedings were instituted to determine the dispute. Those proceedings were heard by the primary judge on 6 May 2015 and 20 July 2015 and culminated in the orders of 5 August 2015 which were the subject of the father’s appeal.
As earlier noted, those orders provided for an extension of the child’s time in Country J, such that he would return to Australia on 28 December 2015 rather than 8 August 2015 as contemplated by the 6 May 2015 consent orders. Further orders were made for the child to spend time with the father on a gradually increasing basis upon his return to Australia. I note the child has since returned.
On 26 August 2015 the father filed his Notice of Appeal and application for expedition of the appeal.
The expedition application came before me on 9 September 2015 for hearing. On that occasion I made orders dismissing the application and delivered ex tempore reasons for judgment (Zlotnik & Gerasimov (supra)). Costs of that application were ordered to be costs in the appeal.
Directions were made concerning the appeal on 18 November 2015. In particular, these required that the appeal books be filed no later than 15 January 2016. The appeal books were not filed and on 23 February 2016 the father was granted an extension of time to file the appeal books to 8 February 2016. In addition, the father was granted an extension of time to file and serve any amended Notice of Appeal and his summary of argument by 24 March 2016. Given that the appeal was subsequently discontinued, the timing of the filing of the appeal books is of no consequence.
On 5 May 2016 the father filed a Notice of Discontinuance, which notice was served on the mother the same day.
On 2 June 2016 the mother filed her application for costs.
It is worth noting that on 22 February 2016 the father commenced a second appeal (EA 25/2016) by an Application in an Appeal for an extension of time to appeal against orders made by Rees J on 6 May 2015. That application was dismissed with costs by Aldridge J on 28 April 2016 (see Zlotnik & Gerasimov [2016] FamCAFC 62).
Discussion
The law in relation to costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”).
The starting position is that in proceedings under the Act, parties ordinarily bear their own costs (s 117(1)). Unlike other jurisdictions, costs do not follow the event. However, the court may depart from the usual rule if it is satisfied that there are circumstances which justify an order for costs. Section 117(2A) of the Act sets out a list of factors which the court may consider in determining whether there are circumstances justifying an order for costs, and also what the quantum of that order should be. In my view, there are justifying circumstances, those being an appeal was initiated and then discontinued and thus the respondent has incurred costs unnecessarily. This factor also weighs in favour of an order for costs.
Other relevant s 117(2A) factors include the parties’ financial circumstances and the offer to settle the proceedings made by the mother.
There is limited evidence before the court concerning the parties’ financial circumstances. At the time of the hearing before the primary judge, both parties were engaged in full-time employment. Further, by virtue of the interim orders of 5 August 2015, the child spends the majority of his time living with the mother, albeit with the maternal grandmother undertaking a component of the child’s care while the mother is at work. The effect of this is that the mother carries a significant component of the costs for the child.
There is no evidence before the court as to the father’s financial circumstances. However, the father points out in his written submissions filed today that he is self-employed and relies on the fact that he has not disclosed his financial circumstances. I struggle to see how that could weigh in his favour.
The application of s 117(2A)(a) weighs in favour of the mother.
The mother deposes that she has made “a genuine attempt to resolve the matter of costs” with the father by email, however, the father refused her offer. In support of this the mother has annexed a chain of emails to her affidavit which passed between her and the father. Relevantly, the first document attached to her affidavit which purports to be the beginning of the email chain is undated and does not display any details of the time and date it was sent, from what email it was sent, or to whom it was sent. The text of the asserted email is all that appears and that text is as follows:
Dear [the father],
I have an orders with reserved cost from 9 September 2015: “That the costs of this Application be costs in the appeal” (please find the orders attached)
My cost was $1,895.66 (please find invoice attached)
We can get an agreement and you cover me $990 or I’ll apply to court to get a proper cost order that will cost me and you more money.
By the way I also spent about $1,500 on the Application in an Appeal filed by you 15 January 2016.
I hope we get an agreement and won’t waist more [the child]’s money. The due date is this Friday. Please let me know your decision before that.
Regards,
[the mother](as per original)
As noted earlier, although it is unclear from the email that it was actually sent to the father, his email attached to the mother’s affidavit shows he received it and responded to issues raised in it. Relevantly the father said:
Hi [the mother],
I appreciate you have piled up considerable amount of debt opposing my court applications for procedural orders, like extension of time, expedition of appeal, etc. I’m very glad to hear that you agree with me that we (you) should stop wasting [the child’s] money on lawyers.
To me that primarily means working out a mutually agreeable Consent Final Orders to be settled without further legal costs.
…
It can be seen that the mother offered to resolve the question of costs for a modest amount which, in my view, the father was foolish to ignore. The mother’s offer to settle the question of costs in this manner weighs in her favour. Otherwise as I said at the outset I am not persuaded that the appeal was presented on reasonable grounds.
The net effect of these matters is that I am satisfied an order for costs should be made in favour of the mother. The question which then arises is what should the quantum of those costs be?
Although the mother’s actual costs considerably exceed the amount sought, she sensibly presses for costs in an amount which I am satisfied is appropriate.
As to the costs of this application, the same rationale applies and the mother should have her costs as sought albeit in relation to the appearance today, on a party/party basis and by reference to the scale, which I have earlier indicated, we are informed is $237.70.
I would thus order the father to pay the mother’s costs of this application in the constituent parts of $1,723.33, $429.00 and $237.70 which gives a total figure of $2,390.03.
Murphy J
I agree with the order proposed by the presiding judge and with her Honour’s reasons and I have nothing to add.
Aldridge J
I also agree.
Ryan J
The orders of the court will be that the respondent pays the costs of the applicant within 28 days of today fixed in the amount of $2,390.03.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy and Aldridge JJ) delivered on 22 June 2016.
Associate:
Date: 24 June 2016
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