Gerasimov and Zlotnik (Costs) - [2016] FamCAFC 107

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

2015

APPEAL NUMBER:

142

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gerasimov and Zlotnik (Costs)

Details

AGLC: Gerasimov and Zlotnik (Costs) [2016] FamCAFC 107
Case: [2016] FamCAFC 107
Decision Date: 22 June 2016

CaseChat Overview and Summary

In Gerasimov and Zlotnik, the applicant sought an order for costs against the respondent, following a dispute that had been determined in their favour in earlier proceedings. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant contended that the costs sought were reasonable and necessary, incurred in the course of the proceedings.

The court was tasked with determining whether the costs claimed by the applicant were indeed reasonable and necessary. This involved examining the amount and nature of the costs, as well as considering the conduct of both parties throughout the proceedings. The court also had to assess whether any adjustments to the costs claimed were warranted, given the circumstances of the case.

After reviewing the evidence and arguments presented, the court found that the costs claimed by the applicant were reasonable and necessary. The court noted the complexity of the issues involved and the extensive work undertaken by the applicant’s legal representatives. Consequently, the court ordered that the respondent pay the costs of the applicant within twenty-eight days, fixed in the amount of $2,390.03.

Orders

Orders of the court

That the respondent pay the costs of the applicant within twenty-eight (28) days of today, fixed in the amount of $2,390.03.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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