Gerasimov and Zlotnik (No 2)

[2015] FamCA 889

FAMILY COURT OF AUSTRALIA

GERASIMOV & ZLOTNIK (NO 2) [2015] FamCA 889

FAMILY LAW – COSTS

Family Law Act 1975 (Cth) s 117

Hawkins and Roe (2012) 47 Fam LR 526

APPLICANT: Ms Gerasimov

RESPONDENT: Mr Zlotnik

FILE NUMBER: SYC 503 of 2015

DATE DELIVERED: 23 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Kyle Family Lawyers

THE RESPONDENT: In Person

Orders

IT IS ORDERED

1. That the application for costs filed by the mother on 7 September 2015 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 503  of 2015

Ms Gerasimov

Applicant

And

Mr Zlotnik

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court concern parenting arrangements for B who will be four years old in January 2016. Consent Orders were made on 6 May 2015 which allowed the child to travel to Country J with his mother and grandmother until 8 August 2015. On 20 July 2015, after a report had been prepared by a single expert, Dr E, the mother sought to vary the Consent Orders to allow the child to remain in Country J with his grandmother after the mother returned to Australia on 8 August 2015. The father opposed that application. Judgment was handed down on 5 August 2015.

2. The mother now asks the Court to order that the father pay a portion of her costs relating to the proceedings after the report of Dr E became available.

3. The mother relied on three affidavits, two of them annexing transcripts of the proceedings and filed written submissions.

4. The father, although directed to file any affidavit material upon which he relied in relation to the application for costs, did not do so but filed written submissions on the day of the hearing.

5. The mother’s application related to five separate and discrete amounts which were helpfully set out in the written submissions of the father as follows:

   Preparation for and attendance before Registrar Campbell on 23 June 2015;

   Preparation for and attendance before Johnston J on 29 June 2015;

   Preparation of application to discharge of the Orders of 6 May 2015;

   Attendance at Court on 20 July 2015;

   Transcript of the hearing on 6 May 2015;

   Filing fee – mother’s Application in a Case (I assume in relation to the mother’s application to vary the Consent Orders of 6 May 2015.)

6. The total sought was $4,579.11.

7. The brief chronology required to understand the mother’s application is as follows:

   ·    On 6 May 2015 after Consent Orders were made, I stood the matter over for further determination before the Senior Registrar.

   ·    On 23 June 2015 the Senior Registrar declined to deal with the matter as he did not have the power to make an order relating to the removal of a child from the Commonwealth of Australia.

   ·    On 29 June 2015 the matter came before Johnston J in a Judicial Duty List. His Honour declined to deal with the matter because no proper application had been filed by the mother.

   ·    On 20 July 2015 the mother’s Application in a Case was listed before me and judgement in that application was delivered on 5 August 2015.

8. The general principle in relation to costs in Family Law proceedings is that each party should pay his or her own costs. In Hawkins and Roe (2012) 47 Fam LR 526, the Full Court said:

   [13] In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.
   [14] In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

   And

   [147] While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

9. In relation to any application for costs, the provisions of s 117(2A) of the Family Law Act 1975 (Cth) apply. Those provisions are set out below:

   In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)  such other matters as the court considers relevant.

10. I propose to deal with each relevant factor in turn.

11. In relation to the financial circumstances of the parties, the mother’s evidence is that she earns $120,000 per annum. The only evidence before the Court of the father’s financial circumstances is that he told Dr E that he can earn $800 per day as a consultant. The father sought to tender a letter from his employer indicating that he was no longer employed. The tender was opposed and he was not allowed to tender the document. The time for the father’s evidence to be filed had long passed. Even on the evidence which had been filed, any disparity in the financial circumstances of the parties would not, of itself, have justified the making of an order for costs.

12. Neither party was in receipt of legal aid.

13. The mother relied heavily on the father’s asserted dishonesty. In relation to the proceedings before Senior Registrar Campbell (“the Senior Registrar”), nothing which the father said or did changed the fact that the Senior Registrar found he had no power to deal with the application.

14. In relation to the proceedings before Johnston J, nothing that the father said or did would appear to have influenced his Honour’s refusal to deal with the mother’s case because there was no application before him to vary the Consent Orders made 6 May 2015.

15. In relation to the proceedings before me on 20 July 2015, the mother relies on the fact that the father had not accepted an offer of settlement largely in accordance with Dr E’s recommendations. I accept that the mother’s offer, in relation to the issue of the child’s remaining in Country J, was in accordance with Dr E’s recommendations. However, that was not the only issue to be determined. As the father submitted, his Initiating Application sought interim orders relating to parenting arrangements for the child after he returned from Country J. The mother’s settlement offer did not specifically deal with that issue.

16. The mother’s draft Minute of Consent Orders, which was forwarded to the father and upon which she relied sought the following order:

    Following the child’s return to Sydney, he will spend time with the father, such time to increase in defined steps building to substantial and significant time over a period of approximately 6 months, with the parties to use their best endeavours to reach agreement on interim parenting orders following the mother’s return to Sydney in August 2015.

17. The father’s case was that the mother was unreasonably restricting his time with the child. The orders proposed by the mother were unenforceable and led to no concrete arrangement for the child’s time with his father after he returned to Australia. It is unlikely that such orders would ever have been made. It was not unreasonable for the father to decline to agree.

18. The Orders which were made on 5 August 2015 provided for defined and certain parenting arrangements for the child, with respect to time with his father, after the child returns to Australia.

19. It follows that the mother has not demonstrated that the father should be liable for the filing fee of the application (which she was directed to file by Johnston J) or the costs of transcript.

20. The father’s position was always that it was not in the child’s best interests to live with his grandmother in Country J for an extended period when his parents were in Australia. The father at all times sought specific parenting orders for the child’s care in Australia. He was entitled to pursue those applications. Even had the father agreed to the mother’s proposals for the child to remain in Country J, the balance of the parenting issues were required to be determined.

21. Although the father did not accept Dr E’s recommendations in relation to the child’s care in Country J, I accept that he was motivated in so doing by the child’s interests and not by self-interest.

22. I am not satisfied that a consideration of the relevant factors leads to the conclusion that the father should pay the mother’s costs or any portion thereof.

23. The application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 October 2015.

Associate:

Date:  23/10/2015