Kolovos and Kolovos (No.2)
[2010] FMCAfam 51
•2 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOLOVOS & KOLOVOS (No.2) | [2010] FMCAfam 51 |
| FAMILY LAW – Costs dispute. |
| Family Law Act1975, s.117 |
| Applicant: | MS KOLOVOS |
| Respondent: | MR KOLOVOS |
| File Number: | MLC 6862 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 24 November 2009 |
| Date of Last Submission: | 4 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Fronistas |
| Solicitors for the Applicant: | Antippa Lawyers |
| Counsel for the Respondent: | Mr P. Davis |
| Solicitors for the Respondent: | Maria Barbayannis & Co. |
ORDERS
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Kolovos & Kolovos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6862 of 2008
| MS KOLOVOS |
Applicant
And
| MR KOLOVOS |
Respondent
REASONS FOR JUDGMENT
Under cover of a letter dated 3 December 2009, the respondent father seeks that the applicant mother pay half of his costs of the proceeding, commencing on 27 August 2009.
By way of contrast, the mother seeks that the respondent pay, on an indemnity basis, her costs of the proceeding commenced on
29 July 2008, and the contravention proceedings filed by her on
12 March 2009, and applications in a case filed 12 March 2009 and
21 August 2009.
For the reasons that follow, I have concluded that neither side should succeed and that each party should bear the entirety of their costs of the proceeding.
The Substantive Issues in the Proceeding
Although there were all too many issues before the Court, the essential contest between the parties related to two issues. The first issue was the circumstances of the child of the parties, [X]. Despite some to-ing and fro-ing, the ultimate position of the mother was that the child live with her and spend only supervised time with the father. The father’s position was that the child should live with him and spend time with the mother.
Although there were a considerable number of sub-issues, the issue that occupied most of the Court’s time was the extent to which each of the parties had cared for [X] and brought her up and furthermore and particularly, whether or not [X] had been the subject of sexual abuse by the father and/or members of his family.
The second issue was the property dispute between the parties.
It is fair to say that, as a broad conclusion, the father was entirely successful in rebutting the assertions of sexual misconduct made against him and all members of his family. He was not successful in achieving the children’s orders that he sought, because I determined that [X] should live with her mother and spend time with her father, unsupervised as he sought.
So far as property issues were concerned, I found very heavily in favour of the mother. I gave her 90 per cent of the available pool. This was not, however, a 100 per cent result for the mother.
General Observations
The written submissions of the father run to some 13 pages and those of the mother to 23 pages. Both are, in my view, prolix.
Curiously enough, while both parties were in my view prolix in their conduct of the case, the length of their written submissions as to cost is not wholly at variance with the extent of prolixity with which they conducted the proceedings.
In making these remarks, I should make it clear that I make no criticism of counsel who would, in a case involving such heightened emotions as this, have been under the strictest instructions to pursue every point. The fact that they were unable to control their clients and to reduce the course of the trial is understandable, given the intensity of the emotions that the parties so vividly displayed.
Nonetheless, this was a trial that could, and should, have been conducted within the original four-day estimate, and both parties contributed in my view in a material way to its prolongation. As a matter of impression, I felt this was contributed to more by the mother and her side, but both parties in my view properly bear criticism in this regard.
It should also be noted that it was always the father’s case, exemplified by the evidence of the father and his own mother, that the mother not only was not truthful in the assertions made about sexual abuse of [X], but that she made these allegations consciously and wittingly to deprive the father of spending time with his child.
In this regard the father’s case was wholly unsuccessful. While I roundly rejected all the allegations of sexual abuse of [X], I made it clear that I thought that this was not done wittingly and spitefully, as the father alleged, to deny him contact with the child.
It should also be noted that while I made a number of findings as to fact which roundly disbelieved the father’s evidence, I formed the view that both the primary parties in the proceedings were very unsatisfactory witnesses. To the extent that the written submissions of the parties sought to make much of the success of their clients, I would point equally readily to their failures.
With these general remarks in hand, so to speak, I turn to the specific consideration of the matters contained in s.117 of the Family Law Act1975 (“the Act”).
Section 117
It is not necessary to get bogged down in a detailed analysis of the legislation. The law in relation to s.117 has been referred to in the written submissions of the parties and does not require elaboration. The general rule is that each party bears their own costs (s.117(1)), but that section is subject to s.117(2). The Court, under s.117(2), must be “of the opinion that there are circumstances that justify it in doing so” before it may make any order as to costs, and that power is itself subject to subsections (2)(a), (4) and (5). In the circumstances of this case, only s.117(2)(a) is relevant.
I turn now to consider each of the matters set out in s.117(2)(a).
The Financial Circumstances of Each of the Parties to the Proceeding
These proceedings raged for day upon day upon day, with counsel on each day, and solicitors usually present. The costs must have been horrendous. Each and every interlocutory step was pursued with a diligence that reflected the intensity of the parties’ emotions. The legal bills for both sides must have been vast for a proceeding of this sort.
Nonetheless, both the father’s income and that of the mother are ostensibly extremely low. The father is unemployed and the mother is a full-time stay-at-home mother.
It is readily apparent, and indeed was to me from a very early stage in the proceeding, that the parties must have been in each instance calling upon the help of their close-knit extended families to conduct the proceeding. As I observed in my Reasons for Judgment, the nature of these families’ relationships with one another is such that I do not doubt for an instant that the primary litigants will not be required to repay any moneys that may have been advanced to them to conduct the proceeding.
Leaving aside minor issues as to chattels, the substantial asset of the parties’ relationship is the former matrimonial home, which the mother will largely retain. That of course is an asset in that it is, after all, where she lives with the child, and there is no reason to suppose that she has any desire to sell it, nor that it would be in her interest to do so.
The father will receive a sum of approximately $43,000 but he has to re-establish himself if he does not, as is of course entirely possible, continue to live with his parents.
In my view, neither party has a very significant income and any order for costs in this case would likely be severely distorting in the light of the overall position of the parties’ finances. This does not mean that a costs order should not otherwise be contemplated, but it is sufficient to say for these purposes that neither party in truth has anything much in the way of truly disposable income or assets.
Whether Any Party to the Proceeding is in Receipt of Legal Aid
Neither party appears to be receiving Legal Aid.
The Conduct of the Parties to the Proceeding
Both sides make criticism of the other party’s conduct and in my view, both sides are at least in part correct. Without traversing each and every matter of criticism, it is fair to say that the father has failed to co-operate with the discovery process adequately, and has generally been inadequate in responding to Court orders as to the production of materials and the like. Against this, however, it must be said that much of what was required from the father was in my view overly detailed and exaggerated and unnecessary. While the primary blame lies with the father, the conduct of the mother and her legal advisers in respect to matters to do with discovery also warrants some measure of criticism.
I also accept countervailing criticisms of the mother. As I pointed out in my Reasons for Judgment, at least one of the Notices of Child Abuse should never have been filed and was clearly tactical in its nature. Likewise, the suggestion that the proceeding be adjourned and referred to the Family Court at the commencement of the trial had about it an all-too-obvious element of tactical skirmishing.
Much has been made by both sides, more particularly the mother, of the fact that I made factual findings critical of the other. I repeat again that I found both the primary witnesses unsatisfactory in the extreme. If there were ever a case of the pot and the kettle, this is it.
In my view, the conduct of the parties generally was thoroughly unsatisfactory, albeit for reasons with which I have some sympathy. The nature of the circumstances of this case, and the various allegations which arose, was always going to make the parties hypersensitive and hyperactive. It is unfortunate that the solicitors on both sides, and to a lesser extent counsel, were unable to rein in the enthusiasm of their clients for the combat, but in the ultimate I think each side’s conduct just about weighs each other out.
Whether the Proceedings were Necessitated by the Failure of a Party to the Proceeding to Comply with the Previous Orders of the Court
Here I note the contravention application brought before Federal Magistrate Riley by the mother, which points to orders made by her Honour on 16 March 2009. The orders were not perhaps as unequivocally successful for the mother as she now asserts. Both sides were ordered to file and serve an affidavit of documents. While the respondent father had to attend upon Dr S for a psychiatric report, I note he appeared in person before her Honour.
While much is made by the mother of the necessity imposed upon her to issue subpoenas by the father’s alleged failure to co-operate, the reality is that much of the material subpoenaed was of little, if any, assistance to the Court, and reflects more the overarching ferocity of the case than a significant failure by the father to comply with his obligations.
Whether any Party to the Proceedings has been Wholly Unsuccessful
Neither party has been wholly unsuccessful in either aspect of the proceedings, despite the force with which their submissions argue the contrary. I give proper recognition to the fact that the mother’s allegations of sexual abuse of [X] were roundly disbelieved. Nonetheless, there was a certain amount of very disturbing material produced by [X], which might reasonably have supported the mother’s, albeit self-serving, views that abuse might have occurred. Furthermore, and by way of contrast, the father’s equally over-stated and shrill assertion that the mother had deliberately invented all these allegations was equally unsuccessful.
The father was roundly unsuccessful in the property proceedings but has, after all, achieved a payment to him in excess of $40,000. He has not been wholly unsuccessful.
Under this heading, albeit that it might have been dealt with elsewhere, I would note in passing the submissions made by the mother about the necessity to call the evidence of Mr W, certified accountant. I disallowed the evidence that Mr W was designed to gainsay. Nonetheless, there were better ways open to the mother to have responded to the affidavit of Mr K. A better forensic judgment would have been simply not to respond at all and attack that report in cross-examination. Alternatively, an application could have, and should have, been brought to strike it before the proceedings started. Once again, the fact that the mother spent a large sum of money responding to a report which quite clearly was never likely to achieve any forensic weight shows more about the heightened emotional overlay that the case involved than any kind of objective judgment.
Offers to Settle the Proceedings
No-one has suggested that there are any such relevant offers in this proceeding.
Such Other Matters as the Court Considers Relevant
It is unfortunate that the parties have spent yet more time and money putting in such comprehensive submissions on an issue where in my view the outcome should have been apparent from the start. I have made significant criticisms of the cases advanced by both parties in my Reasons for Judgment. The fact that they have still seen fit to waste their money and their time only goes to reinforce the very vivid impression I have had throughout this proceeding of the intensity of the parties’ emotions. Just because the parties are so desperately upset with one another and the two families locked in so much unfortunate conflict, does not mean that there is any force in the submissions put forward.
Conclusion
I have given careful thought to each and every matter set out in the parties’ written submissions. If they are not referred to above, it is because, in my view, they add nothing to the debate. For the reasons I have described and bearing in mind the Court has an overarching discretion in matters of this sort, I decline to exercise that discretion in favour of either party.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 2 February 2010
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