Maragos and Maragos

[2011] FamCA 148

FAMILY COURT OF AUSTRALIA

MARAGOS & MARAGOS [2011] FamCA 148

FAMILY LAW – COSTS - Assessment

Family Law Act 1975 (Cth)

APPLICANT: Ms Maragos

RESPONDENT: Mr Maragos

FILE NUMBER: MLC 7094 of 2008

DATE DELIVERED: 24 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Salamanca

SOLICITOR FOR THE APPLICANT: Ferraro & Company Pty Ltd

SOLICITOR FOR THE RESPONDENT: Voitin Walker Davis Lawyers

Orders

1. That the contravention application filed 8 December 2010 be withdrawn.

2. That all interim applications be otherwise dismissed.

3. That the husband pay the wife’s costs by agreement and in default of agreement as assessed.

4. For the purposes of paragraph 3, the costs referred to shall be for the following:

   (a)the instructions to issue proceedings;

   (b)the preparation of the application in a case, the contravention application, all affidavit material filed in those proceedings and the attendances associated with the preparation and completion of those affidavits;

   (c)$2100 for counsel’s fees in respect of the hearing dates 20 December 2010 and 24 February 2011;

   (d)all solicitors attendances according to the family law scale associated with the matter as may be found reasonable after 20 December 2011.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Maragos & Maragos is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7094 of 2008

Ms Maragos

Applicant

And

Mr Maragos

Respondent

REASONS FOR JUDGMENT

1. I propose in this particular matter to refuse the application for the adjournment, on the basis that the proceeding before me, which was a contravention application, was filed in the court on 8 December 2010, returnable on 20 December 2010. 

2. There was clearly a problem in relation to service under the rules, but that problem was overcome by the parties’ lawyers appearing on 20 December 2010 before the Senior Registrar.  The application on that day was adjourned, by consent, to 24 February 2011.  The Senior Registrar noted, by consent of the parties, that their respective costs were reserved. 

3. The application today has been made by the husband, through his lawyer, to adjourn the proceedings on the basis that he has not had sufficient time to get instructions.

4. The husband is in Sydney, and his absence is not of significance because, from his perspective, it is only a matter relating to costs.  That became a little clearer when the wife’s counsel withdrew the application for the contravention, meaning that the costs issue was the only issue then alive. 

5. Having regard to the fact that the issue has been the subject of correspondence between the parties, and there was no agreement, and having regard to the time that has elapsed since 20 December 2010, it is not appropriate for this matter to be adjourned further. 

6. I propose therefore to allow the wife to proceed with her application for costs.

   RECORDED:  NOT TRANSCRIBED

1. Section 117 of the Family Law Act provides that in proceedings in this Court each party to the proceedings bears their own costs. Subsection (2) of section 117 provides, however, that the Court can depart from that principle if there are circumstances justifying it so doing, and in the event that the court is so satisfied, it must contemplate the relevant considerations in s 117(2A).

2. The facts in this case are relatively clear.  In August 2009, there was an order which, on its face, provided a clear obligation to be fulfilled forthwith.  There was no date by which the provision of documents was to have occurred that would have enabled a child of the marriage to obtain a passport.  In my view, it is very significant, in this case, that that consent order arises out of a minute drawn by the parties.  There can be no suggestion of any misunderstanding about what it meant.  The parties drew up the minute themselves. 

3. Albeit that time passed by, the evidence is clear that in October 2010, in anticipation of an overseas trip, a request was made for the husband to fulfil his obligations under the 2009 order.  There is uncontested evidence in this case that the husband refused, and threw away a letter that made the request. 

4. The husband’s actions precipitated an amount of correspondence between the respective legal practitioners.  Whilst one might scrutinise the language with great care, the reality is that whatever each of the lawyers had in mind, the fact was that a trip which had been anticipated had to be changed, and a new trip was fixed for this child which was to take place in early January 2011.  It would not have taken a lot of imagination to understand that the passports office does not do things overnight and, particularly in relation to children, it has to be very careful before issuing passport documents.

5. The clock was ticking.  Having had the trip changed, or delayed, it became imperative that action be taken, particularly also having regard to the impending Christmas period.  There is evidence, which is unchallenged, about an incident that occurred on 3 December, in which the husband was, for some strange reason or other, at the house of the child around midnight.

6. The only inference I draw was that, on that date, he was saying that he would not cooperate in the compliance with the order from August 2009.  There is correspondence between the practitioners in which there is a suggestion from the husband’s side that he would sign documents if he was aware of the child’s itinerary.  That, certainly, is a different issue to the completion of his obligations under the order. 

7. Similarly, the husband said, in correspondence through his lawyers, that what he wanted was the document properly completed by the wife, and delivered to him.  None of those interpretations can I find in the orders, which I again say was drawn by the parties. 

8. What I found difficult in this case was what exactly happened around 7 December.  It seems common ground that the husband signed the documents on 3 December, but on 7 December those documents were still in the care of his solicitors.  The wife’s solicitors, who, by that stage, had no doubt been given instructions that time was of the essence, endeavoured, presumably, through professional courtesy, to try and find out what was happening with the husband’s position. 

9. I am satisfied that there was no indication given to the wife’s solicitors that the documents were in the possession of the husband’s solicitors or that they were ready to be collected and/or delivered.

10. The question then remains as to whether or not it was appropriate for the action taken by the wife, no doubt on the advice of her solicitor, to file applications in this court. 

11. On 8 December, an application seeking that the husband be dealt with for contravening the 2009 order was filed, along with an application for an order that the husband sign the necessary passport application. 

12. What the wife was endeavouring to do was to have the court sign the passport application in the event that the husband failed to comply.  I am satisfied, in the circumstances, then, that on 8 December, at 2 o’clock, or thereabouts, in the afternoon, the wife had filed the necessary applications to bring the matter to a head.  Bizarre as it may be, only two hours later, the solicitors for the husband indicated that they held documents, signed by him.  What then flowed was a debate between the lawyers about whether the proceedings ought to be withdrawn and whether there ought to be payment for costs. 

13. In my view, there can be no argument that there are justifying circumstances for making an order for costs in relation to the issuing of the proceedings.  I then need to consider the period from 8 December up until the return date of the proceedings which was 20 December.  The husband’s position was that the wife should withdraw the proceedings, or they would seek costs.  During that period of time, the wife was still dealing with the relevant government department, so she was not in a position to know whether or not the proceedings could, or could not, be withdrawn or proceeded with on 20 December.  Quite frankly, neither could the husband. 

14. It seems to me, therefore, having been satisfied that there was a justifiable issue in the proceedings on 8 December, was the husband making some offer to ameliorate the wife’s costs?  In the period between 8 December and 19 December, rather than make such an offer, or suggestion to resolve the problem, the best I can see on the material is that the husband was saying if the wife did not withdraw her application then he would be seeking costs.  In my view, that was unfounded and unnecessary.

15. The third stage of this unfortunate litigation was on 20 December, when the parties appeared before the Senior Registrar.  The Senior Registrar could have dealt with the issue of the passport documents, but he could not have dealt with the contravention.  The contravention was outside of his jurisdiction.  However, it was clear by that stage, if it was not already clear on 8 December, that, subject to the necessary documents being delivered and the department completing its task, the issue of the enforcement of the orders of August 2009 was no longer necessary.  That indication was given to the Registrar, and, for reasons best known to the parties themselves, they consented to the Senior Registrar ordering that the costs of both parties be reserved.

16. The critical question, in respect of this third phase, however, is whether or not there was, again, some offer or suggestion to ameliorate the costs, at least that the wife had incurred, having issued the proceedings in the first place.  It seems common ground between the parties today that no such offer has been made.  On 20 December, the Senior Registrar adjourned the proceedings into the judicial duty list today, having regard to the fact that the contravention application was still alive and therefore outside of his jurisdiction.  That left two months for the parties to sort out what they had indicated to the Senior Registrar they were going to do, namely, withdraw the contravention application.  But, again, the dispute was about costs.  There is again, was no suggestion that there had been any offer made by the husband to ameliorate the costs incurred by the wife.

17. In those circumstances, it is beyond doubt that there is a justifiable circumstance here to say that the principle that each party pay their own costs in s 117(1) should not apply. But in considering what order, if any, should be made, one has to turn attention to s 117(2A). In this case, the financial circumstances of each of the parties to the proceeding are not clear. However, counsel for the wife, and the legal practitioner for the husband have, no doubt, been briefed to be here today, and no one has suggested that there is a Legal Aid consideration. In addition, Mr Mihailidis, on behalf of the husband, has indicated that his client was in Sydney today and could not be here because of his business commitments. I conclude, therefore, that there is no suggestion of any impecuniosity of either of the parties, but particularly the husband.

18. A third consideration relates to the conduct of the parties to the proceedings, relating to the way in which they have approached the proceedings.  The section concerns whether there is compliance in respect of things such as pleadings, discovery, inspection, and submissions of fact.  One of the matters that I can take into account, however, is whether or not the approach of one, or both, of the parties was to waste the other’s time, and/or the court’s.  It seems to me that the stand-off, to which I have referred in relation to costs, is a matter that I can take into account here. 

19. A fourth consideration in the section relates to whether or not the proceedings were necessitated by the failure of a party to comply with previous orders.  In my view, it is beyond doubt that the husband had failed to comply with the order of August 2009.

20. A fifth consideration is whether any party to the proceedings has been wholly unsuccessful.  It can hardly be said that the wife was wholly unsuccessful in this case, having regard to the fact that the husband complied with his obligations, presumably on the 3^rd, but that was not brought to the attention of the wife until 8 December 2010. 

21. A sixth consideration is whether or not the party to the proceedings has made an offer in writing, to settle the proceedings and any terms of such offer.  It is sometimes thought that that particular provision relates to offers of settlement in property matters.  I think it is much wider than that.  It relates to issues such as the question of sorting issues of costs out between the parties to avoid further proceedings.  Had the parties sorted the issue out, there would not have been a need for a hearing on 20 December, and there certainly would not have been an order made to adjourn the matter to the judicial duty list today.  Under those circumstances, having found there are justifiable circumstances, I see no reason, taking into account those matters, why an order for costs ought not to be made.

22. The question that then remains is how that is to be approached.  Mr Salamanca, on behalf of the wife, said that a general global bill had been prepared by his instructor seeking $9900.  Unfortunately, that approach does not really assist me because it does not necessarily comply with the schedule to the rules.  Whilst it may, in fact, be less than the rules, it does tend to draw the Court into an argument about indemnity costs.  This would not be a case in which I would make an order for indemnity costs, and, therefore, the scale should apply.  The other difficulty is whether or not I ought to put the parties through the inconvenience of an assessment with a registrar.  I have weighed that up and decided it would not be appropriate for me to do that, having regard to the fact that the very reason the parties are here today is because they cannot agree about costs.

23. That would tend to suggest that if I made an order for an assessment, it would be likely that there would be a further dispute.  For that reason, what I propose to do is to give the parties an opportunity to work out what it is that the costs should be, based upon the scale, but having regard to the following guidance.  I propose to make orders that the husband pay the wife’s costs for the following items:  the instructions to issue the proceedings, the preparation of the application and all supporting affidavit material, and the contravention applications, and the attendances on the respective witnesses, and the wife, leading up to the execution of those documents.  In other words, I do not propose to allow all of the matters that were going on, in terms of negotiations, prior to the time at which the wife gave instructions for the documents to be issued.  But I will give costs in relation to the documents themselves, and the attendances, including the instructions for their preparation.

24. I propose to make an order for costs for counsel on 20 December, including a conference.  That is beyond doubt, having regard to the fact that not only did the Senior Registrar certify that costs were appropriate, but he also made paragraph 3 of his orders certifying that is was reasonable for counsel to be briefed. 

25. The difficulty is that the scale for those sorts of items is limited to $900 or thereabouts.  But there is a further allowance under the rules for a conference fee, which unfortunately is, perhaps, a little out of date, but it is around $300. 

26. Accordingly, I propose to allow counsel $1200 for 20 December, $900 for today’s attendance, together with all of the solicitors’ attendances associated with the matter after 20 December. 

27. Those attendances will include all correspondence between the practitioners, and any attendances of the solicitor upon counsel arranging the necessary hearing today.  In the event that the parties cannot reach agreement about those particular items, I will have no choice but to have the matter assessed on those bases.  Accordingly, I propose to make orders for costs in those terms. 

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 February 2011.

Associate: 

Date:  7 March 2011