Rilak & Tsocas (No 2)

[2018] FamCA 395

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO. 2) [2018] FamCA 395

FAMILY LAW – CONTRAVENTION – SECURITY FOR COSTS – where Applicant wholly unsuccessful – where security may stifle proceedings – where Applicant unable to provide security – where leave refused to rely on additional affidavit for interim hearing – application for costs – where costs awarded against the Applicant – where quantum of costs reserved.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 r 21.02(2)

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 18 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 18 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Watts McCray

It is Ordered that

Contraventions

1. Count one concerning the period 21 to 27 December 2015 and being a breach in respect of Orders 1.a) c) and d) of the Orders made on 4 December 2015 is dismissed.

2. The alleged contravention of Order 12 of the Orders made on 13 November 2015 that Mr Tsocas failed to cause B (the child) to speak to her mother for a period of half an hour, and that on 29 December 2015 Mr Tsocas failed to permit the child to speak in the mother’s language during supervised time, is dismissed.

3. The contravention alleging a breach of Order 12 of the Orders of 13 November 2015 on 16 March 2017 is dismissed.

Security for costs

1. Noting that an oral application for security for costs has been made today, it is ordered that that application is refused.

Filing of further affidavit material

1. Ms Rilak’s application to file a further affidavit in the current contravention proceedings is refused. 

2. The matter is listed for further hearing of the mother's application for contravention filed 15 November 2017 for the period of one day at 10am on Monday 27 August 2018.

3. On that day the mother is restricted to dealing with a maximum of five of the contraventions alleged in that application. 

4. The mother is to provide to the solicitors for the father, by notice in writing within 21 days of today’s date, her nomination of which of the five contraventions remaining in that application for contravention filed 15 November 2017 she will proceed with on that day. 

5. Within 21 days of today's date the mother is to advise the solicitors for the father, by notice in writing, of those portions of the two affidavits that she has relied upon to date that she intends to read in support of those five contraventions.

6. In the event that the father seeks to file material to be relied upon that day, whether for the purpose of answering the contravention proceedings, or for the purpose of seeking a security for costs order, or for the purpose of seeking any other procedural order, then such affidavits are to be filed and served 14 days in advance of that day. 

7. The above order does not oblige the father to file an affidavit in answer to the contravention proceedings.

Costs

1. The applicant pay the respondent's costs of today's proceedings.

2. The question of the quantum of the costs is reserved and the father is to file and serve any material he relies upon and written submissions in support of orders for quantum within 14 days of today's date. 

3. The mother is to file and serve any evidence she relies upon and written submissions in relation to quantum within 28 days of today's date. 

4. The matter will then be resolved in chambers without further oral hearing of the parties.

IT IS NOTED THAT

1. In the event that an application for security for costs is made or an application for a stay or some other such procedural application is made orally by the father on the next occasion, it is intended that it will be dealt with on the same day.

2. The mother is placed on notice that in the event that she is unsuccessful in the five applications for contravention on the next occasion that matter may be taken into account in determining her prospects for success in relation to the balance of the contraventions alleged in her application for contravention filed 15 November 2017.

3. In the event of non-compliance on the part of the mother, the father is at liberty to relist the matter on 48 hours’ notice before me.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter Ms Rilak has identified three contraventions she relies upon today. 

The first alleged contravention

1. The first of those contraventions has been set out by her as relating to the period 21 to 27 December 2015 and being a breach in respect of Orders 1.a) c) and d) of the Orders made on 4 December 2015 (I interpolate as they interact with the final orders made) and the previous stay orders made, being Orders of 13 November 2015, 20 November 2015 and then 4 December 2015 and being a number of the contraventions alleged at page six of the applicant's application to have the respondent dealt with for contravention filed 15 November 2017.

2. By judgment of 22 July 2016 Justice Rees dealt with the same contravention within charge one of the sequence of contraventions she dealt with on that day and dismissed that contravention.  That matter, having been dealt with to finality by Justice Rees, is dismissed here also on the basis that the matter has already been dealt with to finality by the Court, and pursuant to the doctrine of res judicata the application in respect of count one today is dismissed.

The third alleged contravention

1. Ms Rilak alleges that on 29 December 2015 Mr Tsocas was in breach of Order 1.e) of the Orders made 4 December 2015 by Justice Loughnan.  That breach relates to him not permitting their daughter B to speak in the mother’s native language during supervised time.  The reference in the Orders said to found the contravention application is as follows:

   1.e)      The Court notes that the father has no objection to the mother conversing with the child during supervised occasions in a language other than English;

2. It may be observed that portion of the Orders does not in fact constitute an Order.  It is not an order imposing an obligation upon the father, but rather is an observation of the representation made to the Court at the time of the making of the Orders.  Accordingly, absent the imposition of an obligation and absent it being able to be characterised as an order it cannot form the basis for contravention proceedings. 

3. I direct that the contravention allegation as outlined above is dismissed.

The second alleged contravention

1. It was alleged by count 2 in the proceedings today that the father contravened the Orders of 13 November 2015, specifically Order 12 of those Orders, on 16 March 2017, by failing to permit or facilitate his daughter the child to speak for a period of half an hour with the mother on that day. 

2. The mother has directed the Court to paragraph 56.6 of her affidavit of 15 November 2017 as being the evidence that she relied upon in support of that allegation of contravention.  That evidence does not establish the duration of the telephone call and absent some evidence to establish one way or another the duration of that telephone call there is not sufficient evidence taken at its highest to enable the contravention to be made out.  That is, it fails at a prima facie level.

3. I dismiss the contravention alleging a breach of Order 12 of the Orders of 13 November 2015 on 16 March 2017.

Security for costs

1. Application is made by Mr Tsocas that pending the hearing of any further contraventions flowing from the mother's application for contravention filed 15 November 2017 that the mother be caused to lodge security for costs, although the quantum of that security has not yet been the subject of submissions. 

2. The power to make such an order is contained at s 117 of the Family Law Act 1975 (Cth) (“the Act”) and requires consideration be given to the matters contained at s 117(2A) which include the financial circumstances of the parties to the proceedings, whether any party is in receipt of legal aid, the conduct of the parties in the proceedings, whether the proceedings were necessitated by failure to comply with previous orders, whether a party to the proceedings has been wholly unsuccessful, whether either party to the proceedings has made an offer in writing to the other party to settle the proceedings and such other matters as the Court considers relevant.

3. In addition, as set out by Justice Ainslie-Wallace in previous proceedings concerning this matter handed down on 13 October 2017, the principles that govern the making of an order for security for costs and in particular those matters that need to be considered in addition to the specific consideration set out at s 117(2A) of the Act are:

   a)the prospect of success of the litigation;

   b)whether the claim for security is made bona fide;

   c)whether or not an order for security would stifle the litigation;

   d) whether or not the litigation may involve a matter of public importance;

   e)whether or not there has been a delay in bringing the application for security;

   f)whether there would be difficulty in enforcing an order for costs.

4. Turning firstly to the financial circumstances of the parties, there is little to no evidence in relation to those financial circumstances. Before Justice Ainslie-Wallace the father, in the context of there being no evidence from the mother on that particular point, conceded that the mother had no ability to meet a costs order, and was not currently working.  I note that Justice Ainslie-Wallace imposed a security for costs order and I understand that no security was lodged.  This speaks to the proposition that the financial circumstances of the mother are such that she may be unable to meet any security for costs order, having failed to do so in the past. 

5. There is no issue raised as to whether the parties are in receipt of legal aid. 

6. No particular matter is advanced in support of the application for security for costs directed to the conduct of the parties, other than my attention being drawn to the fact that the application for contravention contains in excess of 400 counts. 

7. There is a question as to whether or not the proceedings are necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.  The nature of the application, being for contravention of child-related orders and being in the context where the mother says she has no contact with her child despite there being Court orders in place, may have been necessitated by the failure of the father to comply, although that is unable to be determined until the contravention proceedings themselves are determined. 

8. On the question of whether a party has been wholly unsuccessful it may be noted that the mother has been wholly unsuccessful today, but that does not seem to be a matter that bears heavily in relation to that consideration in determining whether or not an order for security for costs in these proceedings should be made.  I will return to the question of the lack of success as it that might bear upon other considerations. 

9. No evidence was led as to an offer to settle.

10. Turning then to the additional matters raised by Justice Ainslie-Wallace. Firstly, the question of the prospects of the success of the litigation are difficult to predict.  As noted before, the mother has been wholly unsuccessful in relation to the three counts that she selected to proceed upon in these contravention proceedings today.  This could be suggestive of a likelihood of a lack of success in the future, however, it is no more than suggestive of that notion.  I am unable at present to form a view as to the prospects of the mother in relation to the counts that she seeks to continue. 

11. The second question is whether or not the claim for security is made bone fide by the father.  Given the results in the proceedings to date, it would seem to me that it is a bone fide application.  That is, he has faced something in the vicinity of 400 counts and of the three that were selected from those 400 he has been wholly successful. 

12. There are further matters that go to whether or not he is bone fide and that go to matters that also deal with the difficulty in enforcing an order for costs. 

13. The next matter is whether or not an order is likely to stifle litigation.  Given that the mother did not meet the security order made by Justice Ainslie-Wallace it can be accepted that there is a likelihood that such an order would stifle the contravention litigation. 

14. The next matter to look at is delay in bringing the application.  It may be seen that the father has brought the application immediately upon the mother being unsuccessful in relation to the first three counts and it seems that there is no relevant delay. 

15. The next matter is whether there will be difficulty in enforcing an order for costs.  There are at present four outstanding orders for costs that have not been paid by the mother dating from April 2016 through to 31 October 2017.  It may be inferred that the father will struggle to enforce any costs order, this matter also goes to the bona fides of the application. 

16. In this case there are a number of matters that point toward the conclusion that a security order should be made.  There are, however, other matters that point away from that conclusion, and it is those matters that hold sway in determining the matter today.  Whether they will continue to hold sway may depend upon the future success of the litigation on the part of the mother.  However, the two matters that hold sway are the fact that an order for security for costs is likely to stifle the proceedings, and the inability on my part to assess the prospects of the future litigation as poor.  It is those matters, in combination, that are sufficient to cause the refusal of the application for security for costs today, particularly in the context where the subject matter of the litigation, that is whether the mother is able to see her daughter at all following the making of final orders, is of such importance. 

17. The stifling of litigation is a serious step to be taken and is more readily to be undertaken where it may be assessed that a person's litigation has poor prospects for success.  I am unable to come to that conclusion at present, and the burden of making that proposition good lies upon the father.  At present he has not been able to do so.  It may be that the future conduct of the proceedings is such as to turn this particular matter in favour of a future application on the part of the father, but it is premature to judge that matter.

Filing of further affidavit material

1. On the making of procedural directions to deal with further counts from the mother's application for contravention filed 15 November 2017 the mother seeks permission from the Court to file further affidavit material in respect of unknown contraventions within that application. To date, despite the Family Law Rules 2004 providing at r 21.02(2) that a person filing such an application must file with it an affidavit that:

   (a) states the facts necessary to enable the court to make the orders sought in the application. 

   the mother has been permitted to rely upon two affidavits.  That already constitutes a significant indulgence under circumstances where contraventions carry with them the risk of sanction against the respondent.  The application by Ms Rilak to now file yet further evidence under circumstances where the matter was set today to enable her to deal with three contraventions, and as noted by Justice Loughnan in the expectation that the balance of the proceedings would then be discontinued or dismissed, and under the circumstances where Ms Rilak now seeks to prosecute further contraventions, and further, under the circumstances where the father has already been put to the trouble in answering the contravention applications, of engaging the services of a legal representative who has had to prepare the case based on both current affidavits, and under the further circumstance of not knowing what contraventions he would have to meet today.

2. It places a further burden upon him for such an indulgence to be given to the applicant, noting the structure of the Rules obliges an applicant for contravention to support, at the time of alleging the contravention, the contravention fully. 

3. I do not accede to the applicant's application seeking to dispense with that aspect of the Rules and therefore be allowed to file a further affidavit.

Costs

1. Application is made by the father for the costs of today. It is acknowledged that the default position in relation to costs is that set out by s 117 of the Act that each party to the proceedings should bear his or her own costs. That is a default position which can be departed from under justifying circumstances such as those set out at s 117(2A) of the Act.

2. Of those matters, the father relies in particular on the conduct of the parties to the proceedings.  In this case the mother was the subject of directions given by Justice Loughnan that required her to nominate three counts to be dealt with today.  That requirement was such that she was obliged to tell the father well in advance what matters would be prosecuted today.  She did not comply with that order.  Rather than identifying three contraventions she identified a great number of contraventions.  That, of course, caused the father to prepare for today's proceedings at large, rather than in the focused manner envisaged by Justice Loughnan’s orders. 

3. The mother says the proceedings were necessitated by the failure of a party to comply with previous orders of the Court.  However, dealing with the particular contraventions it may be observed that the mother was unsuccessful in establishing any of those contraventions and I am unable to come to that factual conclusion as being a relevant consideration in these proceedings. 

4. The father also points to the fact that the mother has been wholly unsuccessful in the proceedings.  She has failed in each of the three counts.  He was not called upon to give evidence as one count was dismissed at the outset on the basis that it had already been disposed of by Justice Rees.  In relation to that count I have found that the mother has litigated in a vexatious manner.  A second count was dismissed immediately on the basis that it referred to a notation rather than an obligation imposed by order, and the third matter was dismissed as failing to make a prima facie case. 

5. The father also points to an offer to settle set out at annexure d of the mother's affidavit, in the sense that he gave her an opportunity to withdraw without incurring costs.  She did not do so.  That offer is somewhat problematic to take into account because it refers to the global withdrawal from the proceedings and at present there are still some 400 odd counts of contravention outstanding.  I am unable to conclude that that offer, to the extent that it might be considered to be an offer, points in favour of an order for costs.

6. The father also touches upon the financial circumstances of the parties to identify that there is not material in front of me that enables me to conclude as to their financial circumstances, although I would note that there is some inference to be drawn from the proceedings conducted before Justice Ainslie-Wallace which required a payment for security for costs which was not met by the mother. This may be indicative of her being in an impecunious position. 

1. As a whole the matters that I have identified justify that an order be made for costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 May 2018.

Associate: 

Date:  1 June 2018