Sklovsky and Gastin

FAMILY COURT OF AUSTRALIA

SKLOVSKY & GASTIN

[2008] FamCA 398

FAMILY LAW – COSTS - Circumstances justifying order

Family Law Act 1975 (Cth)

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123

APPLICANT:

Ms Gastin

RESPONDENT:

Mr Sklovsky

FILE NUMBER:

SYF

4231

2005

DATE DELIVERED:

6 June 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

18 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Black of Counsel

SOLICITOR FOR THE APPLICANT:

Colleen V Donnelly Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Genovese

SOLICITOR FOR THE RESPONDENT:

Matthew Hammond Solicitors

Orders

The Respondent Mr Sklovsky pay the costs of the Applicant Ms Gastin of and incidental to the proceedings commenced by application filed on 9 June 2006 on behalf of the Respondent and concluded by orders made on 6 June 2007.
It be NOTED that the costs also include legal costs incurred by the Applicant subsequent to 4 April 2007 and prior to 9 June 2006.
The Respondent pay the costs of the Applicant of and incidental to the application for costs determined by these Orders.
The quantum of the costs referred to in orders 1 and 3 hereof be in an amount as agreed between the Applicant and the Respondent by 4:00 pm on 20 June 2008 and failing such agreement as taxed by a Registrar of the Court on a lawyer and client basis.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4231 of 2005

MS GASTIN

Applicant

And

MR SKLOVSKY

Respondent

REASONS FOR JUDGMENT

Before me for hearing is an application by Ms Gastin, who I shall refer to as the Applicant, for costs of parenting proceedings which I determined on 6 June 2006. The Respondent is the father and he opposes the application.
On 6 June 2007 I made an order that all applications by the father for parenting orders in relation to the child born in April 2005 be dismissed. The matter was before me for hearing on 18 April 2007 and I published my reasons on 6 June 2007.
The Applicant is seeking an amount of $9,166.29 which comprises:
·Costs to GPN Law from 16 May 2006 to 18 September 2006     $2,794.00
·GST and disbursements  $   561.79
·Counsels fees  $1,240.00
·Independent Child Lawyer  $1,650.00
·Costs to C V Donnelly from 1 October 2006 to 6 June 2007       $2,160.00
·Disbursements  $   100.50
·Counsel’s fees  $   660.00

BACKGROUND

The relevant background is set out in my judgment delivered on 6 June 2006 and I will repeat some of what I said.
Before me for hearing was an application for summary dismissal of an application to vary final consent parenting orders. I was asked to consider as a threshold issue whether since final parenting orders were made there had been a change in circumstances such that there should be a reassessment of the current parenting arrangements. The Applicant sought that applications by the Respondent for parenting orders be struck out.
Final parenting orders were made on 4 April 2006 in relation to the child. In my judgment I said that on one view, the parenting proceedings were commenced on 20 June 2006 when an application was filed by the Respondent. The Applicant contended that the applications by the Respondent be dismissed because the Respondent had not established that since 4 April 2006 a change in circumstances had occurred such that a Court would hear the Respondent’s applications.
In April 2005 the Respondent filed in the Local Court, St James Centre an application for final orders. In the application he sought that the Applicant undertake a DNA test to determine the parentage of the child.
On 20 May 2005 an amended application for final orders was filed on behalf of the Respondent. In this amended application the Respondent sought that the parties have “joint residence” of the child and that he be granted “reasonable contact”.
A DNA test was carried out in July 2005 in which samples were taken from the Respondent, the Applicant and the child. The test showed that the Respondent is the putative father. The Applicant contended that she was shocked by the results because she had never had a sexual relationship with the Respondent and she did not understand how this could have happened. She believes that the Respondent is not the father of the child.
On 10 November 2005 a response to an application for final orders was filed on behalf of the Applicant and she sought that the Respondent’s amended application for final orders be struck out or in the alternative that he be denied contact and/or joint residence with the child.
On 21 March 2006 a Family Report was completed and a copy provided to the parties. The Mediator recommended that the Applicant have sole residence. It was recommended that the Applicant undertake a drug relapse prevention program at RPA Drug Health Service as soon as practicable. Contact by the child with the Respondent was not recommended. It was suggested that any future contact was dependent on the child’s wishes when he is older and capable of deciding for himself.
On 4 April 2006 Judicial Registrar Johnston, by consent, made the following orders:
1.That the child […] (date of birth […]/4/2005) reside with the respondent Applicant.
2.That the said child have no contact to the applicant Respondent.
3.That the Applicant pay, within 28 days one half the costs of the child representative.
4.That the matter be removed from the Active Pending Cases list.
The Judicial Registrar also made an order pursuant to s 65DA(2). As well, he noted that the orders were made in accordance with a handwritten minute of orders filed in court and signed by the parties and the Child Representative.
At the time the consent orders were made the Applicant was represented by counsel. An Independent Children’s Lawyer appeared. As well, the Respondent appeared although he did not have legal representation. The transcript of the proceedings on 4 April 2006 reveals that counsel for the Applicant informed the Judicial Registrar that there was a Family Report.
Colleen Donnelly, who is the Applicant’s solicitor, gave evidence that on 4 April 2006 the Applicant agreed to provide a photograph of the child to the Respondent. On 7 and 11 April 2006 the Respondent telephoned Ms Donnelly and requested the photograph of the child. On 20 April 2006 Ms Donnelly received a letter from the Respondent in which he noted the undertaking on 4 April 2006 with respect to a photograph of the child and said that if he did not receive the photograph “I will proceed to the Family Court of Australia Sydney for residence or contact”. On 20 April 2006 Ms Donnelly wrote to the Respondent and advised that she had attempted to contact the Applicant with regard to the photograph but had been unable to do so.
On 24 April 2006 Ms Donnelly received a telephone call from the Respondent during which the Respondent said that he would wait until the end of the school holidays and further that the Family Court had informed him that the “matter is still in the list”. Ms Donnelly told the Respondent that this could not be so because “the matter is settled”. On 2 May 2006 Ms Donnelly received a photograph of the child from the Applicant and on the same day Ms Donnelly sent the photograph to the Respondent. On 4 May 2006 Ms Donnelly had a telephone conversation with the Respondent during which he thanked her for the photograph and also said “I’ll tell the court the matter is finished”. Ms Donnelly again told the Respondent that the matter should not be in the list.
On 4 May 2006 the Applicant telephoned the Family Court Registry and was advised that the matter was still in the list. She was advised to send a facsimile transmission to what is called the case coordinator. On 4 May 2006 Ms Donnelly sent a facsimile transmission to the case coordinator and advised that orders were made on 4 April 2006 including an order that the matter be removed from the active pending cases list.
On 5 May 2006 Ms Donnelly telephoned the Respondent and told him that she had sent a facsimile transmission to the case coordinator and the Respondent said “Thank [the applicant] again for me”.
On 9 May 2006 Ms Donnelly received a facsimile transmission from the case coordinator referring to the facsimile transmission of 4 May 2006. The Case Coordinator contended that on 4 April 2006 when an interim application was before a Judicial Registrar consent orders were made but “according to the physical and electronic court file” these were only interim orders and hence, an appointment for a Pre Trial Conference “still stands”. The Case Coordinator said that if the parties were happy for the orders to be final then she suggested that “terms of settlement” be sent to the Court for engrossment. In my judgment I said that what the Case Coordinator said was wrong and should have been checked by the Court.
On 16 May 2006 Ms Donnelly telephoned the Independent Children’s Lawyer who said she thought the matter was settled and that she would sign terms of settlement. On 16 May 2006 Ms Donnelly telephoned the Respondent and advised him that she had drafted terms of settlement for him to sign and that she would then file them in the Court. She asked the Respondent to come to her office to sign the terms and the Respondent said “I’ve changed my mind, I want to go ahead with the matter”. In summary, on 16 May 2006 the Respondent told the Applicant’s solicitor that he would not sign terms of settlement in relation to final orders and wished to continue to contest the matter.
On 9 June 2006 an application in a case was filed on behalf of the Respondent and he sought that the Applicant take regular urine samples in regard to her drug use and that an Apprehended Violence Order be made against Mr D and further that this person “not to be anywhere near my son while using any drugs”.
On 16 June 2006 Ms Donnelly sent a facsimile transmission to the Case Coordinator in which she referred to the facsimile transmission of 9 May 2006 and advised that the Respondent had said he had changed his mind and did not wish to sign the terms of settlement. Ms Donnelly requested that the matter be relisted as a matter of urgency before the Judicial Registrar.
On 16 June 2006 a Registrar conducting what was then called, for case management purposes, a defaulters’ list noted that final parenting orders were made by consent on 4 April 2006 and directed that an application filed on 19 October 2005 be marked as finalised. The Registrar also noted there was no pending final application before the Court.
On 20 June 2006 an application for final orders was filed on behalf of the Respondent. In my judgment I said that an examination of this application revealed that the Respondent did not set out what orders he was seeking.
On 27 June 2006 a Judicial Registrar reserved the Applicant’s costs and adjourned the matter to 18 July 2006 before a Registrar.
On 18 July 2006 an order was made for the appointment an Independent Children’s Lawyer. The proceedings were adjourned to 21 August 2006 before a Judicial Registrar.
On 8 August 2006 an amended application for final orders was filed on behalf of the Respondent. In this application the Respondent sought that he spend time with the child. On 8 August 2006 an amended application in a case was filed on behalf of the Respondent and he sought on an interim basis orders in the same terms as the orders he sought in the amended application for final orders, filed on the same day.
On 21 August 2006 by consent the interim parenting issues were adjourned to a Judicial Registrar’s duty list on 18 September 2006. The Judicial Registrar also made an order that any further documents be filed by no later than 12 September 2006.
On 30 August 2006 a response to an application for final orders was filed on behalf of the Applicant and she sought that the Respondent’s amended application for final orders be struck out or in the alternative the Respondent be denied contact and/or joint residence with the child. On 30 August 2006 a response to an application in a case was filed on behalf of the Applicant.
On 13 September 2006 an amended response to an application for final orders was filed on behalf of the Applicant. The Applicant sought that the Respondent’s amended application for final orders be struck out or in the alternative an order be made that the Respondent not spend time with the child. On 13 September 2006 an amended response to an application in a case was filed on behalf of the Applicant.
On 18 September 2006 a Judicial Registrar made an order that the parties have leave to request the issue of a trial notice and the appointment of a Pre Trial Conference. The Judicial Registrar also made an order that the application in a case filed by the Respondent on 8 August 2006 be dismissed.
On 20 December 2006 an application in a case was filed on behalf of the Applicant and she sought:
1.That the amended application for final orders of [the respondent] be struck out on the basis that final orders were made by consent on 4 April 2006, and the matter has already been adjudicated.
2.That [the respondent], the respondent in this application in a case, and the applicant in the application for final orders, pay the costs of the [applicant] with respect to this application and to the application for final orders.
On 9 March 2007 Steele J made some orders including an order that the Respondent file an affidavit setting out details of the change in circumstances said to justify his amended application for final orders filed on 8 August 2006.
The Respondent swore an affidavit on 22 March 2007. In this affidavit he contended that on 4 April 2006 he did not have the benefit of legal advice or representation. However, he admitted that since proceedings were commenced in February 2005 he was intermittently legally represented including by counsel. The Respondent also contended that at the time of providing his consent it was his understanding that the orders “were only temporarily binding” and that he could apply at any time to have the orders varied. He contended that had he been aware that the orders of 4 April 2006 were final then he would not have consented to the making of the orders. The Respondent went on to give evidence of what he described as a change in circumstances.
The hearing before me proceeded in a summary way and I was asked to consider as a threshold question whether the Respondent had established at the time of the hearing a material change in circumstances. In my judgment I said that in summary, the Respondent relied upon:
1.Receiving no legal advice or representation and an allegation of being misinformed of the legal effect of consent orders;
2.Loss of incidental contact with the child ‘in the local area’ when the Applicant and the child moved residence;
3.Concerns about the ‘wellbeing’ of the child arising out of sighting the Applicant with an ex-partner who is a known heroin user and has a history of drug use with the Applicant;
4.Improvements in mental health of the Respondent since he has worked through grief from loss of his father; and
5.Improvements in the Respondent’s employment and financial situation.
In my judgment I said that I was of the view that, in the circumstances of the case the matters raised by the Respondent about the lack of legal advice or legal representation on the day the orders were made and the conversation that took place between himself and the Child Representative were irrelevant and that it was very clear that the Respondent was aware of the consequences of the orders.
As to the complaint about the loss of incidental contact with the child “in the local area” after relocation I did not accept the contentions of the Respondent. I found that prior to 4 April 2006 the Respondent was aware that there was an issue about his stalking the Applicant and that at the time there was a current Apprehended Violence Order. I said that it was clearly inappropriate for the Respondent to have any contact even the possibility of sightings. In any event, the quality and nature of this incidental contact was in dispute. I said that if the Applicant’s version of events was accepted then this loss of sighting contact in the local area might be seen as prevention of continued harassment, intimidation, stalking and breaches of the Apprehended Violence Order. Further, the extent of any contact would have been minimal at best. I concluded that the opportunity for such contact being removed did not constitute a material change in circumstances sufficient to justify a reopening of the parenting orders and that this was my conclusion even if the Respondent’s version of events was accepted.
As to the concerns about the “wellbeing” of the child arising out of sighting the Applicant with an ex-partner I rejected the Respondent’s contentions. I said that the Respondent had these concerns before the orders of 4 April 2006, they were considered by the Mediator and were before the Judicial Registrar at the time the consent orders were made.
As to the matter of improvements in the mental health of Respondent since he worked through grief from loss of his father I did not accept these matters as constituting a material change in circumstances.
As to improvements in the Respondent’s employment and financial situation I found that in these circumstances, any change in the Respondent’s financial situation was not a material change that would satisfy the rule.
I concluded:
170It is clear from the Respondent’s own admission that he appreciated the consequence of entering into the consent orders, including that he would not see the child. Yet within a short period of time after the orders were made the Respondent sought reconsideration of the issue of the best interests of the child.
171In my opinion it is most appropriate to deal with the issue of whether there has been a change in circumstances, as a threshold question given the circumstances of this case. I have firmly come to the conclusion that none of the matters raised by the Respondent satisfy the rule, or for that matter that there is any other basis for setting aside or varying the orders. There is no matter raised that satisfies me that the best interests of this child should at this time be reconsidered. I have come to the conclusion that the Respondent’s application(s) should be summarily dismissed.

RELEVANT PRINCIPLES

Section 117(1) Family Law Act 1975 (Cth) provides that subject to s 117(2) and s 117AA and s 118, each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) provides that if, in proceedings under the Act, I am of opinion that there are circumstances that justify me in doing so, I may, subject to sub secs (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs whether by way of interlocutory order or otherwise, as I consider just.
Section 117(2A) provides that in considering what order (if any) should be made under s 117(2), I shall have regard to the matters set out in paras (a) to (g).
Section 117AA deals with costs in proceedings relating to overseas enforcement and international Conventions and s 118 deals with frivolous or vexatious proceedings.
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123 the Full Court said at p 130:
[41]. …The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subsection 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

CONCLUSION

I am required to consider the financial circumstances of each of the parties to the proceedings.
The Applicant is a registered nurse however she has not been in paid employment since the birth of the child. She is currently receiving Centrelink benefits of $500 per week. The Applicant owns a home at Mwhich is on the market for sale and she has received advice that it may sell for a price of $680,000. The Applicant said, and I accept, that she had a mortgage loan for $300,000 secured on the title but because she was unable to meet the repayments of $2,000 per month her father paid off the mortgage. The Applicant intends however to repay her father the money which he lent to her when the home is sold. As well, the Applicant’s father has paid half of her legal fees and the school fees for the Applicant’s eldest son of approximately $8,000 per annum.
The Applicant said that she no longer resides in Sydney.
In my judgment I said:
120.The Father contended that when the orders were made in April 2006 he was unemployed and in a poor financial situation and this was a further reason why he thought it would be appropriate for him to temporarily agree for the Mother to have “uncompromised contact”. The Father contended that he was now working as a contractor performing interior decorating and painting duties for […] Pty Ltd and he has a weekly income of approximately $1,300.
The Respondent gave no evidence about his current financial circumstances. However, in submissions the Respondent’s solicitor said that until September 2007 the Respondent was unemployed and that he is now employed as a sub contractor. The solicitor said that the Respondent was injured at work. Further, the solicitor that the Respondent had lost his “right to practice”.
I am required to consider 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. Neither party was in receipt of a grant of legal aid.
I am required to consider 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. In my opinion this is an important matter.
I take into account the conduct of the Respondent in relation to the proceedings. Within a very short period of time after final consent orders were made the Respondent commenced further proceedings. The Applicant then sought a summary dismissal of the Respondent’s application and her application was successful. When one considers what I said in my previous judgment in relation to what happened after the consent orders were made I am satisfied that the conduct of the Respondent to the proceedings resulted in the Applicant incurring unnecessary costs and expense.
I am required to consider whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court. This matter is not relevant.
I am required to consider whether any party to the proceedings has been wholly unsuccessful in the proceedings. This matter is relevant.
The Respondent was wholly unsuccessful in that I summarily dismissed his application. The Applicant was wholly successful in that she established to my satisfaction that it was appropriate to summarily dismiss the application of the Respondent.
I am required to consider 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. This matter is not relevant.
I am required to consider such other matters as I consider relevant.
I have come to the conclusion that in all the circumstances of this case the Applicant has established justifying circumstances. I am satisfied when one considers what occurred subsequent to the making of the final consent orders that the actions and behaviour of the Respondent put the Applicant to unnecessary cost and expense which fortunately was limited in that the Applicant made an application for summary dismissal and I was satisfied that it was appropriate to make the orders sought. I have come to the conclusion that in all the circumstances of the case the Applicant has established justifying circumstances and that the Respondent should pay the costs of the Applicant.
Although it is not directly relevant to what I have to currently consider it is of concern that it appears that even since the orders I made the Respondent is still agitating to spend time with the child.
As to the quantum of costs I have considered very carefully the amount which is sought by the Applicant and in my opinion the amounts claimed appear to be reasonable. I note that costs were reserved in favour of the Applicant on 27 June 2006, 18 July 2006 and 9 March 2007. As well, an order was made on 18 September 2006 reserving costs. There have been appearances before the Court on seven occasions between 16 June 2006 and 9 March 2007 excluding the hearing before me.
If I were to make an order that the costs be in an amount as agreed within a specified time and failing such agreement as taxed then I am concerned that an agreement may not be reached and the parties would then be put to the further costs and expense of a taxation. There has already been a considerable amount of litigation. I also note that although it is not directly relevant to what I have to currently consider the Respondent has continued to agitate to spend time with the child and the Applicant has now filed an application seeking relief against the Respondent pursuant to s 118 of the Family Law Act 1975 (Cth). However, notwithstanding these concerns I propose to make an order that the costs be in an amount as agreed within 14 days of the date of this judgment and failing such agreement as taxed by a taxing officer. I am of the view that the application by the Respondent was without any merit and his behaviour unreasonable and that the costs should be assessed on a lawyer and client basis.
In relation to the costs of this costs application I am satisfied that again the Applicant has established a justifying circumstance. The Applicant has been wholly successful. Again I propose to make an order that the costs be in an amount as agreed within 14 days of the date of this judgment and failing such agreement as taxed by a taxing officer.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate:

Date: 6 June 2008

[2008] FamCA 398

6 June 2008

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Costs

Appeal