State Central Authority and Kodenikos (No 2)

[2010] FamCA 1056

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & KODENIKOS (NO. 2) [2010] FamCA 1056

FAMILY LAW – COSTS – Hague Convention – Failure to abide by consent orders

APPLICANT: Director General, Department of Human Services as State Central Authority

RESPONDENT: Mr Kodenikos

FILE NUMBER: SYC 7726 of 2009

DATE DELIVERED: 17 November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 17 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Selwood,
Department of Human Services

SOLICITOR FOR THE RESPONDENT:

Ms Harland,

York Family Law

Orders

1. That the respondent pay the Director General, Department of Human Services’ costs incurred as a result of his failure to hand he child over to the mother in accordance with the orders made by consent on Monday 15 November 2010 as agreed or taxed on an indemnity basis within twenty-eight (28) days from today.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7726 of 2009

DIRECTOR GENERAL, DEPARTMENT OF HUMAN SERVICES

Applicant

And

MR KODENIKOS

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, the parties have come before me through their respective solicitors because, contrary to consent orders which were made at approximately 10 o’clock yesterday which provided for the child the subject of orders that I had made to be returned to Greece, he was not handed over at 5 o’clock yesterday by the respondent father to the mother for the purpose of allowing the mother to take him to Greece today, as she had arranged and pursuant to the orders that I had made.

2. The mother informed the solicitor for the Director General of this. The solicitor for the Director General contacted Ms Harland, who is the respondent’s solicitor.  Ms Harland has since then made a number of attempts to contact the respondent, but they have been unsuccessful.  She should not have needed to make any attempts to do so.  The respondent, as he was going to disobey orders which were made by consent within only a few hours of having agreed to those orders and having had them made, should have contacted Ms Harland if he had any valid reason whatsoever for that disobedience.

3. The inference is that the father has deliberately evaded contact with Ms Harland because he has deliberately flouted the orders that were made.  Ms Harland also had difficulty in contacting members of his family in her attempts to contact him, probably for the same reason. 

4. As a result of that, Ms Harland and the solicitor for the Director General appeared before me today because the solicitor for the Director General was concerned, and rightly so, that if the respondent had flouted orders made as recently as yesterday, for the handover of the child at 5 o’clock, as the child was due to fly out of Australia today with his mother, there was a real risk that the respondent might decide to continue flouting those orders and not return the child to the mother in time for her to get the flight upon which they are booked.  That is a perfectly reasonable presumption to make. 

5. Accordingly, Ms Selwood came here to seek orders for a warrant, in support of the warrant that I have already made, for the handover of the child to Federal and State Police.  This is despite the fact that the respondent seems to have claimed by a text message to the mother to have already told the mother that he would hand the child over at the airport.

6. Of course, as I have said, as he so soon after the orders were made decided not to comply with the orders for handover last night, there is more than reasonable apprehension that he would not have handed over the child at the airport in time for the child to leave with his mother on the plane to Greece. It is therefore perfectly appropriate and reasonable for the Director General to have come here, seeking orders in support of the orders that I have made that the child be returned to Greece with his mother. 

7. By the time I was able to deal with the matter, but only a short time before, both solicitors were informed that the child had been handed over to the mother.  That, in my view, does not provide much reason why I should not order the father to pay costs. 

8. The Act provides that ordinarily, costs are met by the parties, and only in exceptional circumstances should an order for costs be made against one of the parties.  Of course, the Act is aimed at maintaining relations, or at avoiding further damage to relationships between spouses or the like, for the public good and, in particular where children are involved, to avoid further harm to the children by conflict between their parents or by exacerbation of conflict between their parents.

9. In this case, however, it is the Department that seeks costs.  So it is not an issue as between parents.  The Act requires that I consider certain matters.  One is whether or not the parties have legal aid.  In this particular instance, the Director General is the director of a government department and is in a particular position where it could not be said that there is any inability to afford to forego costs that have been incurred as a result of the unnecessary application that they were forced to make today. However, the community will pay such costs if the respondent does not pay her costs. In my view, there is no reason in the circumstances why the community rather than the husband should be liable for those costs or should meet those costs.  So I think that there are exceptional circumstances here which allow me to consider all the matters in section 117(2A).

10. Another matter that has to be considered is the financial circumstances of the parties. Whether or not the respondent has legal aid is another.  So far as I know, the respondent has never had legal aid and does not have it. His circumstances are moderate.  In fact, it seems to me that the inference has always been during the conduct of the principal proceedings that his costs were being met by his parents rather than by himself. 

11. Nevertheless, it is my view that his parents have been deeply involved in his actions at all times, in relation to these proceedings, and ought to have had some influence upon his conduct in relation to breach of the orders.  It ought to be a lesson to him, if he is unable to pay the costs, that his parents might feel they have to.  That might improve the inclination of the respondent to comply with orders of this Court and improve the inclination of his parents to ensure he does in future, if such orders are made against him. I think it is in the public interest, in those circumstances, that an order be made against him for costs. 

12. Of course, the major consideration is whether or not there has been breach of an order or the like by either of the parties. Of course, these proceedings have been brought before me solely because the husband breached the order in a way which I regard as quite flagrant.

13. In the principal proceedings, I formed the view that he is the type of person who is prepared to do whatever he wishes, irrespective of the proprieties, and sees truth as being whatever he wants it to be. I think his breach of these orders, so soon after they were made by consent, for handover the child at 5 o’clock yesterday, together with his putting himself out of contact with his own solicitor or the probability that he has put himself out of contact with his own solicitor, are exceptionally strong reasons to make a costs order against him.

14. There are no other matters of relevance in that the Act requires me to consider.  There are other paragraphs of the Act that require consideration.  I have considered those, but they are not relevant to the facts that I know of here.

15. In all of the circumstances, I think this is a matter where a costs order ought to be made against the respondent, and I think that his behaviour is so serious and so flagrant and so exceptional it ought to be an indemnity costs order, and I shall so order.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 17 November 2010.

Associate:     

Date:              25 November 2010