Stylianos & Blagoslav (No 2)
[2024] FedCFamC1F 382
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stylianos & Blagoslav (No 2) [2024] FedCFamC1F 382
File number(s): SYC 3272 of 2019 Judgment of: BERMAN J Date of judgment: 5 June 2024 Catchwords: FAMILY LAW – COSTS – Application for leave – Where the application for costs was not filed within 28 days – Where an extension of time sought is for 2 days nunc pro tunc – Application for leave opposed – Consideration of delay and prejudice caused – Application for leave granted.
FAMILY LAW – COSTS – Application for costs sought following a final parenting hearing – Circumstances justifying an order – Consideration of costs on an indemnity basis – No costs agreement provided – Where the Court finds that no circumstances exist to enable the making of an indemnity order – Consideration of costs on a party/party basis – Where the respondents sought orders that the children have no relationship with the applicants – Where the Court made time spending orders between the children and the applications – Consideration of various offers – Where the Court finds the respondents were wholly unsuccessful– Consideration of s 117(2A) of the Family Law Act 1975 (Cth) – Court unable to determine quantum of costs order – Order for costs as agreed or pursuant to a taxation of costs.
Legislation: Family Law Act 1975 (Cth) s 117.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 12.13, 15.06
Cases cited: Hawkins & Roe [2012] FamCAFC 77
Kohan & Kohan (1993) FLC 92-340
Prantage & Prantage (2013) FLC 93-544
Re Wilcox; Ex parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151
Stylianos & Blagoslav [2023] FedCFamC1F 1071
Wrensted & Eades (2016) FLC 93-697
Division: Division 1 First Instance Number of paragraphs: 97 Date of hearing: 29 May 2024 Place: Adelaide via MS Teams Counsel for the Applicants: Mr Hodgson Solicitor for the Applicants: O’Sullivan Legal Counsel for the Respondents: Ms Tabbernor Solicitor for the Respondents: Santo Family Lawyers ORDERS
SYC 3272 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STYLIANOS AND MS STYLIANOS
Applicants
AND: MS BLAGOSLAV AND MR BLAGOSLAV
Respondents
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.The respondents pay one half of the applicants’ legal costs incurred from 1 March 2023 to 14 December 2023 in the preparation for, and the conduct of, the final hearing that commenced on 20 November 2023 on a party/party basis as may be agreed or assessed pursuant to a taxation of costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION
Mr Stylianos and Ms Stylianos (“the applicants”) are the maternal grandparents of X born 2013 and Y born 2015 (collectively “the children”).
Mr Blagoslav and Ms Blagoslav (“the respondents”) are the biological parents of the children.
The focus of the litigation has been the extent to which, if any, the children should spend time with the applicants.
It is an oversimplification of the internecine conflict between the parties and the ensuing litigation to simply highlight the respondents’ opposition to the final orders sought by the applicants that the children spend supervised time with them for a period of four months on the last Sunday of each calendar month from 1.00 pm to 2.00 pm and that thereafter, they spend unsupervised time with the children on the last Sunday of each calendar month from 1.00 pm to 5.00 pm. Orders were also sought that the applicants communicate with the children on the second Sunday of each calendar month by Skype/FaceTime or by telephone and that they be able to forward cards and gifts to the children to celebrate their birthdays and other special religious days in the religious calendar.
The position of the respondents was to seek that the application for spend time with and communication orders be dismissed. There is a long and unfortunate history that belies the proposal of the applicants to resume a relationship with the children and the entrenched position of the respondents that there should not be a relationship between the children and applicants.
Judgment was delivered in Stylianos & Blagoslav [2023] FedCFamC1F 1071 (“Stylianos & Blagoslav”) on 14 December 2023 and orders were made summarised as follows:
(1)That the applicants be permitted to send the children cards and/or gifts on the following occasions:
(a)The children’s birthdays;
(b)religious holidays.
(2)That the applicants shall cause cards and gifts to be delivered to the address nominated by the respondents.
(3)That the respondents shall do all things necessary to provide cards and gifts forwarded by the applicants to be given to the children in a manner that encourages the children to receive same with positive reinforcement and support.
(4)That the respondents ensure that the children acknowledge receipt of gifts and cards to the applicants.
(5)That the applicants are restrained from including in cards words that may denigrate or criticise the respondents, make reference to the respondents, refer to any adult issue, make arrangements to spend time with the children or invite the children to spend time with them or refer to court proceedings.
(6)That as and from one year from the date of the order, for a period of six months, the children spend supervised time with the applicants on the last Sunday of each calendar month from 1.00 pm to 2.00 pm.
(7)At the conclusion of the six-month period, the children spend time and communicate with the applicants on the last Sunday of each calendar month from 1.00 pm to 5.00 pm.
(8)After the commencement of the children spending supervised time with the applicants, the children shall be at liberty to communicate with the applicants via Skype/Facetime from 6.30 pm to 7.00 pm on the second Sunday of each calendar month to be instituted by the applicants and facilitated by the respondents.
(9)Within seven days of the date of these orders, the respondents shall provide to the applicants an address at which they may be at liberty to send cards and gifts to the children in order to give effect to these orders.
On 11 January 2024, the respondents filed a Notice of Appeal (NAA10/2024).
If the appeal was allowed, then the respondents sought that the orders of 14 December 2023 be set aside and that the Initiating Application filed 24 May 2019 be dismissed. In the alternative, the respondents sought that the matter be remitted for rehearing.
As matter transpired, the respondents filed a Notice of Discontinuance on 10 April 2024 in respect of the appeal. No application was filed by the applicants seeking costs in relation to the discontinued appeal.
By Application in a Proceeding filed 12 January 2024, the applicants seek the following order:
1.That the respondents pay the applicants’ costs of and incidental to the substantive proceedings on an indemnity basis and in the alternative, on a party/party basis as agreed or assessed.
The Application in a Proceeding seeking costs is opposed by the respondents who contend that there is no basis for a costs order to be made and that each party should bear their own costs of the proceedings.
If the applicants’ application for costs is successful, they do not further seek an order for the costs incurred in relation to the disposal of the current application. The position of the respondents is that if the application for costs is unsuccessful, then they seek their costs, inclusive of counsel fees incurred in meeting the application, in the sum of $7,150.
APPLICATION FOR LEAVE
Rule 12.13(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provide that an application for costs may be made by filing an Application in a Proceeding within 28 days after the final order is made.
Rule 15.06(1) provides:
The court may at any time, on the application of a party or the court’s own initiative, shorten or extend a time that is fixed under these Rules or by a procedural order.
It is not controversial that the application for costs, having been filed on 12 January 2024, is out of time by two days.
The application for an extension of time is opposed. It is submitted that the application was filed as a response to the filing of the Notice of Appeal and was intended by the applicants to be considered as retribution for the filing of the appeal.
It is further argued that there is no explanation for the delay in the sense that the applicants and/or their solicitors could not have been taken by surprise by the holiday period and the Christmas closure of the applicants’ solicitors.
Whilst there is no doubt that the costs application could have been filed within the twenty-eight day period, the applicants seek to extend time upon the following basis:
·The question of costs is a substantial issue in the proceedings;
·There could be no hardship or injustice caused given the relatively short period of time for which leave is sought;
·There are adequate reasons that explain the delay;
·An extension of time is necessary in order to do justice between the parties; and
·No hardship or injustice is caused to the respondents.
In Gallo v Dawson [1990] HCA 30, McHugh J held that:
2.… That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
Whilst the extension of time sought is only for two days nunc pro tunc, that in and of itself is not a complete answer. It does however limit any potential argument involving prejudice that it likely to be caused to the respondents. I also find that whilst the holiday shut down period is a matter well-known to the applicants’ solicitors, the reality is that the period for consideration and consultation as to whether an application for costs should be made is necessarily more limited.
I do not consider that the application of costs to be either a frivolous exercise nor is it obvious or apparent that the filing of the application soon after the filing of the Notice of Appeal is suggestive of malice or that it could be considered as vexatious.
I consider that the applicants have an arguable case. In circumstances where the delay is of narrow compass, there is some level of merit in the application and there is no evidence that would support an argument that the respondents are prejudiced by the delay. In order to satisfy the test of the proper administration of justice, I propose to extend time for the filing of the application seeking an order for costs.
APPLICATION FOR COSTS
In considering what orders, if any, should be made in respect of the applicants’ costs, s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) sets out that the Court shall have regard to the following:-
(a) the financial circumstances of each of the parties to the proceedings;
(b)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;
(c)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, admission of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)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; and
(g) such other matters as the court considers relevant.
Accordingly, whilst the primary consideration under s 117 of the Act is that each party should pay their own costs, the applicants argue that there are circumstances which would justify the Court making an order pursuant to s 117(2A) of the Act.
If an order for costs is made in favour of the applicants, it is argued that the quantum of costs should be assessed and paid on an indemnity basis.
The Application in a Proceeding filed 12 January 2024 is supported by an affidavit of Mr Stylianos filed on the same date. In addition, the applicants each filed a Financial Statement on 28 May 2024, a Costs Notice dated 29 May 2024 and on 28 May 2024, two documents comprising an itemised costs statement for costs incurred by the applicants on an indemnity basis (Part A) and a party/party basis (Part B).
Counsel for the respondents objected to the Court having regard to the itemised costs statements on the basis that they had been filed via the portal, after hours and, on the day before the hearing. There was insufficient time for consideration to be given to the contents of the documents. The two documents cumulatively comprise 56 pages of itemised charges. Whilst there is merit in counsel’s objection, the documents have some utility if only to understand the potential quantum of costs sought by the applicants and the period for which costs are sought.
Of particular note is that the itemised costs statements commence on 27 April 2016 and conclude on 2 April 2024. It is a matter of record that the proceedings were commenced with the filing of an Initiating Application on 24 May 2019 and judgment was delivered on 14 December 2023. It is a reasonable observation that the costs incurred by the applicants have a significant component relating to legal services and the resultant fees incurred both prior to the commencement of proceedings and after the delivery of judgment.
When challenged, counsel for the applicants made a ready concession that whilst assessment of the quantum of costs may be difficult, the relevant period should commence not before the filing of the Initiating Application.
The primary position of the applicants is that if the court makes an award of costs, then it should be assessed on an indemnity basis.
A preliminary issue was raised by counsel for the respondents that as presently constituted, the application that costs be assessed on an indemnity basis has not been made in accordance with the Rules. Rule 12.13 provides:
…
(3) An application for costs may be made:
(a) at any stage during a proceeding; or
(b)by filing an Application in a Proceeding within 28 days after the final order is made.
(4) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement or costs agreements in relation to those costs and, if so, the terms of the costs agreement or costs agreements.
The Rule appears mandatory, and it is conceded that whilst the Court could reasonably expect that the applicants entered into a costs agreement with their solicitors, the agreements were not provided either by way of informal discovery or as part of the application for costs.
There is good reason why the Rules require the terms and conditions of a costs agreement to be disclosed. If costs are to be sought on an indemnity basis, then the relevant charge rate must come within the parameters of the costs agreement.
I do not suggest that the itemised costs statement prepared on an indemnity basis is inconsistent with the terms of the costs agreement, nonetheless, there has not been compliance with the necessary requirement for the costs agreement to be produced.
It was suggested by counsel for the applicants that the matter could be dealt with by either adjourning the hearing either in whole or in part to enable the applicants to provide the relevant costs agreement. To a significant extent, the issue arises from the presentation of the itemised costs statements on the eve of the hearing. There is a preference expressed by the Court to assess the quantum of costs to avoid further litigation in terms of a taxation of costs likely only to engender further conflict. There is however, no reason why the itemised costs statements and the relevant cost agreements were not provided in a timely fashion.
It is an unfortunate observation that the parties have been mired in litigation since 2019. The recognition by the parties of the high level of conflict engendered by the proceedings would be enough in and of itself to support the decision to have only limited regard to the itemised cost statements and to not allow for a further adjournment to enable cost agreements to be provided.
Given the underlying issue relates to the future parenting arrangements for the two children, there is every good reason not to adjourn the proceedings either in whole or in part in case the ongoing conflict further engulfs the children and drives the parties further apart.
The discussion of the Full Court in Prantage & Prantage (2013) FLC 93-544 (“Prantage”), is of assistance in determining whether, and in what circumstances, an order for indemnity costs should be made.
In Prantage (supra), the Full Court referred extensively to the decision of Kohan & Kohan (1993) FLC 92-340 (“Kohan”). In Prantage (supra) at [77] it was noted that, whilst there was nothing in the Act which in any way “inhibits” a consideration of indemnity costs, the following is said in Kohan (supra) at 79,605:-
it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale, and what its likely impact will be on the financial position of each of the parties.
This impact was a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under sec 117(2A)(a), or perhaps even more as a relevant matter under (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.
In Re Wilcox; Ex parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151, Cooper and Merkel JJ said:-
156.The issue whether costs should be ordered on a party and party basis or on an indemnity basis has acquired increasingly greater significance as the gap between the two bases appears to have grown.
157.The gap has highlighted the conflict between two seemingly irreconcilable objectives. The first is protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis. The second is relieving a successful litigant from the burden of costs which that litigant should not have been required to incur. These and other policy factors have been considered by the courts over a very long period in order to arrive at the principles which govern the undoubted discretion of courts to depart from ordering costs on a party and party basis and ordering costs on an indemnity basis. The principles were stated by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd. (1993) 46 FCR 225.
In Prantage (supra) the Full Court said at 87,209:-
97. In our view, once it is recognised that ensuring access to justice is one of the key objectives of the “usual rule”, the claimed increasing disparity between scale costs and those being charged by lawyers becomes as much an argument against the awarding of indemnity costs as it is in favour of costs being ordered on that basis.
98. With respect to the trial Judge, we are not convinced that there is a great deal of difference between current “commercial realities” and those prevailing at the time Kohan was decided. It should be noted that the costs agreement in Kohan provided for a rate of payment three times in excess of the scale. However, even if there have been changes in the market place for legal services, we are not persuaded this should have any impact on the application of the “usual rule”, which seeks to balance competing public policy considerations.
(Emphasis per original)
I am not satisfied that the circumstances exist that would enable the Court to make a costs order to be assessed on an indemnity basis.
Relevant consideration
Whilst it has been observed that costs orders are rarely made in parenting cases, I do not consider that this could or should in any way suggest that the application of s 117 of the Act is to be applied differently to parenting cases as opposed to financial cases.
The Full Court in Wrensted & Eades (2016) FLC 93-697 considered the majority decision in Hawkins & Roe [2012] FamCAFC 77 and held that:-
103.We agree with his Honour’s analysis of the statements by the majority in Hawkins & Roe, and are much attracted to what Thackray J said in dissent. The examples given by the majority of circumstances in which a costs order may be made and their statement that in such circumstances “a judge may well conclude that there are circumstances justifying an order for costs” does not fetter the wide discretion reposing in the trial judge as long as they are seen as examples rather than requirements. However if the majority in Hawkins & Rowe, by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion.
(citations omitted)
The applicants submit that the relevant considerations pursuant to s 117(2A) of the Act are as follows:
(a)the financial circumstances of each of the parties.
(b)The conduct of the parties in relation to the proceedings.
(c)Whether any party to the proceedings has been wholly unsuccessful.
(d)Whether either party to the proceedings has made an offer in writing to settle the proceedings and the terms of such offer.
The financial circumstances of each of the parties
The applicants have filed a Costs Notice dated 29 May 2024 pursuant to r 12.06 of the Rules. It advises as follows:-
(1)Costs paid to date $149,857.90;
(2)Additional work in progress unbilled $10,434.60;
(3)Counsel fees paid $46,786.68; and
(4)Estimated future fees including attendance of counsel $15,000.
It is not known the basis upon which costs have been paid but it is reasonable to assume that they have not been determined on a party/party basis. The applicants do not nominate the amount of costs that they seek acknowledging that if successful, the quantum of costs would need to be either agreed or as assessed. The amount is likely to be substantial.
The Costs Notice also confirms that the majority of costs incurred, including counsel fees, have been paid.
The applicants set out their financial circumstances by reference to Financial Statements filed on 28 May 2024 but their position is sufficiently summarised by their assessment that their net wealth is about $8,255,000.
The financial circumstances of the respondents are set out in the affidavit of Ms Blagoslav filed 24 May 2024. There is scant detail provided but over and above the interest that the respondents have in their business that provides a facility for supervised time, they do not own any real property or are possessed of significant assets.
The financial position of the respondents can reasonably be summarised as modest.
The applicants have predominantly paid their legal fees. Any significant award of costs would reimburse the applicants to some extent but are likely to have a more significant impact on the respondents.
The lack of evidence provided as to the respondents’ financial circumstances does not enable a more forensic consideration of the real impact of an award of costs and the respondents’ ability to satisfy any order made.
Whilst no finding can be made that the respondents are impecunious, even were that to be the position that does not in and of itself speak against a costs order being made.
Whilst I have little doubt that any order that is made will only further entrench the parties hostility towards each other, I do not consider that such a consideration is a factor that should be brought to account.
The conduct of the parties
Counsel for the applicants point to the attempts by the applicants to resolve their differences with the respondents by mediation in 2016 and 2018. Whilst it may be a matter of history that the respondents did not engage in the mediation overtures made by the applicants, I do not consider that conduct prior to the commencement of proceedings in 2019 are matters relevant to a consideration pursuant to s 117(2A)(c) of the Act.
The applicants point to the Response filed by the respondents on 19 July 2019 which sought that the Initiating Application be summarily dismissed. That application was heard by Judge Kemp on 10 July 2020 resulting in a judgment delivered on 15 October 2020 dismissing the respondents’ summary dismissal application.
The applicants highlight that they did not seek an order for costs. It is assumed that the reference to this episode in the proceedings was to demonstrate that the applicants have adopted a reasonable approach whereas the respondents have not.
It is a relevant consideration that at least as presently formulated, the applicants initially sought their costs in respect of the unsuccessful application for summary dismissal. It would not be appropriate for me to consider costs that relate to that component of the proceedings in circumstances where no application for costs was made and, in any event, the issue was heard and determined by a different judicial officer.
The applicants refer to various attempts to resolve their differences with the respondents at mediation highlighting an order made on 24 September 2021 where a notation was made that a mediation process was to be contemplated. It is apparent that offers to attend mediation were made but were not undertaken with a preference being for court-based dispute resolution.
Fundamentally, the applicants have sought orders that would see a resumption of the children spending time with them whereas the respondents have maintained a consistent position of opposition.
The level of interpersonal conflict that potentially started in 2007 is such that with hindsight, mediation was never likely to be a viable approach. Whilst it is a trite observation that parties are better served by resolving their differences without having to endure ongoing litigation, there are cases where mediation may only inflame the conflict rather than enable a process of resolution. The behaviour and conduct of each of the parties towards the other would likely suggest that an order for mediation was at best, ill-conceived and at worst, likely to further entrench the respective position of the parties.
It is now a matter of record that the behaviour of each of the parties was less than ideal.
In Stylianos & Blagoslav (supra) at [74] I found that there was a “focus by all parties on their own personal animosity with scant regard for the best interests of the children”.
The applicants’ view of Mr Blagoslav namely, that he was the cause of the breakdown of their relationship with their daughter, is not likely to change. This was reflected in the attempts by the applicants to annul the marriage of the respondents in their faith.
For his part, Mr Blagoslav considered that the applicants were “mentally unhealthy”. I also found that Mr Blagoslav had engaged in conduct by resorting to verbal abuse with the intention to cause hurt and upset.
In broad terms, I considered that the parties did not behave with any level of insight as to the advantages to the children of some level of reproachment taking place.
There is no challenge to my findings of poor conduct by each of the parties. Even so, I am not entitled to conflate the parties conduct as a parent and their conduct as litigants. (see Prantage & Prantage (2013) FLC 93-544).
As such, whilst the manner in which the litigation has been conducted is likely to be significantly influenced by the level of disfunction and toxic interaction between the parties, I do not find that this is a matter to be considered in determining whether costs should flow arising from adverse conduct in the proceedings.
The only caveat is in respect of orders made on 1 March 2023 which were based upon the recommendations of a family consultant in 2021 that required the respondents to provide to the children any gifts or cards from the applicants to celebrate certain special occasions and religious holy days.
In Stylianos & Blagoslav (supra), I found that if there was evidence that the gifts and cards were rejected by the children then:
118.…it could only be as a result of the narrative created by the parents and not from their direct knowledge or understanding of the internecine conflict between their parents and the maternal grandparents.
I did not consider that the mother was able to adequately explain non-compliance with the Consent Order and at [122] I found that “The mother’s evidence was unconvincing that the basis upon which the gifts were not received by the children was as a result of their refusal”.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
Consent Orders were made on 1 March 2023 which listed the proceedings for final hearing and by consent, the parties agreed to attend family therapy and in particular, the following:
7.The applicants be permitted to send to the children cards and/or gifts on the following occasions:
(a) The children’s birthdays; and
(b) religious holidays.
8.That the purposes of order 7, the applicant grandparents shall cause cards and social gifts to be delivered to address nominated by the respondent parents.
9.That the respondent parents shall do all things to provide their cards and/or gifts delivered in accordance with order 7 to the children.
10.That the applicant grandparents are restrained from including in the cards any words that:
(a) Denigrate or criticise the respondent parents;
(b) Make reference to the respondent parents;
(c) Refer to any adult issues;
(d)Make any arrangements to spend time with the children or invite the children to spend time with them; or
(e) Refer to the court proceedings.
There is some history to the interim Consent Orders. By Application in a Proceeding sealed 2 February 2023, the applicants sought orders that were ultimately the subject of consent. Annexure “J” to the affidavit of Ms Blagoslav filed 24 May 2024 is a letter from the respondents’ solicitors to the applicants’ solicitors confirming the following:
We refer to your client’s Application in a Proceeding filed 1 February 2023.
Our client instructs us that they will agree to the orders as sought by your client within the application subject to your clients agreeing to participate in therapy with our clients with a view to repair the relationship between the parties and discuss the introduction of time between the children and your clients.
Our clients proposes that the family therapy be conducted by a psychologist…
Whilst the respondents did not receive a timely response from the applicants’ solicitors, there can be little doubt as to the basis for the Consent Order.
As discussed, a decision was made that the family therapy was of no utility given the conduct and behaviour of the parties but of more relevance, is the finding that the respondents had little interest in promoting or encouraging compliance with order 7 of the Consent Orders made 1 March 2023 permitting the applicants to send cards and gifts to the children on the nominated occasions.
Consistent with the trial direction orders made, the final hearing commenced on 20 November 2023. The orders sought by the applicants were that for a period of four months the children spend supervised time with them and thereafter, the time be unsupervised. In addition, the applicants sought to communicate with the children by Skype/Facetime and be able to forward cards and gifts to them on their respective birthdays and other special religious days in the calendar.
The respondents maintained their opposition to the orders sought by the applicants to the intent that there should be no contact or communication between the applicants and the children.
In respect of the respondents’ orders sought, they were wholly unsuccessful. Whilst orders were not made in the precise terms as sought by the applicants, with the Court preferring to delay the introduction of supervised time for one year from the date of the order during which time the applicants were permitted to send cards and gifts to the children, the focus of the orders was to put in place a graduated process that would lead to the children resuming a relationship with the applicants and by necessary implication, the extended maternal family.
The final orders were made on the basis that it would be in the children’s best interests to resume a relationship with the applicants, even though there were some misgivings arising out of the ability of each of the parties to support the orders.
I consider that the respondents have been wholly unsuccessful in seeking orders that the children have no opportunity to resume a relationship with the applicants.
Offers made by each of the parties
It is suggested by the applicants that the single most significant factor in seeking an order of costs are the offers made by the applicants in an attempt to settle the proceedings.
It appears that the first offer was made on 23 September 2021 which sought that the applicants spend supervised time with the children for a period of four months and then unsupervised time from 1.00 pm to 5.00 pm on the last Sunday of each month. In addition, the applicants sought to be able to communicate with the children and to send cards and gifts. That offer was rejected.
A further offer was made by the applicants to resolve the matter on an interim basis on 8 November 2023. The offer sought liberty to send cards and gifts to the children on special occasions. The offer was rejected.
The applicants point to what they consider was the attitude of the respondents to neither mediate nor negotiate a resolution. The argument follows that if they had been prepared to consider any proposals put by the applicants, there would have been no need for a final hearing.
CONCLUSION
I do not consider that the matter can be simplified by highlighting the orders initially sought by the applicants in their Initiating Application, various offers put and then the Consent Orders of 1 March 2023 with the final orders made.
The behaviour of the parties becomes a relevant factor as to whether with hindsight an offer that appears to be reasonable should have been readily accepted. Whilst it might well be suggested that significant criticism was levelled to Mr Blagoslav, I do not ignore the egregious conduct of the applicants.
It was an easy finding that on the evidence the applicants struggle to accept Mr Blagoslav in his relationship with their daughter. Their dislike for him was palpable and their use of their daughter’s diaries setting out aspects of her relationship with Mr Blagoslav go as far back as 2004.
A question of the parties’ poor behaviour is a matter of degree rather than there being any utility in attempting to decide the matter by determining who’s conduct is the more egregious.
Even though orders were made broadly in keeping with the proposal of the applicants, the following remarks in Stylianos & Blagoslav (supra) provide necessary context:
235. An advantage arises as the children age in that they are able to report egregious conduct should it occur when they spend time with the maternal grandparents.
236.It is an essential aspect of the orders that are to be made which has the potential for the children to resume a relationship with the maternal grandparents that they create an environment where the children would understand that their relationship with their parents is supported. If the maternal grandparents are unable to resile from their current position of opposition and open hostility, that is likely to be a sufficient basis for the orders to be reconsidered.
I consider that the respondents were wholly unsuccessful in circumstances where there have been consistent orders sought by the applicants from the outset of the proceedings. I am also of the view that the conduct of the applicants and the aggressive reaction of the respondents would not have enabled any sensible discussion or negotiation to have taken place up to the commencement of the trial process.
Given the Consent Order made on 1 March 2023, there is no good reason for the respondents to have not been prepared to agree a continuation of those orders.
The aspect of the extent of time, if any, that the children should spend with the applicants was a live issue appropriately to be determined at trial. As such, I consider that there should be an order for costs in favour of the applicants for the duration of trial and costs as and from 1 March 2023 to the date of delivery of judgment on 14 December 2023.
I further consider that a significant component of the proceedings was a reasonable reflection of the separate issues to be argued and that whilst ultimately unsuccessful the respondents had an arguable case.
I bring to account the content of the trial material and doing the best that I can, because the respondents did not comply with the Consent Order of 1 March 2023, they should be liable for 50 per cent of the applicants’ costs for the trial preparation and the final hearing.
As discussed, the quantum of costs should be assessed on a party/party basis. Given that I am not able to determine the quantum of costs, as a guide I note the applicants Costs Notice of 17 November 2023 which estimates that the future fees for the preparation and conduct of the hearing to be in the sum of $25,000. In addition, there would be the preparation of trial material.
I make orders as appear at the commencement of these reasons.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 5 June 2024
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