Stylianos & Blagoslav (No 2)

Case [2024] FedCFamC1F 382

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)…

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Details
AGLC
Stylianos & Blagoslav (No 2) [2024] FedCFamC1F 382
Case
[2024] FedCFamC1F 382
Decision Date

CaseChat Overview and Summary

In the case of Stylianos & Blagoslav (No 2), the applicants, Mr and Ms Stylianos, sought an order for costs against the respondents, Ms and Mr Blagoslav, following a final parenting hearing. The dispute centred around the parenting arrangements for the children of the applicants and the respondents. The Federal Circuit and Family Court of Australia (Division 1) was tasked with determining the application for costs and deciding whether the applicants were entitled to an order for costs on an indemnity or party/party basis.

The primary legal issue before the court was whether the applicants were entitled to an order for costs on an indemnity basis or on a party/party basis. The court examined the conduct of the parties, the financial circumstances of each party, and whether any party had been wholly unsuccessful. Given that the respondents were wholly unsuccessful, the court considered whether the applicants' conduct precluded them from being awarded indemnity costs. The court noted the applicants' aggressive reaction and the respondents' opposition, which had prevented any meaningful negotiation or discussion prior to the trial. The court also considered various offers made by the applicants and the eventual Consent Order made on 1 March 2023.

The court found that the circumstances did not justify an order for indemnity costs due to the applicants' conduct and the lack of an offer to settle on reasonable terms. However, the court did find that the respondents were wholly unsuccessful and, therefore, ordered that the respondents pay one half of the applicants' legal costs incurred from 1 March 2023 to 14 December 2023 on a party/party basis. The exact quantum of costs was left to be determined either by agreement or through a taxation of costs.

The court concluded that the applicants were entitled to an order for costs against the respondents for the duration of the trial and from 1 March 2023 to the date of the judgment. The order specified that the respondents were to pay one half of the applicants’ legal costs incurred from 1 March 2023 to 14 December 2023 on a party/party basis. The form of the order was subject to review or variation in accordance with the relevant rules.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.