Tsocas and Rilak

[2017] FamCA 289

FAMILY COURT OF AUSTRALIA

TSOCAS & RILAK [2017] FamCA 289

FAMILY LAW – COSTS – Application by the father for costs on a party and party basis – Where the mother was aware of the father’s application for costs despite no costs assessment being filed – Where the mother was wholly unsuccessful in her Contravention Application – Where the mother’s failure to disclose information in relation to her Contravention Application is relevant in assessing costs – Orders made for the mother to pay the father $5,000 by way of costs.

Family Law Rules 2004 (Cth)

Family Law Act 1975 (Cth) s 117(2A)
Evidence Act 1995 (Cth) s 91

APPLICANT: Mr Tsocas

RESPONDENT: Ms Rilak

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 11 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: IN CHAMBERS

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented

Orders

IT IS ORDERED

1. That within 28 days the mother pay to the father the sum of $5,000 by way of costs in relation to the Contravention Application filed by her on 17 March 2016.

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 Tsocas & Rilak 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

Mr Tsocas

Applicant

And

Ms Rilak

Respondent

REASONS FOR JUDGMENT

1. On 22 July 2016, judgment was delivered and orders made in a Contravention Application filed by the mother Ms Rilak(“the mother”) alleging that the father, Mr Tsocas (“the father”), had contravened orders providing for the mother to spend time with their child.

2. At the conclusion of the hearing, the father sought costs. His submissions were made orally. The mother was not present in Court and directions were made for her to file written submissions in relation to the father’s application for costs. The father was directed to serve upon the mother an assessment of costs on a party and party basis.

3. The mother has filed written submissions and an affidavit sworn by her on 24 November 2016. She is aware of the submissions made on behalf of the father because she deposed to having a transcript of the proceedings. Further, in the reasons delivered on 22 July 2016, the father’s submissions were fully set out so that they would be available to the mother. That portion of the reasons is reproduced below for convenience.

   79. The father earns between $35,000 and $38,000 per annum. He pays $600 per week for board for himself and his two children. He has sold his home to pay the amounts he was ordered to pay to the mother pursuant to orders for property settlement, and retains $260,000. The mother pays minimal child support, and he is responsible for the financial support of the two children in his care.

   80. The mother is not in paid employment. She has received from the father sums totalling $163,182 for property settlement, interest and costs.

   81. She has yet to pay to the father the costs awarded to him in the Full Court by way of Order made 24 June 2015.

   82. Neither party is in a superior financial position. The father has more income and assets than the mother, but he also has the financial responsibility for two children.

   83. Neither party is in receipt of legal aid.

   84. In relation to the conduct of the proceedings, the father referred to the history of the proceedings. The mother’s Contravention Application was filed on 17 March 2016. The application was listed for hearing in a Judicial Duty List on 18 May 2016. On that occasion the mother appeared for herself and Counsel appeared for the father. The matter was not reached and it was referred to the List Clerk for the allocation of a further date, reserving the costs of both parties.

   85. On 15 June 2016 an Application in a Case was filed by the mother seeking, inter alia, an urgent listing of her Contravention Application. That application was rejected for filing by a Registrar, in Chambers, in the absence of the parties.

   86. Not only was the mother ready to proceed with the application on 18 May 2016, but she was anxious that an early date be allocated for the matter to proceed when it was not reached in the Judicial Duty List.

   87. The father, in relation to conduct, also relies upon an offer of settlement forwarded by the mother to the father on 12 January 2016. In summary, the mother proposed to resolve the matter on the basis that the child live with her, that the father retain the money he was ordered to pay by way of property settlement ($130,187.67), and the mother would not then file a proposed application asserting 54 breaches, at that date, of the orders.

   88. The father did not accept the offer. The mother filed the Contravention Application.

   89. Also in relation to conduct, the father relied on the mother’s failure to disclose relevant matters in her affidavit in support of her Contravention Application, including, but not limited to, the fact that PRFC had refused to continue supervision and the fact that, on a day when she complained that there was no telephone call (29 December 2015) she was, in fact, with the child at the specified time.

   90. I consider that only the last of these matters, the failure to disclose relevant information, is relevant to the issue of costs.   

   91. The mother has been wholly unsuccessful in the proceedings. This is a relevant factor.

4. The mother also deposed to being served with an assessment of costs although no copy of the assessment has been filed. She deposed that the father’s costs are assessed at $22,055.55.

5. The application is to be determined having regard to the provisions of s 117(2A) of the Family Law Act 1975 (Cth) which is set out below:

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (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, admissions 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.

1. The mother opposes any order for costs.

2. She asserts that she has been denied procedural fairness in that she has not been served with a written application for costs. I reject that submission. The Family Law Rules 2004 (Cth) do not require an application for costs to be made in writing. The mother refers in her submissions to a number of documents served upon her by the father in which reference is made to the fact that he seeks costs, including a submission that the Contravention Application should be “summarily dismissed with costs”. In any event, the mother was aware from the judgment and orders made 22 July 2016 both that costs were sought and the basis on which the father’s application was made.

3. The mother disputed that the father’s stated financial position was accurate but provided no evidence to support her assertion other than her reliance on selected portions of Reasons for Decision of the Social Security Appeals Tribunal dated 8 May 2015 which is not admissible by virtue of s 91 of the Evidence Act 1995 (Cth).

4. There is no evidence about the mother’s financial position contained in her affidavit.

5. I consider that the fact that the mother was wholly unsuccessful in her application, combined with the fact that she withheld evidence which, if disclosed, would have demonstrated that, in relation to two of her allegations, there was evidence which disproved her allegation of contravention, would warrant the making of an order for costs against the mother.

6. The only evidence of the mother’s financial position is that the father was required to pay her approximately $130,188 by way of property settlement. The father asserted that the sum had been paid. The mother did not deny that assertion.

7. It is appropriate that the mother make a contribution towards the father’s costs of the proceedings. I consider it appropriate that she pay $5,000.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 April 2017.

Associate:

Date:  11 May 2017