Vardakas and Kanavas (No 2)
[2021] FamCA 419
FAMILY COURT OF AUSTRALIA
| VARDAKAS & KANAVAS (NO. 2) | [2021] FamCA 419 |
| FAMILY LAW – COSTS – no basis shown for deviating from the operation of s 117(1). |
| Family Law Act 1975 (Cth) ss 60I, 117(1), 117(2), 117(2A) Family Law Rules 2004 (Cth) r 19.18 |
| Fitzgerald v Fish (2005) 33 Fam LR 123 In the Marriage of Hogan (1986) 10 Fam LR 681 Rice & Asplund (1978) 6 Fam LR 570 Vardakas & Kanavas [2021] FamCA 385 |
| APPLICANT: | Ms Vardakas |
| RESPONDENT: | Mr Kanavas |
| FILE NUMBER: | MLC | 5221 | of | 2008 |
| DATE DELIVERED: | 22 June 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | On the papers |
| DATE OF FINAL SUBMISSION: | 15 June 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | Mr G. Glezakos |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale Lawyers |
Orders
Pursuant to s 117(1) each party bears his and her own costs of and incidental to the application brought by the mother, the subject of my determination in this proceeding on 7 June 2021, reported at [2021] FamCA 385.
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 Vardakas & Kanavas 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 MELBOURNE |
FILE NUMBER: MLC 5221 of 2008
| Ms Vardakas |
Applicant
And
| Mr Kanavas |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 June 2021 I handed down ex tempore reasons for judgment[1] dismissing the mother’s application for contact with her daughter, the mother having failed to comply with the prerequisite steps ordered by Dessau J in December 2011 prior to commencing any further application in relation to the daughter.
[1]Vardakas & Kanavas [2021] FamCA 385.
The father sought his costs on a solicitor/client basis of and incidental to the application that I dismissed. The mother revisited that application contending the making of a costs order is, to use her words, “harsh, inequitable, unfair and unjust.”
The sum sought by the father, assessed on a solicitor/client basis was $8,674. The mother said scale costs were $5,660.
The mother relied on historical contentions against the father. Specifically she stated –
a)the father breached paragraphs 4, 6 and 7 of the existing parenting orders;
b)the father was “withholding” the child from the mother;
c)the father is a psychotic schizophrenic;
d)the father has failed to attend upon a particular psychologist; and
e)the father has stopped sending the mother details of the child’s schooling documentation.
The father contended that the mother’s submissions on costs did not address the relevant elements in s 117(2A) of the Family Law Act. The father argued that the mother’s application was misconceived and it was appropriate to make a costs order against her.
In accordance with the orders I pronounced on 7 June 2021, each party filed written submissions on costs.
Synopsis
For the reasons that follow, in my view the provisions of s 117(1) should apply with the consequence that each party’s costs should be borne by him and her.
Consideration
Relevantly paraphrased, s 117(1) of the Family Law Act provides that, subject to s 117(2), each party should bear his and her own costs. Section 117(2) permits the court making an order that deviates from an order of the sort prescribed by s 117(1). In making an order under s 117(2), the court must consider each of the matters canvassed in the subsections of s 117(2A) of the Family Law Act.
An order may only be made under s 117(2) if it is just to do so.[2]
[2]In the Marriage of Hogan (1986) 10 Fam LR 681.
Further, only one element of s 117(2A) needs to be engaged in order for the court to make an order under s 117(2) that is different to an order under s 117(1).[3]
[3]Fitzgerald v Fish (2005) 33 Fam LR 123.
In this case the father sought costs to be assessed on a solicitor/client basis. The Family Law Rules permit such an order to be made.[4] However, certain authority, while ageing, provides that any departure from an order under s 117(1) is exceptional. Here, the father argued that the mother’s application that I dismissed was bound to fail by reason of its disregard of the provisions of paragraph 10 of the orders of Dessau J made on 22 December 2011. The father additionally submitted that despite the mother being not legally represented –
a)she delayed over 10 years in bringing her application;
b)she did not appeal against the orders made by Dessau J;
c)she failed to comply with the provisions of s 60I of the Family Law Act by bringing her application without first having sought to resolve the matter; and
d)the mother did not show any change in circumstances sufficient to invoke principles discussed in Rice & Asplund.[5]
[4] Rule 19.18 of the Family Law Rules.
[5] (1978) 6 Fam LR 570.
Further the father submitted that the mother owned real estate that she could pledge in order to raise any sum ordered against her by way of costs.
In this case the child is 16. She has two years to elapse before she attains her majority. The orders made by Dessau J as a prerequisite to enlivening this court entertaining a further application by the mother are strict. However, the mother did not appeal against them. Those orders continue to apply. The mother must meet the requirements of paragraph 10 before bringing any further application to modify the operation of Dessau J’s orders. The mother told me she had no intention of seeking psychiatric assistance. She is entitled to maintain that stance. However, if she does not seek psychiatric assistance, the operation of paragraph 10 of Dessau J’s orders presents a very significant if not insuperable hurdle for the mother.
The mother was unrepresented before me. She pressed for the orders she sought without the benefit of legal advice. Had she sought legal advice she would undoubtedly have been advised that her application was likely to fail by reason of her failing to comply with paragraph 10 of Dessau J’s orders. However, she did not seek that advice and instead brought her application that failed. She contended that her daughter’s wish was for the mother and the daughter to spend time together. The mother seemed to consider that to have been sufficiently compliant with her evidentiary obligations on her application. I accept that she may not have been cognisant that the provisions of paragraph 10 of Dessau J’s orders were necessary prerequisites for the mother to meet, even before any consideration was given to Rice & Asplund issues.
The order sought by the father for a costs order to be made on a solicitor/client basis required me to make an order that was exceptional. I do not accept that exceptional circumstances have been shown for the imposition of such an order. While it was true that the mother failed to comply with the regime prescribed by Dessau J prior to the mother seeking the orders she sought on 7 June 2021, there was nothing exceptional in her bringing that application, albeit doomed. She simply failed in her application. The regime prescribed by s 117(1) is applicable, in my view. I take the view that a costs order against the mother would not be just in all the circumstances, still less would a costs order made on a solicitor/client basis be appropriate.
Having said that, the mother should be under no misapprehension that prior to bringing any further application in this proceeding, she must adhere to the stipulations in paragraph 10 of the orders of Dessau J made on 22 December 2011. She should take these reasons to put her on alert that she may very well face a costs order if she fails to do so.
Order
I order each party bear his and her own costs of and incidental to the application brought by the mother, the subject of my determination in this proceeding on 7 June 2021, reported at [2021] FamCA 385.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 22 June 2021.
Associate:
Date: 22 June 2021
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