Vasilias and Vasilias (No. 2)

[2008] FamCA 304

FAMILY COURT OF AUSTRALIA

VASILIAS & VASILIAS (NO. 2) [2008] FamCA 304

FAMILY LAW – PRACTICE AND PROCEDURE

Family Law Act 1975 (Cth)
APPLICANT:	Ms Vasilias

RESPONDENT: Mr Vasilias

2^nd RESPONDENT

PATERNALGRANDPARENTS:

Mr and Mrs Vasilias (snr)

3^rd RESPONDENT: Mr RW

FILE NUMBER: MLF 3158 of 2005

DATE DELIVERED: 24 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT

WIFE:

Mr Cantwell

SOLICITOR FOR THE APPLICANT

WIFE:

Hogg & Reid

COUNSEL FOR THE RESPONDENT

HUSBAND:

Mr Kordos

SOLICITOR FOR THE RESPONDENT

HUSBAND:

Berger Kordos

COUNSEL FOR THE 2^ND  RESPONDENT

PATERNAL GRANDPARENTS:

Ms Piggott

SOLICITOR FOR THE RESPONDENT

 PATERNAL GRANDPARENTS:

S Kourkoulis & Associates

COUNSEL FOR THE 3^RD RESPONDENT: Mr Rockman

SOLICITOR FOR THE 3^RD RESPONDENT: Rockman & Rockman

Orders

1. BY CONSENT OF ALL PARTIES the legal practitioners referred to in paragraph 1(d) and (e) of the orders made on 12 March 2008 hold such funds as they receive upon the settlement until further order or the agreement with the practitioner for the husband.

IT IS ORDERED BY THE COURT

1. That the husband file and serve upon any relevant party, any application he may be so advised to bring by 4.00pm on 7 May 2008 returnable before me at 9.00am on 20 May 2008.

2. That any respondent to the said application file and serve their responding material by 4.00pm on 15 May 2008.

3. That the interim application filed on 28 March 2008 be otherwise dismissed.

4. That the husband pay the following costs thrown away:

   (a)the wife $1430;

   (b)the second respondent $660; and

   (c)the third respondent $880; and

   (d)that there be a stay of execution of enforcement of those payments for a period of one month from this day.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 3158 of 2005

MS VASILIAS

Applicant

And

MR VASILIAS

Respondent

And

MR AND MRS VASILIAS (SNR)

2^nd Respondent Paternal Grandparents

And

MR RW

3^rd Respondent

REASONS FOR JUDGMENT  

1. This is an application today for some orders pursuant to paragraph 10 of an order that I made on 12 March, giving the husband leave, if he was so advised, to bring an application to vary or set aside orders on the basis that I was not absolutely certain that he had contemplated the orders in respect of at least one of the two respondents.  The husband has filed an application on 28 March seeking the right to exercise that leave.  That application was supported by an affidavit by his solicitor, paragraph 4 of which says that the husband was preparing further affidavit material verifying significant issues in dispute, possibly affecting the validity of the orders.  Nothing further has been filed and we are now at 23 April.

2. Mr Rockman appears on behalf of the third respondent and, although conceding he has not spoken to his client for some weeks, believes that the solution that was agreed upon by all parties on the last occasion was a pragmatic one having regard to the acknowledgment of the debt by the husband and also the amount of money involved in the whole case.  Ms Piggott, on behalf of the second respondent, says that her instructions were that the husband should not be given the opportunity to relitigate the issue but there was also some uncertainty about those instructions.  But in any event, she says that there are reasons why her client should not have the costs thrown away today because as Mr Rockman says, these orders on 12 March were practical. 

3. The sad fact of life in this case is that the wife is caught in the middle, and I have been reassured by everyone today that there is no logical reason why the proposed settlement cannot proceed in March.  To their credits, the second and third respondents have agreed that although the money payable to their clients pursuant to the orders can be paid into the respective solicitors' trust accounts pursuant to orders that they have asked me to make, those funds will be held until either further order of the court or the agreement of the practitioner of the husband.

4. It seems to me that there was no reason for this matter to proceed today, and with the paucity of evidence, not only has the wife but the second and third respondents come along here unnecessarily.  Mr Kordos, on behalf of the husband, opposes any order for costs which each of the three other persons has made.  He says that the costs ought to be reserved on the basis of the nature of the allegations raised.  I must say that the allegations that are proposed to be raised elude me, notwithstanding there may be some suggestion that the second and third respondents do not have full instructions.  Needless to say, the affidavit material proposed has not been filed, so everyone is still in the dark.

5. Section 117 is the provision in the Family Law Act 1975 (Cth) that governs the question of costs. That particular provision makes it clear that each party is to bear their own costs. The exception to that rule is where the court is satisfied that it is just to make an order departing from the rule. On the basis that the husband has contributed to his own demise in many ways - not only by not being here on the last occasion and sending in a letter that was vague in its terms but also because the proposed affidavit material which would have enlightened the parties and enabled them to have some further discussion, has not materialised - the parties have therefore come along here unnecessarily today, and on that basis it seems to me that it is just to make an order.

6. In making an order for costs in those circumstances, I am obliged to look at subsection (2A) of the particular provision, and that requires me to contemplate a number of factors.  I have had the advantage in this case of hearing the whole of the trial, so I am aware of the financial positions of each of the parties.  To say the least, the wife's circumstances are straightened.  I am told by the counsel for the second respondent that her clients are not of substantial means, and the third respondent's financial circumstances can best be described as comfortable, having regard to what I recall of his evidence.

7. In the circumstances, it seems to me that the husband has created the problem that has occurred today.  I propose to make the orders sought by each of the three applicants.  The costs sought by the wife amount to $1430 which, it seemed to me, looking at the scale, is well within the realms of what would normally be expected if the matter was costed according to the scale.  In respect of Ms Piggott, she is only claiming counsel's fees, and again the scale provision seems reasonable.  Mr Rockman, as solicitor, has claimed $880, and whilst that might be somewhat high, having regard to the fact that he has come along today and will certainly lose a number of hours of work, it seems to me that that sum is not unreasonable either.

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  29 April 2008