Xennon and Frangoulis (No. 2)

[2018] FamCA 977

FAMILY COURT OF AUSTRALIA

XENNON & FRANGOULIS (NO. 2) [2018] FamCA 977

FAMILY LAW – COSTS – Circumstances justifying order – Whether an order for costs should be made – Factors to consider.

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Ms Xennon

RESPONDENT: Mr Frangoulis

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4110 of 2015

DATE DELIVERED: 23 November 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 19 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O'Connor SC

SOLICITOR FOR THE APPLICANT: SE Lawyers

COUNSEL FOR THE RESPONDENT: Mr Alevizos

SOLICITOR FOR THE RESPONDENT: Harry Alevizos

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. That the respondent pay the applicant’s costs fixed in the sum of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) plus GST with such sum to be paid to the Trust Account of SE Lawyers for and on behalf of the applicant within sixty (60) days of the date of this order.

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 < Xennon & Frangoulis (No. 2) 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 ADELAIDE

FILE NUMBER: ADC 4110 of 2015

Ms Xennon

Applicant

And

Mr Frangoulis

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms Xennon (“the applicant”) seeks an order that Mr Frangoulis (“the respondent”) pay her costs fixed in the sum of $2,500 plus GST for her legal costs incurred and incidental to her Contravention Application filed 3 May 2018.

2. If the applicant is unsuccessful in her claim for costs she still seeks her costs thrown away in the sum of $550 plus GST arising from the hearing of 5 July 2018.

3. The respondent opposes the costs orders sought by the applicant.

BACKGROUND

1. By order dated 4 August 2017, X born … 2008, Y born … 2011 and Z born … 2013 (collectively “the children”) are to spend time with the respondent from 2 pm until 5 pm Saturday in the first week and from 2 pm until 5 pm on Sunday in the second week. X’s time with the respondent is subject to her wishes. The respondent’s time with the children is to be supervised by Mr and Ms C.

2. On 3 May 2018 the applicant also filed an Application seeking that the respondent’s time with the children be suspended. The Contravention Application and the Application were supported by two Affidavits by the applicant filed contemporaneously.

3. The details of the alleged contraventions was that on 3, 11 and 25 March 2018 and 8 April 2018 the respondent spent time with the children in the absence of Mr and Mrs C.

4. Of particular relevance is the alleged contravention on 8 April 2018 where the applicant stated that Z told her that the respondent had taken him to Kmart and had purchased a quantity of toys. Z reported to the applicant that he was not supervised by Mr and Mrs C.

5. The Application and Contravention Application came before Registrar Paxton on 15 May 2018. The applicant was represented by counsel and the respondent by his solicitor Mr Alevizos. The Registrar ordered as follows:-

   4.That the proceedings be adjourned for an Interim Argument and Contravention hearing before The Honourable Justice Berman on Thursday 05 July 2018 at 10.00am.

6. It was anticipated that the Court would entertain the applications on the adjourned date.

7. On 5 July 2018 senior counsel for the applicant advised the Court that she was ready to proceed with the contravention hearing. The respondent was represented by Ms Lindsay of counsel. The respondent’s instructing solicitor was not present.

8. Senior counsel submitted that the applicant’s solicitors had images on a CD which showed the respondent entering the Kmart store with the child and then leaving the store 45 minutes later without a supervisor. The images were obtained under subpoena and were available for viewing. There is some uncertainty as to whether the respondent or his solicitor viewed the images, but at that time the respondent was prepared to admit that he entered the store for 10 minutes but left the supervisor in the carpark because he was in a hurry.

9. The respondent’s counsel was not ready to proceed with the contravention hearing. She submitted that she had not been properly instructed and did not have the necessary documents.  The following submission was made by counsel:-

   I’m absolutely embarrassed. I’m here on a return on an Application in a Case. I understood. [The Independent Children’s Lawyer] I think will tell your Honour his position. I have tried to communicate with Mr Alevizos about his understanding. I didn’t understand even that the affidavits filed would be before your Honour on a Contravention. My understanding is that the respondent filed documents in response to an Application in a Case.

10. Counsel was frank in her admission that she was not in a position to conduct the hearing and did not believe that there were any funds securing her appearance on a Contravention Application. She had not met with the respondent and intended to conduct the hearing in respect of the Application in a Case on the documents. She apologised to the Court for being “entirely unprepared for a trial”.

11. Counsel had apparently not been able to make contact with Mr Alevizos.

12. An application for an adjournment of the Contravention hearing was made and opposed by Senior Counsel on the basis that she was ready to have heard and determined both the Application in a Case and the Contravention Application.

13. Whilst it was unsatisfactory that counsel had not been properly instructed in circumstances where the order made by the Registrar was clear that the Contravention Application was listed for hearing, given that the respondent required an interpreter and his counsel was frank in her concession that she was ill-prepared for the matter to proceed, I considered that it was in the interests of justice that the hearing should be adjourned.

14. The applicant sought an order for her costs thrown away for the day’s hearing.

15. On 20 July 2018 the applicant elected to proceed with one Contravention namely, that on 8 April 2018 the respondent spent time with Z in the absence of the supervisors.

16. The respondent admitted the breach and conceded that he did not have a reasonable excuse for his non-compliance with the order requiring supervision.

17. It is apparent that the CCTV video footage of the respondent and Z entering and leaving the Kmart store demonstrated that they were in the shopping centre for a period of 45 minutes and not 10 minutes.

18. Judgment as to penalty was delivered on 27 July 2018 and it was ordered that the respondent enter into a bond for a period of one year upon the following conditions:-

    (a)To be of good behaviour during the period of the Bond;

    (b)To comply with all current and future parenting orders.

COST APPLICATION

1. The applicant seeks an order for costs in respect of the Contravention proceedings.

2. She seeks total costs in the sum of $2,500 plus GST, but if unsuccessful then a figure of $550 plus GST representing the costs thrown away for the attendance on 5 July 2018.

3. In considering what orders for costs should be made, the starting point is that generally each party should bear their own costs. If the Court considers that grounds may exist to make an order for costs in favour of a party, then the Court must have regard to the following matters set out in s117(2A) of the Family Law Act 1975 (Cth) (“the Act”):-

   (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 fact, 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.

Should an order for costs be made in favour of the applicant?

1. The principal argument of the applicant is that the Contravention Application was made necessary by the failure of the respondent to comply with previous orders of the court and that he had been wholly unsuccessful in the proceedings given his admission that he had breached an order without reasonable excuse.

2. It is difficult to understand the wholly inadequate submission of the respondent’s solicitor in opposition to the costs application.

3. Mr Alevizos appeared to have little or no knowledge of what had transpired in court on 5 July 2018 and in particular the submissions of counsel ostensibly made on his behalf that she had not been properly instructed.

4. When counsel’s submission was put to him his response was to disagree with counsel’s submission and contend that he had properly instructed counsel as to the listing of the Contravention Application.

5. His submissions did not explain his absence on 5 July 2018, nor the purported inability of counsel to contact him.

6. Mr Alevizos accepted that a Contravention Application was an appropriate process in circumstances where a breach of an order was alleged. Whilst not conceding the point at the first opportunity, he also accepted that the respondent had admitted the breach of the order and conceded that he did so without reasonable excuse.

7. Mr Alevizos may need to consider the application of r 19.10 of the Family Law Rules 2004 (Cth).

8. It could not be said that the Contravention Application was frivolous or vexatious. It was made necessary by the conduct of the respondent in spending time with Z in the absence of the nominated supervisors. There is no suggestion that the respondent was not aware of the condition of supervision and I found that he had chosen to ignore the order. It was only after some considerable reluctance that the respondent accepted he had been in the store with the child for 45 minutes and not 10 minutes as stated.

9. The respondent was wholly unsuccessful and given that Mr Alevizos did not seek to put any information before the Court as to the respondent’s financial circumstances, it is reasonable to assume that as far as he is concerned his circumstances are not likely to be relevant to the determination of the applicant’s request for costs.

10. I am aware generally of the impecuniosity of the applicant and it seems that in the absence of any cogent argument to the contrary, a costs order should be made. I find there is merit in the applicant’s application for costs and note the respondent’s concession that if an order for costs are made then 60 days to pay is sought.

QUANTUM OF THE APPLICANT’S COSTS

1. Senior counsel submitted that if successful she sought an order that the respondent pay the applicant’s costs fixed in the sum of $2,500 plus GST. By reference to the current Family Law Rules 2004 (Cth) and the Costs Schedules that appear therein, I find that the costs are reasonable and I propose to make orders as sought by the applicant.

CONCLUSION

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 November 2018.

Associate:

Date: 23 November 2018