Abney and Welch

[2018] FamCA 549

FAMILY COURT OF AUSTRALIA

ABNEY & WELCH [2018] FamCA 549

FAMILY LAW – COSTS – Where the husband filed an application for costs to be paid by the wife following a trial by way of rehearing after a successful appeal – Where the application is opposed by the wife – Neither party was wholly unsuccessful – Where an offer was made by the husband which was better than the ultimate order made by the Court – Where the wife did not have adequate knowledge to give the offer proper consideration in the time specified – Where it was reasonable for the husband to raise the issue – No order as to costs.

Family Law Act 1975 (Cth), s 117

Browne & Green (2002) 29 Fam LR 428

APPLICANT: Mr Abney

RESPONDENT: Ms Welch

FILE NUMBER: NCC 629 of 2013

DATE DELIVERED: 2 July 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 25 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. That the Application in a Case of the Husband filed on 28 March 2018 is dismissed.

   
   
   

2. That the Response of the Wife filed on 5 June 2018 is dismissed.

1. That in the event Simon Harben SC renders fees for attendance at Court on 24 May 2017 as a Single Expert then each party shall be responsible for one half of those costs.

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 Abney & Welch 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 NEWCASTLE

FILE NUMBER: NCC 629 of 2013

Mr Abney

Applicant

And

Ms Welch

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application in a case for costs filed by Mr Abney whom I shall refer to as the husband.  The application follows a decision by me on 6 March 2018 after a four-day hearing in 2017.  The matter had been sent back for rehearing by the Full Court after a successful appeal against the first trial in November 2015. 

2. The application is opposed by the respondent Ms Welch who I will refer to as the wife.  Both parties were self-represented in this application.  The matter came before me in a duty list on 25 June 2018.  Submissions were made on that day and the decision was reserved.

Evidence

1. The documents relied on in respect of the application were as follows: 

The [Applicant] husband, Mr Abney

(a)Application in a Case filed 28/03/2018;

(b)Affidavit of the husband filed 28/03/2018;

The [Respondent] wife, Ms Welch

(c)Response to an Application in a Case filed 05/06/2018;

(d)Affidavit of the wife filed 05/06/2018.

Brief History of Relevant Events

1. On 19 June 2018, the husband filed an amended application in a case together with a further affidavit.  When the matter came before me, the wife sought leave to rely on a further affidavit in response.  The amended application was subsequently withdrawn by the husband and dismissed, both parties wishing for the matter to proceed. 

2. In looking at those applications, the application of the husband then is for costs to be paid by the wife in the sum of $37,455, and (2) that in the event of a single expert (who had given evidence), rendering fees, that they were to be paid by the wife. 

3. For the wife, there were 12 orders sought.  Of those, some were in the nature of an appeal,[1] or adult-child maintenance,[2] a section 79 application,[3] matters pertaining to the protection of s 121 of the Family Law Act 1975 (Cth) (“the Act”),[4] and allegations of perjury.[5] 

   [1] Order 1

   [2] Orders 5, 6 & 7

   [3] Order 8

   [4] Orders 9 & 10

   [5] Order 11

4. The relevant paragraphs for the purpose of this cost application were Order 2, namely, that the orders sought by the husband be dismissed, and Order 4, that each party pay half of any costs incurred with the single expert Simon Harben SC. 

5. Section 117 of the Act represents a legislative departure from the general legal principle that costs follow the event. Subject to Section 117(2), each party to proceedings under the Act shall bear his or her own costs. If the Court is of the opinion that there are circumstances justifying it in doing so, the Court, subject to certain subsections, may make such order as to costs as the Court considers just. In this case, there are circumstances which justify a departure from the legislative principle, primarily, the making of an offer by the husband. Accordingly, the discretion is triggered, so I must consider what order, if any, should be made, taking into account the factors in s 117(2A) of the Act.

6. The first consideration is the financial circumstances.  The wife has an income stream from superannuation and pension benefits.  The husband too has an income stream less than that of the wife.  Both have been medically retired from their former employment.  Each has a piece of real estate. 

7. Neither party had the benefit of a grant of Legal Aid for the proceedings before me. 

8. The conduct of the proceedings, although complained of by both parties, but particularly by the respondent wife, is not relevant in these circumstances where no findings of misconduct were made.  The hearing itself was prepared and heard in a timely way. 

9. Neither party was wholly unsuccessful.  An order was made for payment of $52,052 by the husband to the wife.  The wife had sought a much greater figure.  The husband had ultimately sought dismissal. 

10. Finally, the offer:  an offer was made by the husband.  In the Full Court decision in Browne & Green (2002) 29 Fam LR, the Full Court reflected on the insertion of section 117C into the legislation in this way:

    The insertion of s 117 into the legislation is a clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration is something to which very significant weight indeed ought normally be given.[6] 

    [6]Browne & Green, p 439

11. The words:

    … where there is adequate knowledge of the parties at the time the offer is made to give it proper consideration …

    are words which have relevance in consideration of this section. 

    It could be said that both these parties, especially this being a second hearing, could have been expected to be knowledgeable about issues in dispute and attuned to the possibility of settlement just prior to hearing.  Analysis of the offer, however, reveals some difficulties. 

12. The offer in writing was made on Friday 19 May 2017.  The husband was, at that time, representing himself.  The email was sent at 2.34 pm on that day.[7]  The offer was stated to be open until 4.30 pm on that day.

    [7] Affidavit of the wife filed 5/06/2018, Annexure page 89

13. The evidence of the wife is that she did not have the whole of that two-hour period.  She received the email at 3.25 pm on the Friday afternoon.  At that time, the wife wanted legal advice and did not feel that she had sufficient time to obtain it.  There is a proper basis for the wife’s position about legal advice.  Certainly, the offer of a payment of $100,000 was better than the ultimate order made by the Court, but there were other components to the offer in relation to choses in action where the common law claim and Worker’s Compensation claim of the husband were both canvassed at the trial.  It was also, in respect of paragraph 4 of the offer, hard to interpret given that the husband’s position was that there was to be a cash payment of $135,000 by him to the wife and an equivalent super split back to him of the same amount.  His paragraph 4, it states as follows: 

    The parties shall forego any claim they may have to any superannuation benefit or interest belonging to or earned by the other, except as dealt with in these orders. 

14. It was only during the course of the trial that the husband abandoned that positon and simply sought dismissal of the wife’s application.

15. Had the offer been made earlier or left open until 10.00 am the first day of trial on the following Tuesday, there could have been more weight to be given to the offer, despite the complications regarding the superannuation and common law claim.

16. In the circumstances, I take the view that the wife did not have adequate knowledge in order to give the offer proper consideration in the time that was available to her before the offer expired.

17. I conclude that an order for costs should not be made.  It was, however, reasonable for the husband to raise the issue given that the offer exceeded the amount that was ultimately ordered.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 2 July 2018.

Associate: 

Date:  2 July 2018