Adamson & Fuller

[2017] FamCA 700

FAMILY COURT OF AUSTRALIA

ADAMSON & FULLER AND ORS [2017] FamCA 700

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Adamson

1ST RESPONDENT:	Mr Fuller
2nd RESPONDENT:	Ms B Adamson
INTERVENER:	Mitchell Family Lawyers

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5740 of 2016

DATE DELIVERED: 8 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Atkinson

SOLICITOR FOR THE APPLICANT: Kennedy Partners

THE 1^ST RESPONDENT: In Person

COUNSEL FOR THE 2^ND RESPONDENT: Ms Moran

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale Lawyers

COUNSEL FOR THE INTERVENER: Dr Ingleby

SOLICITOR FOR THE INTERVENER: Mitchell Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wilkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates

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 Adamson & Fuller 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 5740  of 2016

Ms Adamson

Applicant

And

Mr Fuller

Respondent

Ms B Adamson
2nd Respondent:

Mitchell Family Lawyers
Intervener:     

REASONS FOR COSTS JUDGMENT

1. Ms Adamson (the applicant) seeks costs of $2,112.87 against Mr Fuller (the respondent). On 8 September 2017, I made that order; these are the reasons.

2. The parties were in a de facto relationship. They have pending property and parenting issues pending in a forthcoming final hearing.

3. The applicant is represented by lawyers but the respondent is not. His position is that he cannot afford representation.

4. While the substantive proceedings have been before the Court for many months and do not appear to have advanced much, the relevant application in a case was filed in August seeking the sale of a property of the parties. The evidence showed there had been agreements and negotiations but they did not result in a resolution. At the last moment, notwithstanding he had agreed to sell the property, the respondent said that he wanted to buy it but then could not suggest how that would occur other than that he would negotiate some arrangement with the applicant. That was rejected and I made orders.

5. The costs sought by the applicant from that hearing amount to $2,112.87 which has been calculated on the scale under the Family Law Rules.

6. The respondent objected to paying costs. His position is that all of the actions of the applicant, her mother and their respective lawyers are tactics to financially hurt him. The evidence does not support such an assertion. He also pointed to an order previously made by Johns J for the sale of the property enabling the provision of litigation funding and he cannot understand why that course is now not being followed.

7. As I observed, there are two main assets here. The property which is the subject of the sale is now the subject of a claim by the applicant’s mother that she is owed $400,000 plus interest. The difficulty is that the respondent agrees that the net proceeds will be about $489,000. The applicant seeks the balance over and above what her mother demands.

8. The second asset is said to be a flat in the joint names of the applicant and respondent but over which the applicant’s mother has claimed that she is the equitable owner. If so, the property is not that of the parties to be divided.

9. Apart from those assets, there is little else to divide and then there is the parenting dispute.

10. The respondent’s approach to the sale of the property and how he wanted it resolved resulted in an order forcing the sale. That, in my view, for reasons given at the time, was unnecessary litigation and the applicant incurred legal costs unnecessarily.

11. As I observed to the respondent, costs are not a punishment but intended to compensate the party who has had little choice but to litigate and who eventually has been shown to be justified in taking the course taken.

12. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in “proceedings under this Act” each party shall bear their own costs unless one of the exceptions applies. Before exercising the power, the Court is required to find there is a justification to depart from the principle that each party should pay their own costs.

13. Because of paragraph [10] above, I am satisfied that there is a justifying circumstance here to depart from the principle in s 117 of the Act.

14. By reference to s 117(2A), both parties have limited resources but the respondent is employed and maintains that he has an interest in the sold property but also the flat. On the basis of his assertions, he has assets.

15. The Court is required to consider the public purse but there are no legal aid entitlements here.

16. An important issue is whether or not the respondent has been wholly unsuccessful. I find that he has been and that the application was an unnecessary waste of the costs of the applicant.

17. The quantum of costs is not unreasonable.

18. The respondent should pay the applicant’s costs.

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 September 2017.

Associate: 

Date:  13 September 2017