Aheb and Aheb (No. 2)

[2009] FamCA 157

FAMILY COURT OF AUSTRALIA

AHEB & AHEB (NO. 2) [2009] FamCA 157

FAMILY LAW – COSTS – husband’s unsuccessful application

Family Law Act 1975 (Cth)

APPLICANT: Mr Aheb

RESPONDENT: Ms Aheb

FILE NUMBER: MLF 2471 of 2006

DATE DELIVERED: 12 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

COUNSEL FOR THE RESPONDENT: MR MORT

SOLICITOR FOR THE RESPONDENT: JANE BALDWIN

Orders

1. That the husband pay the wife’s costs fixed in the sum of $4634.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2471  of 2006

MR AHEB

Applicant

And

MS AHEB

Respondent

REASONS FOR COSTS JUDGMENT

1. On 5 February 2009, I dismissed the husband’s application in relation to orders that I had made on 30 December 2008.

2. The wife now seeks an order for costs in relation to the husband’s unsuccessful application.

3. Provision was made for any response to the wife’s application for costs but as at 27 February 2009, no such response was received nor has any been received thereafter.

4. Section 117 of the Family Law Act 1975 (Cth) governs the question of costs in family law proceedings. The provision is clear that each party is to bear his or her own costs. The exception to that rule is that the Court may depart from that principle if there are circumstances justifying the Court so doing. If there are such circumstances, the Court is obliged to take into account the matters set out in s 117(2A) of the Act.

5. In this case, the husband did not attend the proceedings on 30 December 2008 nor did he appeal against those orders or seek leave to appeal against them. He chose in the circumstances to seek to set aside the orders and seek different orders. Having regard to the nature of the application before me in December and the position adopted by the husband in the hearing on 5 February 2009, he has put the wife in a position where she has had little alternative but to participate in the proceedings. Those circumstances together with matters to which I shall now refer justify a departure from the principle in s 117(1).

6. The financial circumstances of the parties as outlined in counsel’s submission dated 18 February 2009 are stark in their contrast.  The wife has a limited income.  The husband has had access to significant sums of money over a period of twelve months.  I shall not repeat the matters that I set out in my earlier judgment.  More importantly however, both parties have significant financial resources tied up in the disputed property proceedings which will resume in June 2009 before Murphy J.  There is no circumstance here that warrants me being reticent about making an order for costs against the husband having regard to the ongoing dispute between the parties over significant assets.

7. I am certainly not aware of any party being in receipt of any legal aid assistance nor would I expect that to be the case. 

8. In relation to s 117(2A)(c) I am entitled to take into account the conduct of the parties in relation to their diligence particularly about the presentation of the case. Counsel for the wife submitted that the husband had persistently breached court orders and referred in particular to the most recent order of Murphy J on 28 November 2008. There can be little doubt that the husband has left a grave question mark about just exactly what happened to money to which he had access. The question of disclosure was a very significant argument in the proceedings before me and if what the wife asserted was correct, it may have significant bearing on the ongoing substantive property proceedings.

9. I have little doubt that the husband’s attitude towards the orders of Murphy J on 28 November 2008 contributed to the fact that the wife had to take action as a protective measure in relation to the property interests of both parties.  In so doing, she exposed significant irregularities in relation to the use of money which I am satisfied was not properly explained by the husband.  As the husband then made the application in February as I outlined in my reasons for judgment, he can only be seen to use the words of counsel for the wife as the “architect of his own destiny”.  In my view, this is a case in which the husband’s lack of disclosure and apparent ignoring of court orders has created problems for the wife involving her in unnecessary litigation.

10. I am also entitled to take into account that the husband has been wholly unsuccessful in the proceedings.

11. This is a case therefore where an order for costs against the husband is warranted. 

12. An order for costs is a discretionary issue. In addition to making such an order, the quantum of those costs is a matter that is discretionary as well. Attached to the submission dated 18 February 2009, counsel for the wife set out costs on the scale referred to in the schedule to the Family Law Rules 2004. Having examined the file and comparing it with the costs claimed, they seemed to be well within the range of reasonableness. The husband has not put in any response not only in relation to the issue of costs generally but also not said anything in relation to quantum. I am satisfied in the circumstances that the quantum claimed namely $4634 is reasonable in the circumstances.

13. I order that the husband pay the sum of $4634 costs.

I certify that the preceding Thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 March 2009