Asprey and Delamarre (Costs)
[2013] FamCA 338
•14 May 2013
FAMILY COURT OF AUSTRALIA
| ASPREY & DELAMARRE (COSTS) | [2013] FamCA 338 |
| FAMILY LAW – COSTS – No order as to costs – where circumstances did not justify departure from the usual rule – where costs do not follow the event in matters under the Act – where the respondent was wholly unsuccessful – where there was an arguable case for the respondent – where parties living as a couple on a genuine domestic basis may have very different subjective notions of the nature of their relationship – where parties held different belief as to the nature of their relationship – where neither party acted to prolong or frustrate proceedings – where the respondent had the capacity to meet a costs order |
| Family Law Act 1975 (Cth) ss 117, 4AA(2) |
| Barry & Dalrymple (Costs) [2011] FamCA 365 Collins & Collins (1985) FLC 91-603 Jonah & White [2012] FamCAFC 200 Penfold v Penfold (1980) FLC 90-800 |
| APPLICANT: | Ms Asprey |
| RESPONDENT: | Mr Delamarre |
| FILE NUMBER: | SYC | 4348 | Of | 2011 |
| DATE DELIVERED: | 14 May 2013 |
| PLACE DELIVERED: | Newcastle In Chambers |
| PLACE HEARD: | Not applicable |
| JUDGMENT OF: | Cleary J |
| HEARING DATES: | Written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bridger |
| SOLICITOR FOR THE APPLICANT: | Jo Anna F S Moy Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Maurice |
| SOLICITOR FOR THE RESPONDENT: | Aubrey Brown Partners |
Orders
That the oral Application by the Applicant for costs is dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Asprey & Delamarre (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: (P)SYC4348 of 2011
| Ms Asprey |
Applicant
And
| Mr Delamarre |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Asprey, the applicant to the proceedings heard in February 2013, has now made an application for costs. The application is opposed by the respondent, Mr Delamarre.
Each party to proceedings under the Family Law Act 1975 (Cth) (“the Act”) pays his or her own costs. That is the general rule in s 117(1) of the Act. If the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs and security for costs as the Court considers just (see Penfold v Penfold (1980) FLC 90-800 at 75054).
In considering what order (if any) should be made, the Court must have regard to factors, which I will now consider.
(a) The financial circumstances of each of the parties
The parties rely on their respective Financial Statements:
(a)Ms Asprey affirmed 18 July 2011; and
(b)Mr Delamarre sworn/affirmed 20 September 2011.
There is no updating material.
The applicant works in the financial industry and runs her financial industry business from home. She generates average weekly income of $1,054 from her business. She receives a child care tax rebate of approximately $80 and a family tax benefit of $140 per week. She had a child support entitlement of $97.11 per week which in July 2011 she asserts was not actually being received. Accordingly, the applicant has total income of approximately $1270 to $1370 per week.
Her expenditure exceeds income by about $300 per week. None of the items in Part G of her Financial Statement appear to be excessive or unreasonable for a self-employed person with the majority care of two young children and paying a mortgage.
The respondent is also self-employed in the financial industry. He discloses an income of $829 per week. His expenditure exceeds income by about $900 to $1000 per week. Total mortgage payments are said to be $1313 per week. The majority of this amount relates to a property in M Town additional to the respondent’s home in Suburb N. This is more likely to relate to wealth building rather than necessity. The respondent also has cash investments.
I consider that the respondent is in a much stronger financial position than the applicant. I reject the submission that he is in a weaker position. He has the capacity to meet a costs order.
(b) Legal aid
Neither party had the benefit of a grant of legal aid.
(c) Conduct of the parties with regard to the hearing
The parties conducted the proceedings in an orderly way. The proceedings were concluded within the allocated time.
I do not consider that either party prolonged the proceedings. There were findings adverse to the credit of the respondent, but the hearing was not disrupted by the conduct of the respondent.
The parties had agreed that the original dates for two days hearing be vacated as being insufficient. There was also a common position that this Court would be assisted by the decision of the Full Court in the appeal in Jonah & White [2012] FamCAFC 200. That decision was imminent at the time of the original hearing dates. This has some significance.
The parties quite reasonably raised this matter. The jurisdiction of the Family Court in property disputes between partners to a de facto relationship is comparatively recent and the issue of determining the nature of the relationship between the parties is not straightforward.
(d) Whether a party has been wholly unsuccessful
The respondent has been wholly unsuccessful. That is properly conceded in submissions.
The applicant has had the cost of bringing the proceedings in order to establish jurisdiction for her application for property settlement. She had no other option in the face of the respondent’s application to dismiss that property application on jurisdictional grounds
Generally, costs follow the event, but family law is the exception and pursuant to s 117(1) of the Act parties bear their own costs (see Collins & Collins (1985) FLC 91-603 at 79877). It is not enough to say a party was wholly unsuccessful. That matter alone will not constitute justifying circumstances.
(e) Any other matter
There is another aspect to consider in this matter. The existence of a de facto relationship has been declared having regard to the legal indicia of such a relationship (s 4AA(2)). The legislation includes some circumstances for the Court to consider under the heading “Working out if persons have a relationship as a couple.” It is an objective legal process in retrospect.
By contrast, a marriage is established by a Marriage Certificate which is evidence of a wedding ceremony taking place on a particular date. The parties commit themselves to being a couple when they enter into marriage. Thereafter they may choose whether or not to live together, enjoy a sexual relationship or have children. Spouses may have separate finances and own real estate independently or fuse their income and assets entirely. In whichever way they choose to conduct their lives, the fact of their marriage is unaffected.
Parties who have a relationship as a couple living together on a genuine domestic basis may have very different subjective notions of the nature of their relationship. In the decision of Barry & Dalrymple (Costs) [2011] FamCA 365, Justice Coleman said this at [16]:
Where only two people know the truth, a Court charged with finding the truth on the balance of probabilities must avail itself of every forensic advantage available in order to discharge its statutory obligation.
In my view, it is not always the case that even the two parties themselves “know the truth”, or at least not the same truth. They may genuinely see things differently despite having shared the same experiences. One may see the relationship as a marriage in every respect other than “the piece of paper.” The other may regard the relationship as “boyfriend and girlfriend” or affectionate partners living together, but no more than that. Either one might regard themselves as part of a de facto couple, or not, at different stages. When such a relationship breaks down, the Court is asked to retrospectively define what they had.
In this matter the parties had children together, socialised together and were recognised as a couple by extended family. They did not share a common residence consistently. They did not buy property together or operate any joint bank accounts.
I accept the submission on behalf of the respondent that the respondent’s case was not entirely without merit. The respondent failed to make obvious concessions and was inconsistent in his evidence. The respondent did not want the declaration made. However, I do not consider that the case was about no more than the respondent “concealing the truth.” It was necessary for the Court to hear all of the evidence, including witnesses on each side.
Ultimately, I concluded that although some of the more common indicia in
s 4AA(2) were not present; on the facts and circumstances of this particular relationship, the parties did have a relationship living together on the basis required by the legislation to meet the definition. It was not entirely unreasonable to have the matter tested in Court.
In those circumstances, I do not consider it appropriate to depart from the general principle that each party pay their own costs. I dismiss the application and make Orders accordingly.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on `4 May 2013.
Associate:
Date: 14 May 2013
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