Ayers and Henley (No.2)
[2009] FMCAfam 1067
•19 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AYERS & HENLEY (No.2) | [2009] FMCAfam 1067 |
| FAMILY LAW – Costs – ordered that the husband pay the wife’s costs of the proceeding as he was found to be wholly unsuccessful in the contested final hearing. |
| Family Law Act 1975, s.117 Family Law Rules 2004, r. 22.13(3) |
| Applicant: | MS AYERS |
| Respondent: | MR HENLEY |
| File Number: | MLC 161 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 15 & 16 June 2009 |
| Date of Last Submission: | 16 June 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Goldsworthy |
| Solicitors for the Applicant: | Rigoli & Associates |
| Solicitors for the Respondent: | Starnet Legal |
ORDERS
The respondent husband pay the applicant wife’s costs of and incidental to these proceedings, fixed in the sum of $8,350.00.
IT IS NOTED that publication of this judgment under the pseudonym Ayers & Henley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 161 of 2008
| MS AYERS |
Applicant
And
| MR HENLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter proceeded by way of final hearing before me on 15 and
16 June 2009 in relation to an adjustment of property as between the parties.
On 21 August 2009, I delivered my judgment and made orders finalising property matters.
Those orders provided, inter alia, that the husband transfer to the wife all his right, title and interest in the former matrimonial home, that she refinance and indemnify the husband in relation to the mortgage registered over that property and that she forthwith have the sole right to occupy the real property.
Upon the pronouncement of those orders, Counsel for the wife was given leave to make an oral application that the wife’s costs arising of and incidental to the proceedings in the sum of $8,350.00 be paid by the husband.
In support of the wife’s oral application that a costs order be made against the husband, Counsel for the wife submitted that the wife had made an open offer of settlement prior to the commencement of the final hearing to resolve the matter on the basis that she receive a payment from the husband of $40,000.00 and he retain the former matrimonial home.
The orders sought by the wife at the final hearing are reflected in the orders ultimately made by me.
It was argued on the wife’s behalf that the equity in the matrimonial home was determined by me to be $53,000.00, and that accordingly the final outcome for the wife is such that she is receiving an amount much greater than that which she was prepared to accept to resolve the matter.
An order was made that the solicitors for the respondent husband file and serve written submissions in response to the applicant wife’s oral application for costs on or before 4 September 2009 to enable the court to make a determination as to the costs issue.
The husband filed an appeal in relation to my determination, as did his sister. The husband did not seek to stay my orders pending the hearing of the appeals.
The husband’s solicitors, by way of correspondence, asked that the issue of costs not be dealt with until the determination of the appeals. Correspondence was forwarded by the court to the husband’s solicitors advising that in the absence of a formal stay application, the orders would remain in full force and effect, including those relating to the oral application for costs and seeking that any written submissions in relation to same be received by 4.00 pm on 1 October 2009. No written submissions have been received.
The appeals of the husband and his sister have now been deemed abandoned pursuant to the provision of rule 22.13(3) of the Family Law Rules 2004.
The law
Section 117(1) of the Family Law Act 1975 (“the Act”) provides that generally in family law proceedings, each party will be responsible for the payment of their own costs.
However, section 117(2) of the Act makes provision that if the court is of the opinion that circumstances justify it in doing so, it may make such order as to costs as the court considers just.
Section 117(2A) of the Act sets out those factors which the court should take into account when considering an application pursuant to section 117(2) in the following terms:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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 facts, 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.
The wife in these proceedings has the sole care of the parties’ four children and receives no financial assistance whatsoever from the husband for their care. The wife has little English, no formal education and little prospects for employment. She is wholly dependent upon social security payments.
The husband is employed [in the transport industry]. It was his evidence that he earns somewhere in the vicinity of only $200.00 per week, and is otherwise dependent upon the assistance of his family for his accommodation and support.
I made findings in the running of the matter that the husband had been less than forthcoming in his disclosure of his true financial position and that there were elements of his evidence that were at best disingenuous and at worst deliberately misleading to the court.
A matter that occupied a considerable part of the hearing of this matter was whether the husband’s sister was owed some $34,000.00 by the parties, being payments she claimed she made in relation to the arrears that accumulated in relation to the mortgage over the former matrimonial home over a period from 2007 to 2009. The husband supported his sister’s claim that she was owed those funds by the parties.
Having heard all the evidence, including the evidence of the husband’s sister, Ms N, I found that I could not be satisfied that the husband’s sister had been the source of the funds that met the arrears of the mortgage, and further determined that if she was the source of those funds, any amount owing or payable to her was a personal liability of the husband and not the parties jointly.
The wife was not in receipt of legal aid funding in relation to the property proceedings before me. If she is required to pay her costs in relation to these proceedings, it will dramatically impact upon her financial circumstances.
On any view, the husband has been wholly unsuccessful in the property proceedings before me. The wife had indicated to the husband prior to the matter proceeding by way of final hearing that she was prepared to resolve property matters between them on a basis that was considerably less advantageous to her than the orders ultimately made by me.
In all those circumstances, I believe it appropriate that I should make an order that the husband bear the costs of the wife of these proceedings in the sum of $8,350.00, that being a figure I am satisfied is reasonable for the costs incurred by her in having to have the matter fully litigated before the court.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 19 October 2009
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