Ayre and Ayre (No.2)

[2018] FCCA 1897

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYRE & AYRE (No.2) [2018] FCCA 1897

Catchwords:
FAMILY LAW – COSTS – Consideration of S.117(1), (2) & (2A) of Family Law Act (1975) – husband’s conduct of the proceedings – where wife substantially successful.

Legislation:

Family Law Act 1975, ss.117 (1), (2) & (2A)

Cases cited:

Penfold v Penfold [1980] HCA 4

Applicant: MS AYRE

Respondent: MR AYRE

File Number: LNC 591 of 2016

Judgment of: Judge McGuire

Hearing date: 10 July 2018

Date of Last Submission: 10 July 2018

Delivered at: Burnie

Delivered on: 13 July 2018

REPRESENTATION

Counsel for the Applicant: Mr M Verney

Solicitors for the Applicant: Matthew Verney Lawyer

Counsel for the Respondent: Ms A Trezise

Solicitors for the Respondent: Dobson Mitchell Allport

ORDERS

1. That the husband pay the wife 75% of the wife's costs of the conduct and preparation of the trial in this matter on the basis of the scale set out in the Federal Circuit Court Rules 2001 such to be agreed or taxed.

IT IS NOTED that publication of this judgment under the pseudonym Ayre & Ayre (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BURNIE

LNC 591 of 2016

MS AYRE

Applicant

And

MR AYRE

Respondent

REASONS FOR JUDGMENT

1. I have before me an Application by the wife seeking costs on a party/party basis in respect of the substantive trial of her Section 79 Application. Counsel for the applicant wife pursues a quantum of costs at $19,786 “plus disbursements”. Although I am told that the quantum is calculated on the scale pursuant to the Family Law Rules, there are no particulars of the quantum sought or of the disbursements.

2. The Application is opposed.

Relevant Law

1. Matters of costs are provided for at Section 117 of the Family Law Act 1975 (“the Act”) where subsection (1) provides a general rule that each party to proceedings shall bear his or her own costs.

2. That general rule however, is subject to a discretion in trial judges at subparagraph (2) to make an award for costs if the Court is of the opinion that there are circumstances which justify it doing so.  That discretion is a broad one and with no incumbent special onus on an applicant seeking an order for costs[1].

   [1] Penfold v Penfold [1980] HCA 4

3. At subsection 2A, the Act mandates a number of considerations to be referenced for the Court to make an order for costs, if any. They are:

   (a)     The financial circumstances of each of the parties to the proceedings;

   (b)     Whether any party has Legal aid in the terms of any grant of aid;

   (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, corrections to answers, questions, admissions of facts, production of documents and similar matters;

   (d)     Whether the proceedings were necessitated by the…