Bacu and Bacu (Costs - Disqualification)

[2010] FamCA 972

FAMILY COURT OF AUSTRALIA

BACU & BACU (COSTS - DISQUALIFICATION) [2010] FamCA 972

FAMILY LAW – COSTS – application for costs of wholly unsuccessful disqualification application

Family Law Act 1975 (Cth)

APPLICANT: Ms Bacu

RESPONDENT: Mr Bacu

FILE NUMBER: PAF 1866 of 2004

DATE DELIVERED: 26 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 26 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McFarlane

COUNSEL FOR THE RESPONDENT: Mr McGrath

Orders

1. The husband pay the wife's costs of the husband's disqualification application, either as agreed or as assessed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 1866 of 2004

MS BACU

Applicant

And

MR BACU

Respondent

REASONS FOR JUDGMENT

1. Before the Court are three costs applications. One arising out of a determination delivered by me this morning in relation to a disqualification application and two arising out of earlier events in the proceedings.

2. Dealing then with the first of those applications. The wife seeks an order that the husband pay the wife's costs of the husband's disqualification application determined today. Such costs to be as agreed or assessed. In support of the application the applicant wife relies on matters delineated in section 117(2A) of the Family Law Act 1975 (Cth) (“the Act”).

3. Firstly, in relation to financial circumstances of the parties, I am directed to the balance sheet which has been filed in the Court.  The latest one being dated 21 May 2010.  That shows the parties' agreed assets at about $1.2 million. There are issues about other assets. The liabilities are stated at about $70,000.  Having some insight into the legal proceedings that have been conducted in this Court, I would also have to accept that each of the parties have probably carried very significant liabilities for legal costs.

4. The wife also relies on a financial statement, sworn by her in February 2010, which paints a picture that she is very income poor with assets of substance significantly connected with the husband in these proceedings and the subject of these proceedings. 

5. On behalf of the husband no particular financial evidence is sought to be relied upon.  It is further submitted that, as a matter of conduct, the husband's application should be seen as one which had no merit at all and finally, that the husband was wholly unsuccessful in that proceeding.  On the husband's side it is submitted that the issue of whether all proper evidence had been before the Court, at a relevant time, will continue to be an issue before the Court, and need to be determined as part of the final hearing.  It is submitted that is the place the determination of the costs application, or any costs application, should be made.

6. An application for disqualification is one which carries with it, usually, a penalty of costs if it is unsuccessful.  In this particular case the statute provides, as I have said earlier, that one of the matters the Court should take into account in determining any costs application is whether either of the parties has been wholly unsuccessful in the proceeding, and in this case the husband was wholly unsuccessful.

7. The other circumstances of the case relied upon by the wife, in my view, support a costs order being made in her favour.  I do not see that deferring this costs application to the conclusion of the hearing is an appropriate determination and I intend to determine it now.  I find that the husband should pay the wife's costs of the application determined today. I will so order.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench J delivered on 26 October 2010

Associate: 

Date:  3 November 2010