BAIN & BAIN

[2014] FamCA 565

FAMILY COURT OF AUSTRALIA

BAIN & BAIN [2014] FamCA 565

FAMILY LAW – COSTS

APPLICANT: Ms Bain

RESPONDENT: Mr Bain

FILE NUMBER: BRC 2481 of 2010

DATE DELIVERED: 24 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: In Chambers following receipt of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston by way of direct access brief

SOLICITOR FOR THE RESPONDENT: Blackston Lawyers

Orders

IT IS ORDERED

1. The Respondent’s Application that the Applicant pay his costs of and incidental to the Application for interim property orders determined on 12 December 2013 is dismissed.

2. No order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bain & Bain 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 BRISBANE

FILE NUMBER: BRC 2481 of 2010

Ms Bain

Applicant

And

Mr Bain

Respondent

REASONS FOR JUDGMENT

1. On 12 December 2013, I dismissed the Wife’s Application for interim property orders and delivered Reasons for Judgment outlining the basis for that determination.

2. The Husband now seeks an order that the Wife pay his costs of and incidental to that Application in a Case on the “standard basis” because:

   a)the Wife was wholly unsuccessful in this interim application; and

   b)the Wife’s prosecution of this interim application caused him to incur unnecessary costs; and

   c)the Wife’s purpose in prosecuting the interim application – namely, so that she could nominate her children or one of them as a beneficiary under the policy which would result in their receipt of no less than about $430,000.00 in the event of her death – was not a just and equitable purpose; and

   d)in bringing the interim application, the Wife failed to lead any evidence to establish the necessity for it being heard on an interim basis in the proceedings between the parties.

3. The Wife opposes the making of any order requiring her to pay the Husband’s costs.

Applicable Principles

1. Section 117(1) of the Act provides that, in proceedings under the Act, each party pay their own costs. This ‘usual rule’ is subject to the operation of s. 117(2) of the Act which provides that, if the Court considers there are circumstances justifying a departure, the Court may make such order as to costs as it considers just.

2. The discretion conferred on the Court by s. 117 of the Act is broad. I acknowledge that justifying circumstances are not to be equated with exceptional circumstances.[1]

   [1]           Penfold v Penfold (1980) 144 CLR 311.

3. In considering what order, if any, should be made under s. 117(2) of the Act, the Court shall have regard to those mattes set out in s. 117(2A) of the Act.

4. In addition to the matters summarised above, the Husband submits, in dealing with the foreshadowed submission that the Wife is of modest means, the Court should have regard to the fact of the Wife’s receipt of spousal maintenance and litigation funding consequent upon earlier Orders made by the Court.

5. It is clear that the Husband’s financial circumstances are significantly superior to those of the Wife. He is a solicitor operating, in partnership, his own law firm while the Wife is unemployed and dealing with matters associated with her recurrent ovarian cancer. The Wife is reliant for her support on Centrelink payments and her receipt of spousal maintenance from the Husband: she has no other means from which to meet an order that she pay the Husband’s costs of the Application for interim property orders. Further, on the Husband’s case, she will not have any property after the finalisation of these proceedings from which to meet an order.

6. Whilst impecuniosity is, of itself, no bar to an order for costs being made where it is otherwise warranted[2], I am not persuaded, in all the circumstances of this case, that there exist sufficient justifying circumstances to depart from the usual position as expressed in s. 117(1) of the Act.

   [2]           For example, see: D & D (Costs) (No 2) (2010) FLC 93-435

7. Accordingly, there will be no order as to costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 July 2014.

Associate:     

Date:              24 July 2014