BALDIN & BALDIN

[2018] FCCA 1745

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALDIN & BALDIN [2018] FCCA 1745

Catchwords:
FAMILY LAW – Costs – husband’s failure to comply with final property orders – husband to pay the wife’s costs of an application in a case.

Legislation:

Family Law Act 1967, s.117

Applicant: MS BALDIN

Respondent: MR BALDIN

File Number: MLC 3305 of 2017

Judgment of: Judge Riley

Hearing date: 28 May 2018

Date of Last Submission: 28 May 2018

Delivered at: Melbourne

Delivered on: 28 May 2018

REPRESENTATION

Counsel for the Applicant: Ms Sdraulig

Solicitors for the Applicant: Beckwith Cleverdon Rees

Advocate for the Respondent: In person

Solicitors for the Respondent: None

ORDER

1. The husband pay to the wife $3,500 as the costs of the application in a case filed on 11 April 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3305 of 2017

MS BALDIN

Applicant

And

MR BALDIN

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. The wife filed an application in a case on 11 April 2018, alleging that the husband had failed to comply with final property orders made by consent on 8 December 2017. 

2. The matter has largely been resolved today by consent, with provision for certain matters to be done to enable a particular property to be sold, as required by the orders of 8 December 2017, and providing for the husband’s share of the proceeds of sale of that particular property to be reduced by an amount that he was required to pay for the oldest child’s braces.

3. In considering any costs application, the court must consider s.117 of the Family Law Act 1975 (“the Act”). That section provides that, subject to s.117(2) of the Act and certain other presently irrelevant provisions, each party shall bear their own costs of a family law proceeding. However, under s.117(2) of the Act, the court may make an order for costs in a family law proceeding if it considers that there are circumstances that make it just to do so. In considering whether to make an order for costs, the court is required to consider the matters set out in s.117(2A) of the Act.

4. The first matter under s.117(2A) of the Act is the financial circumstances of each of the parties. The parties had a financial settlement in December 2017 whereby the wife received about 70 per cent of the matrimonial property pool, which totalled about $800,000. However, the wife is yet to actually receive a substantial part of that. The wife works part time, earning about $25,000 per year, and also receives Centrelink benefits. The husband claims that he is now unemployed, having previously worked as a (occupation omitted). He says he has been unemployed since October 2017. There is no affidavit evidence about that or about any efforts he has made to secure employment.

5. The next matter to consider is whether either party is in receipt of legal aid.  Neither party is.

6. The next matter is the conduct of the parties in relation to the proceedings.  The husband has written a number of abusive emails and letters to the wife’s solicitor.  To some extent, he threatens violence in those communications. 

7. The next matter is whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court.  The application in a case was necessitated by the husband’s failure to comply with previous orders.  The husband says that it is all the wife’s fault.  However, it seems to me to be obvious that the husband has simply not complied with the orders that he was required to comply with.

8. The next matter is whether any party to the proceedings has been wholly unsuccessful.  The husband in relation to the application in a case has been wholly unsuccessful.

9. The next matter is whether either party to the proceeding has made an offer in writing to settle.  It has not been submitted that either party has.

10. In all the circumstances of this case, it does seem to me to be just that the husband pay the wife’s costs of the application in a case.  The claim is for $3,500.  It seems to me, on scale, the proper amount would be $4,480.   The claim of $3,500 is more than reasonable.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 29 June 2018