Barnes and Barnes and Anor (No 3)

[2017] FamCA 679

FAMILY COURT OF AUSTRALIA

BARNES & BARNES AND ANOR (NO. 3) [2017] FamCA 679

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Barnes

RESPONDENT: Mr Barnes

INTERVENOR: Mr Harris

FILE NUMBER: MLC 4997 of 2016

DATE DELIVERED: 4 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way of Written Submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Nedovic Lawyers

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

SOLICITOR FOR THE 2^ND RESPONDENT: Hall & Wilcox

Orders

1. That the wife pay the husband’s costs of the attendance upon the review by agreement and failing agreement as assessed but that the payment of such costs be reserved to the trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Barnes & Barnes and Anor (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4997  of 2016

Ms Barnes

Applicant

And

Mr Barnes 

Respondent

And

Mr Harris 

2^nd Respondent

SUPPLEMENTARY REASONS FOR COSTS JUDGMENT

1. On 2 August 2017, I made orders relating to costs arising out of a review application.  The determination arose out of a review of a registrar’s decision by the second respondent.  I do not intend to repeat what I there said.

2. However, at [6] of the judgment, I indicated that the husband, who had been the recipient of a costs order which had been reviewed, had not filed written submissions and I did not determine the matter any further.

3. It has subsequently been brought to my attention that the application for costs and the written submissions underpinning it were filed by the husband consistent with the order made on 6 June 2017.  For reasons which I am unable to explain, the submissions were not brought to my attention by the court administration.

4. Having become aware of the orders of 2 August 2017, the solicitors for the husband wrote requesting that I determine the matter on the basis of those submissions.  The submissions of the wife who had sought to review the costs orders said there should be no costs orders against her.

5. Section 117 of the Act provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify a departure from that principle and if such circumstances apply, the court must, before making any such order, consider the matters set out in s 117(2A).

6. The basis upon which the original order for costs was made by the registrar was that the wife had indicated that she intended to assert that the second respondent had somehow colluded with the husband in relation to a valuation exercise which ultimately gave rise to a settlement about which the wife is now seeking relief under s 79A of the Act.

7. The allegation was not pursued as became evident when the wife filed her formal claim but the registrar made the order for costs on the basis that the husband had gone to the trouble of having to contemplate that.  On review, I had to deal with the same issue and found that the husband had unnecessarily incurred costs (see para [36] of the judgment 31 July 2017).  At the review hearing, the husband appeared by counsel and I upheld the decision of the registrar in relation to that costs order. 

8. The husband having to participate in the review hearing and being successful, requires a consideration of whether or not there is a justifying circumstance to depart from the principle in s 117.  The allegation was made by the wife albeit in the early stages of the litigation but it did require the husband to be involved in a wasted legal exercise.  Having to defend that position on the review where he was again successful, in my view justifies a departure from the principles set out in s 117(1) of the Act.

9. The husband seeks costs of $6443.64 but that the issue of costs be reserved to the trial. The schedule attached to the submission refers to “Schedule 3 – Itemised scale of costs Family Law Rules 2004” and my interpretation of that is that it has been drawn according to scale. However, I am unable to determine whether or not all of those items are reasonable in the circumstances and therefore the appropriate order is to require the parties to reach agreement failing which, the matter can be assessed by the registrar and the payment of those costs can be reserved to trial.

10. In respect of s 117(2A) of the Act, there is no suggestion in this case of any financial difficulty from the parties’ perspectives because they are litigating over property worth some millions of dollars.  There is no suggestion in this case of conduct as a litigant which would justify a court making a finding that something unusual happened here other than to which I have referred in the early part of the proceedings.  There are no legal aid considerations here.  The important factor however is that the husband has been wholly successful and the wife in so far as it relates to her, wholly unsuccessful.

11. The order therefore is justified and should be made.

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 September 2017.

Associate:

Date:  4 September 2017