Barre & Barre

These proceedings have a long and complex history. The central dispute concerned enforcement of a binding financial agreement between the Applicant Wife, Ms Barre, and the First Respondent Husband, Mr Barre. This was finally resolved by the Court in Barre & Barre [2021] FamCA 101. Following this, there remained residual issues concerning superannuation, which were dealt with in Barre & Barre (Superannuation) [2021] FamCA 463. The only remaining issues are those which may arise out of the husband’s bankruptcy. However, this remains to be seen. The finalisation of the husband’s bankruptcy awaits, in part, the sale of certain properties in accordance with the Court’s orders in the primary judgment, or the possibility of negotiation with the husband’s trustee in bankruptcy. The Third Respondent in these proceedings is Ms Gilliam, with whom the husband was in a relationship for a time. Ms Gilliam was joined to the proceedings on 8 May 2019 upon her application to intervene as a creditor of the husband. She has made a range of applications in the proceedings, which have been dismissed as having no jurisdictional basis. This judgment deals with Ms Gilliam’s claim for costs.

Ms Gilliam filed a document entitled “Respondent Ms Gilliam Minute of Order” on 12 July 2021. Ms Gilliam seeks various orders in relation to costs and property. However, the Court has already dealt with these issues. The Court is not persuaded any of these orders should be made. The central orders sought are Orders 6, 7 and 8. The others are ancillary to or consequential upon the making of Orders 6, 7 and 8. Thus, the main question is whether Ms Gilliam should receive a costs order in her favour of any sort.

The relevant principles with respect to costs in this Court are well settled. Section 117 of the Family Law Act 1975 (Cth) is the central provision. The starting point is that each party shall bear his or her own costs. However, if the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs, and security for costs as the Court considers just. An applicant for costs need not establish extraordinary or exceptional circumstances, however there must be circumstances which, at the absolute discretion of the Court, justify a costs order. In determining whether a costs order should be made and in what form, the Court has regard to the considerations set forth in s 117(2A) of the Act, namely: (a) the financial circumstances of each of the parties to the proceedings; (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; (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, directions to answer questions, admissions of facts, production of documents and similar matters; (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court; (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; (f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and (g) such other matters as the Court considers relevant.

In this case, there were no justifying circumstances for a costs order in Ms Gilliam’s favour. The Court considered the financial circumstances of the parties, and Ms Gilliam’s conduct in the proceedings. It was clear that Ms Gilliam’s conduct in the proceedings counted against any exercise of a costs discretion in her favour. Having also had regard to the requirements for parties to ensure the just and efficient resolution of disputes, the Court was not persuaded that Ms Gilliam had established any circumstance justifying a cost order in her favour.

Finally, the wife applies for her costs of this application against Ms Gilliam. The Court accepts the circumstances of this case makes it desirable for a specific amount to be fixed, “so as to avoid the parties being involved in lengthy, contentious and expensive assessment of the costs,” and particularly where there is already an acceptable basis upon which to determine the appropriate amount. I am satisfied a costs order should be made against Ms Gilliam in favour of the wife. Bearing in mind Ms Gilliam is self-represented, I am not persuaded an indemnity costs order is warranted. I will order Ms Gilliam to pay the wife’s costs of the application, which are the subject of this judgment, fixed in the amount of $1,100.