Beklar and Beklar (No 2) - [2012] FamCA 953

FAMILY COURT OF AUSTRALIA

BEKLAR & BEKLAR (NO. 2)

[2012] FamCA 953

FAMILY LAW – INTERIM COSTS – Where wife applied for an order that the husband pays costs of her interim costs application in which the wife was all but wholly successful – Where wife’s non-compliance with orders to enable an orderly and cost-effective approach to the determination of interim costs is afforded greater weight despite being largely successful in that application – Where wife’s application for costs of her interim costs application is dismissed.

Family Law Act 1975 (Cth) s 117(2), 117(2A)

APPLICANT:

Ms Beklar

RESPONDENT:

Mr Beklar

FILE NUMBER:

SYC

3556

2008

DATE DELIVERED:

30 October 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

30 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Paul & Paul

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

The wife’s application for costs of her Application in a Case filed 30 August 2012 is dismissed.
THE COURT NOTES the list of witnesses is as follows:
a.in the wife’s case:
i.herself.
b.in the husband’s case:
i.himself;
ii.his wife, Ms F;
iii.his mother, Ms Beklar Snr;
iv.his sister, Ms H;
v.his father, Mr Beklar Snr;
vi.Mr J;
vii.Ms K; and
viii.Mr I.
That the parties agree that the balance of the husband’s shareholdings with A Ltd Employee Share Fund will be updated in relation to which the single expert Mr L will undertake that valuation, the costs of which the parties will share equally.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beklar & Beklar (No. 2) 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 SYDNEY

FILE NUMBER: SYC 3556 of 2008

Ms Beklar

Applicant

And

Mr Beklar

Respondent

REASONS FOR JUDGMENT

These reasons are delivered orally.
Today I made orders in relation to an application by the wife that the husband pay interim costs or an interim property settlement order be made. The gravamen of the applications was to secure a fund for her legal expenses for the forthcoming fourth attempt at a final hearing.
The wife has been all but wholly successful in her application and, as a consequence, has applied for an order that the husband pays her costs of her interim costs application. I agree that her success in the application is a justifying circumstance within the meaning of s 117(2) of the Family Law Act 1975 (Cth) (“the Act”). However, it does not follow that having established justifying the circumstance that a party is automatically entitled to their costs.
Section 117(2A) of the Act requires that the Court considers the matters therein and conducts a balancing exercise of those factors which weigh for or against a particular proposition qua costs.
Both parties have filed Financial Statements and, as will be seen from my reasons published today, the husband’s financial circumstances are superior to the wife’s; the effect of which is that s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FamCA 953
Decision Date

CaseChat Overview and Summary

In *Beklar & Beklar (No. 2)* [2012] FamCA 953, the Family Court of Australia considered an application by the wife for the husband to pay the costs of her interim costs application. The wife had been largely successful in her substantive application, which sought to secure a fund for her legal expenses for an upcoming final hearing.

The primary legal issue before the court was whether the wife should be awarded costs for her interim costs application, despite her success in the underlying application. This required the court to consider the provisions of sections 117(2) and 117(2A) of the *Family Law Act 1975* (Cth), which mandate consideration of justifying circumstances and a balancing of various factors when determining costs.

Justice Ryan noted that while the wife's success in her application constituted a justifying circumstance under s 117(2), it did not automatically entitle her to costs. Applying s 117(2A), the court engaged in a balancing exercise. Although the husband's superior financial circumstances weighed in the wife's favour, and she had made offers to settle for less than she ultimately secured, these factors were outweighed by the wife's significant non-compliance with court orders. Specifically, the wife failed to file her interim costs application within the timeframe directed by the court, necessitating further directions and leading to the preparation of expensive written submissions. This conduct was afforded greater weight by the court.

Consequently, the court dismissed the wife's application for costs of her interim costs application, finding that her non-compliance with orders designed to facilitate an orderly and cost-effective determination of the issue was a decisive factor against awarding costs in her favour.

Orders