BICKMAN & JULIEN

[2020] FamCA 953

FAMILY COURT OF AUSTRALIA

BICKMAN & JULIEN [2020] FamCA 953

FAMILY LAW – NATIONAL ARBITRATION LIST – arbitrator determined that property interests were to be altered as to 55% in favour of the husband – wife sought costs on the basis that the husband was wholly unsuccessful – no such order made – held, s 117(1) applies.

Family Law Act 1975 (Cth) ss 75(2), 79, 117

Anison & Anison (2019) 59 Fam LR 581
In the Marriage of Hogan (1986) 10 Fam LR 681

APPLICANT: Mr Bickman

RESPONDENT: Ms Julien

FILE NUMBER: PAC 240 of 2019

DATE DELIVERED: 19 November 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: On the papers

DATE OF LAST SUBMISSIONS: 11 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Watson Law Pty Ltd

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Marsdens Law Group

Orders

1. Pursuant to section 117(1) of the Family Law Act each party bears his and her own costs.

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 Bickman & Julien 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: PAC 240 of 2019

Mr Bickman  

Applicant

And

Ms Julien

Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding, one of the growing number of cases under my management in the National Arbitration List in this court, was the subject of an arbitral award made by the Honourable Mark Le Poer Trench on 1 June 2020.

2. The arbitrator’s award was registered as if it were a decree of the Federal Circuit Court of Australia on 11 June 2020 pursuant to orders made that day by his Honour Judge Harman.

3. On 9 September 2020 Registrar Murdoch of the Federal Circuit Court of Australia made an order transferring this proceeding to this court.  Once costs are determined, the trial of this litigation is at an end.

4. By application in a case filed 1 July 2020, the respondent to this proceeding applied for an order under s 117(2) of the Family Law Act that the applicant pay the costs of the respondent on a party/party basis as agreed or assessed. The applicant sought orders dismissing the wife’s costs application and instead sought orders that each party bear his or her own costs, in accordance with s 117(1).

5. The total value of net assets over which the parties were fighting was in the order of $970,000.

6. The arbitrator found that the total value of net assets and superannuation was $953,832.92.

7. The arbitrator weighed the parties’ respective contributions and found that the assessment should be 60% to the husband and 40% to the wife.  Based on s 75(2) factors, the arbitrator added 5% to the assessment in favour of the wife thereby producing a division of net assets as to 55% in favour of the husband and as to 45% in favour of the wife.

8. Against that factual backdrop the respondent wife sought an order requiring the husband to pay her party party costs. She relied on s 117(2A)(e) of the Family Law Act.  She argued that in the upshot of the arbitrator’s final orders, the applicant was ordered to transfer to the respondent his right, title and interest in the Suburb B property and, additionally, that the applicant was ordered to pay the respondent $130,166.  She submitted that while the arbitrator made orders in terms sought by both in relation to the Suburb B property, the additional requirement for the applicant to pay the respondent $130,166 meant that the applicant was wholly unsuccessful in this litigation.

Determination

1. Relying on observations in Anison & Anison,[1] the applicant submitted that the phrase “wholly unsuccessful” for the purposes of s 117(2A)(e) was to be construed as “an application which was without merit (and) has been dismissed”.

   [1] (2019) 59 Fam LR 581.

2. To my mind s 117(2A)(e) is not limited to that construction. True, that is one construction available, but it is not the only one.

3. Here, each party proposed the transfer of title in the Suburb B land to the wife.  The arbitrator made a determination to that effect.  However, the applicant sought a further order to the effect that no other property adjustment be made.  On that he failed because the arbitrator ordered him to pay an additional sum of $130,166.  In other words, on his principle thesis that nothing beyond transferring title to the wife in the Suburb B property should be ordered, he was unsuccessful.  On that component of his application he was wholly unsuccessful.

4. Yet the applicant was not “wholly unsuccessful in the proceeding”.  He succeeded in obtaining an order under s 79 for the division of assets in his favour as to 55%.  To that end, he succeeded in the proceeding.  Applying the reasoning in Anison & Anison his case was not dismissed.  His case was not without merit.

5. It has long been said that a costs order must be just.[2] The value of the assets in this case are relatively modest. I take the view that this case is the very type of case that is within the contemplation of s 117(1). In other words, each party should bear his and her own costs. That conclusion is fortified by the arbitrator’s ultimate conclusion that the net assets should be divided nearly as to half each.

   [2]In the Marriage of Hogan (1986) 10 Fam LR 681.

6. I order that s 117(1) apply to each party’s costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 19 November 2020.

Associate: 

Date:  19 November 2020