Budiarti and Zavahir and Anor

[2016] FamCA 1135

FAMILY COURT OF AUSTRALIA

BUDIARTI & ZAVAHIR AND ANOR [2016] FamCA 1135

FAMILY LAW – COSTS – Where the applicant sought to join the other party to the proceedings – Where the application to join was unsuccessful – Where the other party seeks indemnity costs – Where the application for costs is adjourned for further consideration at the conclusion of the property adjustment proceedings

Family Law Act 1975 (Cth) s 117(1)

APPLICANT: Ms Budiarti

RESPONDENT: Mr Zavahir

OTHER PARTY: Ms Beliz

FILE NUMBER: BRC 1270 of 2014

DATE DELIVERED: 12 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 12 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Marrinan

Doyle Family Law

THE RESPONDENT: No Appearance

COUNSEL FOR THE OTHER PARTY: Mr Linklater-Steele

SOLICITOR FOR THE OTHER PARTY: SBA Lawyers

Orders

1. The application for costs made by the paternal grandmother is adjourned for further consideration at the conclusion of the property proceedings as between the husband and the wife, which include the application for s 106B orders against the husband and his mother.

2. That the paternal grandmother has liberty to apply.

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 Budiarta & Zavahir and Anor 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 BRISBANE

FILE NUMBER: BRC 1270 of 2014

Ms Budiarti

Applicant

And

Mr Zavahir

Respondent

And

Ms Beliz

Other Party

EX TEMPORE

REASONS FOR JUDGMENT

1. On 3 November 2016, I pronounced orders and published reasons for judgment for making those orders on an Application in a Case in property proceedings between the wife and the husband who are parties to substantive property and parenting proceedings pending in this court for which trial dates in the new year have already been allocated.  That application was an Application in a Case by the wife to join as a party to the proceedings her former mother-in-law, the mother of the husband in the proceedings.  The respondent to that application resisted it and in my judgment I determined that the application to join her as a party ought be dismissed and I set out my reasons therein.

2. The successful respondent to that application as I call her, the paternal grandmother, subsequently made an application for her costs of and incidental to that Application in a Case and her costs of and incidental to this application  for costs being heard today, to be paid to her on an indemnity basis by the wife in the proceedings. 

3. It is submitted on behalf of the maternal grandmother by her counsel, Mr Linklater-Steele, that the general position set out in s 117(1) of the Family Law Act that each party to proceedings under the Act bear his or her own costs is displaced in this case.  He submits the Court would make a finding that there are circumstances that justify the court in making a costs order and that making a costs order on an indemnity basis would be a just outcome. 

4. I have considered Mr Linklater-Steele’s written submissions and heard his oral submissions in support of that argument.  Principally, as I understand his submissions they are, effectively, that his client, who is not of great financial circumstances, has been wholly successful on the disputed issues about whether she should be joined as a party to the proceedings and, therefore, she ought to be successful. 

5. As I understand his submissions in response, Mr Marrinan refers to the financial circumstances of his client and the fact that the decision whether or not the paternal grandmother ought to have been made a party on his client’s application was a fairly difficult decision to make.  He submitted that his client ought to be regarded as having some justification in taking the steps that she did, notwithstanding that ultimately the application was unsuccessful and dismissed. 

6. I am mindful that it is a discretionary determination by me in which I am required to consider in determining whether the circumstances justify a costs order and if so, the nature of the costs order to be made, all of the matters that are set out in s 117(2A) of the Family Law Act.  That discretionary enquiry is broad indeed.  That is clear having regard to sub-section (g) of that section which refers to the court being able to consider other matters as are relevant. 

7. The underlying factual circumstances alleged by the wife in this case and raised by her in support of her unsuccessful application to join her former mother-in-law, surround her application for orders pursuant to s 106B of the Family Law Act to set aside transactions whereby cash in the amount of a couple of hundred thousand dollars was transferred from the husband to his mother at various points in time just prior to and post separation.  Whether those transactions ought to be set aside and orders made based on the recovery of those amounts back to the pool of property being divided between the parties will be central issues for determination at the trial.

8. I am of the view at this point in the proceedings that the determination of whether or not circumstances justify the making of a costs order in favour of the paternal grandmother is one most appropriately left now to the conclusion of the determination of the substantive property matters between the parties and in particular, insofar as the paternal grandmother is concerned, the issues that give rise to the wife’s application for orders pursuant to s 106B.

9. I do not consider it appropriate to determine a costs application in respect of the unsuccessful application to join the paternal grandmother in a factual vacuum that does not ultimately include the determination of the application pursuant to s 106B. Accordingly, I order as follows.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 December 2016.

Associate: 

Date:  19 January 2017