Cameron and Brook (No 2)

[2015] FamCA 537

FAMILY COURT OF AUSTRALIA

CAMERON & BROOK (NO 2) [2015] FamCA 537

FAMILY LAW – COSTS – Order made

Family Law Act (1975)(Cth) s117(1)

APPLICANT: Ms Cameron

RESPONDENT: Mr Brook

FILE NUMBER: BRC 2216 of 2014

DATE DELIVERED: 13 July 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: Considered in Chambers, after the receipt of  written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway (by way of written submissions)

SOLICITOR FOR THE APPLICANT: Damien Greer Solicitors

SOLICITOR FOR THE RESPONDENT: Phillips Family Law

Orders

IT IS ORDERED THAT

1. The Applicant pay the Respondent’s costs of and incidental to the Application for interim spousal maintenance and interim property settlement orders contained within the Response to Initiating Application filed by the Applicant on 24 October 2014 and the Response to Application in a Case filed by the Respondent on 8 December 2014 and that:

   (a)such costs be paid in an amount calculated on the standard basis as agreed between the parties or, failing agreement, as assessed on the standard basis;  and

   (b)such costs, in the amount agreed or assessed, be paid by the Applicant to the Respondent within 30 days of her receipt of the funds ordered pursuant to Clauses 6(f) or 6(g) of the Order made 30 April 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cameron & Brook (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 BRISBANE

FILE NUMBER: BRC 2216 of 2014

Ms Cameron

Applicant

And

Mr Brook

Respondent

REASONS FOR JUDGMENT

1. On 30 April 2015, I disposed of the Applicant’s application for spousal maintenance and the competing applications for interim property settlement orders by making orders in terms sought by the Respondent. Each party was afforded the opportunity to make submissions in relation to the question of costs. Each party took that opportunity by the provision of written submissions which I have considered in Chambers without the necessity of further appearance.

2. The Respondent seeks an order that the Applicant pay his costs of and incidental to the interim applications. The Applicant opposes the making of any such order. The secondary submission made on her behalf is to the effect that, if an order is made requiring her to pay the Respondent’s costs, the operation of such an order should be stayed until the property settlement proceedings between the parties are finalised.

Applicable Principles

1. Section 117(1) of the Family Law Act (1975)(Cth) provides that each party to proceedings under the Act shall bear his or her own costs. However, if having regard to the matters set out in s 117(2A) of the Act, the Court is satisfied there are circumstances which justify it, the Court may make such order as to costs as it considers just.[1]

   [1] Section 117(2) Family Law Act (1975) (Cth).

2. I have concluded that the following circumstances justify the making of an order that the Applicant pay the Respondent’s costs of and incidental to the interim applications heard on 16 December 2014 and disposed of by the order made 30 April 2015:

   a)the Applicant was wholly unsuccessful in her application for spousal maintenance and in her application for the sale of specific property to provide funds for interim litigation funding; and

   b)the Respondent was successful in persuading the Court as to the terms of order to be made to resolve the disputes between the parties; and

   c)the Respondent had made his opposition to the application for spousal maintenance clear on a number of occasions[2] well before the matter was heard and had clearly outlined that he would rely upon that position in the event the application was pressed; and

   d)the Respondent had made a number of attempts to resolve these applications, including one[3] by which the Applicant would have received more by way of interim spousal maintenance than she received as a consequence of the Order made on 30 April 2015; and

   e)the Applicant will have the financial capacity – once the terms of the April 2015 Order are put into effect – to meet such an order.

   [2]           19 June 2014, 15 July 2014, 4 August 2014 and 12 November 2014.

   [3]           Made on 12 December 2014.

3. I note the submissions made by Mr Galloway of Counsel for the Applicant to the effect that the Applicant’s financial position is much weaker than the Respondent’s. In considering this submission, I take into account the fact that the Respondent will continue to ensure the Applicant receives no less than about $2,767.10 per week financial support[4] and that she has already had access to and utilised $465,000.00 (being the entirety of the nett proceeds of sale from the former matrimonial home) and that the Respondent will continue to pay $634.00 per week child support, about $1,000.00 per week to meet the children’s educational expenses and about $119.00 per week to meet the cost of their medical insurance.

   [4]As particularised at paragraph 5 of the Reasons for Judgment delivered 30 April 2015, save for the amount set out in paragraph 5(b).

4. I also take into account that both parties will be in the positon of meeting their respective legal costs from the nett sale proceeds of property, that the Applicant failed to persuade that she was unable to support herself adequately and that relative impecuniosity, of itself, is no bar to an order for costs being made where, as I have determined here, it is otherwise warranted.[5]

   [5]           See, for example, D & D (Costs) (No 2) (2010) FLC 93-435.

5. Given that the Applicant will receive $102,571.33[6] toward those legal costs outstanding at the time the application was heard and a further $300,000.00 by way of partial property settlement from the sale proceeds of real property, I am not persuaded that it is appropriate for the Respondent to await the payment of such costs until the conclusion of the proceedings between the parties. Once the real property is sold, the Applicant will then have the means to meet the costs ordered to be paid and there is no proper reason why the Respondent should be required to await the receipt of the same.

   [6]           Characterised as partial property settlement.

6. For the reasons outlined above, I consider that orders in the terms set out at the commencement of these short Reasons are just.

I certify that the preceding eight(8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 July 2015.

Associate:     

Date:              13 July 2015