Casey and Casey (No 2)

[2011] FamCA 1064

FAMILY COURT OF AUSTRALIA

CASEY & CASEY (NO. 2) [2011] FamCA 1064

FAMILY LAW – COSTS – Husband’s application for costs dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Casey

RESPONDENT: Ms Casey

FILE NUMBER: SYC 2113 of 2010

DATE DELIVERED: 6 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 6 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: Mr Sweet

SOLICITOR FOR THE RESPONDENT: Stojanovic Solicitors

Orders

1. That the husband has leave to make an oral application for costs of the wife’s application in a case.

2. The husband’s application for costs is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Casey & Casey 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 2113 of 2010

Mr Casey

Applicant

And

Ms Casey

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application by the husband that the wife pays his costs incurred in her application for interim spousal maintenance.

3. Pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”), each party to proceedings under the Act shall bear his or her own costs. This is subject, relevantly, to subsection (2), which requires that the Court first satisfy itself that there are circumstances which justify a court in making an order for costs.

4. In this case, the justifying circumstances are the terms of an offer of settlement made by the husband under cover of solicitor’s letter of 25 November 2011.

5. Turning then to the matters which the Court must consider pursuant to s 117(2A).

6. Firstly the financial circumstances of the parties to the proceedings.  I have already made findings in relation to this and they do not require repetition.  As is clear from the parties’ financial statements and affidavit evidence, the husband’s financial circumstances are presently materially superior to the wife’s and the application of the subsection favours the wife.

7. Subsection (b), does not apply. 

8. No submissions are made in relation to subsection (c) or (d).

9. Subsection (e), relates to whether any party to the proceedings has been wholly unsuccessful.  The husband has been unsuccessful in the sense that he sought dismissal of the application which has not been the outcome.

10. The wife abandoned her s 77 application and appropriately pressed her alternate application.  She has been partially successful and not wholly unsuccessful and the application of the subsection favours the wife.

11. Subsection (f) relates to an offer of settlement and the terms of any such offer.  It is upon this subsection that the husband particularly presses his application.

12. He offered to settle the wife’s claim on the following basis.

    i)Partial property settlement constituted by a lump sum payment to her of $7500 within 30 days and to meet the shortfall between insured medical costs and those incurred by the wife in undertaking surgery.

    ii)A periodic payment pending further order of $225 per week directly to a real estate agent.

    iii)For a period of six months or until final order, whichever first occurs, up to $250 per week for a motor vehicle lease.

13. There are considerable points of similarity between the offer made by the husband and the Court’s order.  For example, however, categorised, the wife will receive $6,000.00 as a lump sum towards rental expenses whereas the husband offered $7,500.00.  No provision is made in these orders for surgery related expenses.

14. Pursuant to the orders she receives a periodic sum which totals $450.00 per week compared to the offered $225.00 per week plus, for a period of six months, $250.00 a week towards her car payment.

15. I respectfully agree with the submission made by counsel for the wife that a point of difference in relation to the $250.00 offered in relation to the motor vehicle is that one cannot be certain that these proceedings will be finalised within six months. That the Court’s orders are not limited in the manner proffered by the husband, at least in relation to the motor vehicle, is a difference of some significance.

16. Thus, while there are notable similarities between the offer of compromise made by the husband and the outcome achieved by the wife in these proceedings, they are not identical. 

17. The fact of the offer nonetheless is a matter to which it is appropriate to attach weight in favour of the husband.

18. It is not suggested that there are other matters that the Court is required to consider in determining this application.

19. This was a case not without complexity and brought by an applicant in difficult personal and financial circumstances.

20. On balance, and notwithstanding the husband’s offer of settlement, it is appropriate to give greater weight to the wife’s poor financial circumstances and not order costs against her.  While in some respects it may be said that the wife’s present poor financial circumstances ought not carry weight because the husband is willing to take his costs from any property settlement ordered in the wife’s favour, that is not an approach which, in this case, finds favour.

21. It could not be said, in my view, that the wife’s presentation of the wife’s case for a sum greater than that achieved by her or offered by the husband was completely lacking in merit and I am persuaded no order for costs should be made.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 6 December 2011.

Associate:     

Date:              9 February 2012