Chosar & Chosar (No 2)
[2023] FedCFamC2F 1391
•30 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chosar & Chosar (No 2) [2023] FedCFamC2F 1391
File number(s): PAC 5076 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 30 October 2023 Catchwords: FAMILY LAW – PARENTING – Costs
FAMILY LAW – PROPERTY – Costs
Legislation: Family Law Act 1975 (Cth) s 117 Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 16 October 2023 Place: Parramatta Counsel for the Applicant: Mr Macarounas Solicitor for the Applicant: Rowlandson & Co Solicitors Solicitor for the Respondent: Mr Vassili ORDERS
PAC 5076 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CHOSAR
Applicant
AND: MR CHOSAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 OCTOBER 2023
THE COURT ORDERS THAT:
1.The wife’s Application in a Proceeding filed 25 July 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
This is the determination of the wife’s application for costs against the husband in relation to parenting and property proceedings which were the subject of final Orders made by the Court on 16 June 2023.[1]
[1] Chosar & Chosar [2023] FedCFamC2F 735.
The wife’s application for costs against the husband was set out in her Application in a Proceeding filed 25 July 2023.
The husband opposed the wife’s above Application as set out in his Response filed 11 August 2023.
PROPOSALS
The wife proposes:
1.That the respondent subject to order 2, pay the applicant's costs of and incidental to these proceedings.
2.That the respondent pay the applicant's costs of and incidental to these proceedings:-
2.1on an indemnity basis; or
2.2.in the alternative to 2.1 on a solicitor/client basis, or in the alternative on a party/party basis as agreed or assessed; or
2.3in the alternative to orders 2.1 and 2.2, in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; or
2.4in the alternative to 2.1, 2.2 and 2.3, in lump sum form as assessed by this Honourable Court.
3.That the respondent pay the applicant's costs of and incidental to this application.
The husband proposes:
1.That the Application in a Proceeding filed 14 July 2023 be dismissed.
2.That there be no order as to costs with the intention that each party bears their own costs in this Application and of the proceedings.
The ICL, pursuant to her Submitting Notice filed 1 August 2023 did not seek to be heard on the question of costs and submits to any order made by the Court.
MATERIAL RELIED UPON
The wife relies upon:
(a)Her Application in a Proceeding filed 25 July 2023;
(b)Her affidavit filed 14 July 2023;
(c)Her written submissions filed 4 September 2023;
(d)Her written submissions in reply filed 13 October 2023;
(e)Her tender bundle, Exhibit A.
The husband relies upon:
(a)His Response filed 11 August 2023;
(b)His affidavit filed 11 August 2023;
(c)His written submissions in reply filed 15 September 2023.
RELEVANT LEGAL PRINCIPLES
The Court refers to section 117 of the Family Law Act 1975 (Cth) (the Act) in relation to the wife’s costs Application.
Under subsection (1) of section 117, each party to the proceedings bears his or her own costs subject to, inter alia, subsection (2) of section 117. The Court refers to subsection (2) and subsection (2A) of section 117.
Section 117(2) provides:
(2)If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.
Subsection (2A) of section 117 of the Act states:
(2A)In considering what order (if any) should be made under subsection (2), the Court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the Court considers relevant.
The Court has considered all of the parties’ documentary material referred to above and their oral submissions. The Court refers to its Reasons for Judgment and related Orders dated 16 June 2023.
Relevant matters under subsection (2A) will now be considered.
(a) the financial circumstances of each of the parties to the proceedings;
At the final hearing the Court assessed that the husband’s income earning capacity was probably greater than that of the wife. The Court stated that each party had reasonable earning capacities. The Court refers to paragraphs 326 and 330 in its judgment referring to financial resources that may well be available to the husband. The Court refers to paragraph 334 in its judgment referring to the value of the husband’s 40 per cent of the net property pool being some $406,842.
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
Neither party is in receipt of a grant of legal aid.
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
The Court refers to its reasons for judgment, specifically its section 75(2) discussion under the sub-heading “Financial disclosure by the husband”.
At the final hearing there was some cross-examination of the husband relating to the above issue of financial disclosure and related oral submissions. Had the husband provided adequate financial disclosure this cross-examination and related oral submissions may well have been significantly avoided however it is not clear to the Court that what transpired to be a three day hearing (both as to parenting and property) would have been significantly shortened (for example, to a two day final hearing) had such cross-examination been avoided. It is not possible from the evidence before the Court on this costs Application to clearly determine whether the wife’s lawyers prior to the final hearing carried out significant additional legal work (and invoiced the wife accordingly) in relation to this discrete financial disclosure issue. And finally, the Court would observe that the husband’s incomplete financial disclosure was one of several matters taken into account by the Court in determining that there should be a 10% adjustment under s 75(2) in the wife’s favour.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
Not applicable.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The Court is not persuaded that the husband has been wholly unsuccessful in the proceedings; for example, at final hearing the wife sought Orders that the husband spend only daytime time with the child yet in the Court’s final parenting Orders the child was ultimately able to spend overnight time with him.
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
The wife relies upon two offers of settlement made to the husband. The wife’s offer of 23 February 2022 inter alia effectively required a further six months of supervision and were not uniformly more generous than the Court’s final parenting orders.
As to the wife’s offer of 10 March 2023, it was an offer made both in relation to the property and parenting aspects of the proceedings. Towards the conclusion of the offer, it was stated by the wife’s solicitors, “The above offer is open for acceptance by your client until 4 PM on Wednesday, 15 March 2023 at which time it will be withdrawn.” The offer did not expressly state that the husband could accept, for example, the property offer without accepting the parenting offer. In this context it was submitted by the wife that it was open to the husband to make a written counter offer accepting, for example, the property offer without accepting the parenting offer however, in the view of the Court, it is quite speculative as to whether the wife’s side would have viewed their initial offer as severable and, on this example, have accepted a counter offer by the husband to only accept the property offer.
Accordingly, noting the terms of the wife’s side’s combined property and parenting offer, whilst the property offer was more favourable to the husband compared to the Court’s final property orders by some $35,158, the parenting offer was not more uniformly favourable to the husband when compared to the Court’s final parenting orders. For example, the parenting offer provided for overnight time between the child and the husband to effectively commence after seven months, whereas the final parenting Orders in this regard provided for overnight time to effectively commence after 24 weeks (about 5.6 months), and, the parenting offer was less favourable than the final parenting orders in relation to time between the child and the husband in the NSW Christmas school holiday period commencing December 2024.
Taking into account all the above discussed matters, it will not be just that the husband pay the wife’s costs as sought. The wife’s costs Application will be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 30 October 2023
0