Cording & Oster (No 2)

[2010] FamCA 570

FAMILY COURT OF AUSTRALIA

CORDING & OSTER (NO. 2) [2010] FamCA 570

FAMILY LAW – COSTS –  Complex arguments about financial agreement – Although applicant wholly unsuccessful, there were arguable issues – No justification for an order for costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Cording

RESPONDENT: Mr Oster

FILE NUMBER: MLC 9248 of 2000

DATE DELIVERED: 9 JULY 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT:	STIDSTON WARREN LAWYERS
SOLICITOR FOR THE RESPONDENT:	RICHARD CALLEY

Orders

1. That the application of the respondent filed by written submission on 15 June 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cording & Oster is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9248  of 2000

MS CORDING

Applicant

And

MR OSTER

Respondent

REASONS FOR COSTS JUDGMENT

1. The respondent seeks costs against the applicant arising out of a hearing in which the applicant sought to set aside a financial agreement which I found to be binding. The applicant was therefore wholly unsuccessful but opposes the making of any orders.

2. In this case, I do not propose to make an order for costs against the applicant for the reasons that follow.

3. In the substantive application, on the various arguments, I ruled:

   (a)The agreement was not void for uncertainty;

   (b)The lack of particularity did not constitute a failure by the respondent to comply with his obligation of disclosure;

   (c)The agreement did not oust the jurisdiction of the Court under Part VIIIAB of the Act because it was made under Part IX of the Property Law Act (Vic). I found the agreement to be a financial agreement under the Family Law Act;

   (d)The agreement was not binding despite the assertion by the applicant that she had not been provided with independent legal advice;

   (e)The agreement was a financial agreement under Part VIIIAB of the Act, despite the assertion that it did not comply with s 90UJ(1)(b) of the Act. It had been asserted that the section required that “each spouse party was provided with independent legal advice” and the reference in the recital to “each party” was sufficiently clear to mean the parties;

   (f)There was no basis to reject the validity of the agreement on the ground that it could be argued that the outcome would not be unjust and inequitable if the agreement were not binding;

   (g)There was no basis to find that the jurisdiction of the Court was not ousted in relation to property acquired by the parties jointly “prior to the making of the agreement”.

4. When the case began, it was asserted by the applicant that the agreement was of no effect because no separation declaration had been made under s 90UF.  That problem went no further because the necessary document was signed to rectify the situation.

5. In my view, although the applicant lost virtually all of the issues most of the points were open and arguable having regard to the state of the jurisprudence in this Court. The difficulty was with the state of the evidence.

6. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party should pay their own costs unless there are circumstances which justify the Court departing from that principle. If that justification can be shown, the Court must consider the matters set out in s 117(2A).

7. There can be little doubt that the applicant has been wholly unsuccessful and the respondent successful but that alone is not the basis for departing from the principle set out in s 117. The party seeking costs must show that there is some circumstance that justifies the order.

8. In deciding whether and if so what, order for costs to be made, s 117(2A) requires the Court to consider a number of matters but before examining them, the party seeking costs must show some particular reason why the circumstances justify a costs order being made. It is accepted that the s 117(2A) factors themselves could lead to a court being justified in making a costs order. They do not in this case.

9. In his submissions, the respondent argued that the applicant had little property but had the support of her family. It was submitted that financial disparity was not an appropriate reason for the applicant to escape an order for costs where the respondent had been successful.

10. The applicant’s submission was really along the lines that there was an arguable cause. In this case, I agree.

11. In my view, there is nothing unusually about the case that would give rise to a justification for an order for costs. Accordingly I do not propose to turn to the matters in s 117(2A).

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  9 July 2010