Daniels and Daniels (No 2)

[2009] FamCA 1338

FAMILY COURT OF AUSTRALIA

DANIELS & DANIELS (NO. 2) [2009] FamCA 1338

FAMILY LAW – COSTS

APPLICANT: Ms Daniels

RESPONDENT: Mr Daniels

FILE NUMBER: MLF 7796 of 2000

DATE DELIVERED: 15 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cunningham

SOLICITOR FOR THE APPLICANT: Pearce Webster Dugdales

COUNSEL FOR THE RESPONDENT: Mr Bradshaw

SOLICITOR FOR THE RESPONDENT: Tolhurst Druce & Emmerson

Orders

1. The husband shall pay the sum of $10,000 towards the wife’s costs from his share of the moneys standing to their joint credit in the Commonwealth Bank Account referred to in paragraph 1 of my orders of 25 November 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7796 of 2000

MS DANIELS

Applicant

And

MR DANIELS

Respondent

REASONS FOR JUDGMENT

1. I gave reasons for judgment in this case on 25 November 2009.  The wife has today sought costs. 

2. Costs are governed by s 117 of the Family Law Act. They are a discretionary matter. Section 117(2)(a) sets out the matters to which the court should have regard.

3. Mr Cunningham for the wife has put things very succinctly, relying mainly on the provision as to the husband being wholly unsuccessful in the proceedings.  Mr Bradshaw has also put things succinctly, relying mainly on the provision in relation to the parties' financial circumstances.

4. This was an unusual case in the sense that the parties have been litigating for nine years, primarily in the Supreme Court, whereby the wife succeeded in an action in equity and received an award by which she purchased a home.  This case revolved around the husband's application for a share of that home.  There were other minor assets that were divided.  Mr Cunningham’s submission for the wife that the husband was, save for really incidental matters, wholly unsuccessful, is a reasonable summary.  The fact in issue was very much how to determine what should happen with the house and on any view the husband was unsuccessful about that.

5. On the other hand, Mr Bradshaw's submission that I need to take into account the financial circumstances of the parties is also important.  Certainly the wife now has this asset of the home, although she has a mortgage and low part-time employment earnings.  The husband earns about $80,000.  He pays child support for the parties' child who lives with the wife and is otherwise supported by her, and he has remarried and has the support of his current wife and two young children.  He has no assets, it was submitted, to meet any costs order, but he does in fact have at least $16,000 that was obtained by way of the property order.

6. It is submitted on behalf of the wife that the evidence was clear that the husband's parents had paid the Supreme Court costs order, and some Family Court costs, and I should take that into account.  Mr Cunningham also submits that the husband does earn twice the wife's earnings and that she also has a mortgage to support.

7. This is an interesting case.  It was described by Mr Bradshaw as an “unusual” case and not without merit.  I agree it was an unusual case.  I am not saying that it was brought frivolously by the husband, but I was satisfied that it was without merit for the reasons that I have given in my judgment. I do not propose reiterating them here. 

8. It is a case that warrants some costs in the wife's favour.  After the agony and expense of protracted litigation it would have been a far preferable course for these parties, but in particular the wife, if this case had not proceeded again in this court in the circumstances that I have set out. 

9. That said, taking into account the parties’ financial circumstances, in the exercise of my discretion I propose that the husband pay only part of the wife’s costs.  Mr Cunningham says that her costs are in the region of $20,000 to $25,000.  I propose ordering that he pay $10,000 towards her costs, being satisfied that he is able to meet that from the moneys he has received, and that it is a fair contribution to her costs in all the circumstances. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  15 December 2009