Danilov & Wynn (No. 2)

[2021] FamCA 384

FAMILY COURT OF AUSTRALIA

Danilov & Wynn (No. 2) [2021] FamCA 384

File number(s):	BRC 15350 of 2019
Judgment of:	BAUMANN J
Date of judgment:	9 June 2021
Catchwords:	FAMILY LAW – COSTS – Application for costs sought by the wife against the husband – where the husband was wholly unsuccessful in his Application seeking to restrain the wife’s solicitor from acting – Order made for the husband to pay a contribution to the wife’s costs fixed in the sum of $4,000.
Legislation:	Family Law Act 1975 (Cth) s 117
Number of paragraphs:	6
Date of last submission/s:	30 December 2020
Date of hearing:	On the papers in chambers
Place:	Brisbane

ORDERS

BRC 15350 of 2019
BETWEEN:	MS DANILOV Applicant
AND:	MR WYNN Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	9 JUNE 2021

THE COURT ORDERS:

1.That within ninety (90) days of the date of this Order the husband pay to the wife a contribution to her costs fixed in the sum of $4,000.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Danilov & Wynn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

1. On 17 September 2020 the Court delivered Reasons in respect of its Order that the Application made by the husband seeking to restrain Mr Phillip Cooke from acting on behalf of the wife in these proceedings be dismissed.

2. Arising from that decision, the wife, Ms Danilov, seeks an Order for costs in the amount of $4,000 plus GST.

   RELEVANT PRINCIPLES

3. The general rule in s 117(1) of the Family Law Act 1975 (Cth) is that each party shall pay their own costs of the proceedings, however, if the Court is satisfied, following a consideration of the factors set out in s 117(2A), that circumstances exist which justify an order for costs, then such order as is proper may be made.

   SHOULD AN ORDER FOR COSTS BE MADE?

4. The Applicant filed written submissions on 1 October 2020 and the Respondent filed written submissions on 30 December 2020. Having regard to those submissions, I make the following findings in respect of the s 117(2A) factors, namely:

   (a)the wife submits that “payment of significant legal costs to defend the [h]usband’s Application would constitute an unreasonable and … unnecessary financial burden upon [her]”. In respect of her financial circumstances, she says that she is the full-time carer for three young children for which the husband does not pay child support and, until recently, she relied on a sole parenting pension, supplementary payments and ad-hoc financial assistance from her family. The husband submits that the wife pays no rent as she lives with her mother and step-father, receives a weekly pension in the amount of $1,000 and receives rental income from two matrimonial properties. In respect of his financial circumstances, the husband says he receives $1,300 per week before tax by way of income protection and gained $62,500 for the sale of his business which, he says, has been used to assist in meeting living costs, legal costs and to pay debts. The husband also submits that he pays approximately $640 per month in supervisory costs for time with his children and that he contributes to the costs associated with raising his children through things such as clothing and learning material, as well as recently obtaining private health insurance due to his daughter’s diagnosis of chronic recurrent multifocal osteomyelitis.  I find, on the evidence, that neither party is in a strong financial position;

   (b)Neither party was legally aided;

   (c)I do not regard the conduct of either the husband, the wife or Mr Cooke shapes the discretion as to costs, save to note that the husband (who was legally represented on his application) ought to have been aware that in seeking to restrain the wife’s solicitor continuing to act for her, he would be required to overcome the longstanding principle that litigants are generally entitled to retain the advocate of their choice;

   (d)The husband’s application was wholly unsuccessful and although in the husband’s written submissions filed 30 December 2020 he implies that further evidence available to him may have altered the result, that is irrelevant.  The decision made has not been the subject of Appeal;

   (e)In circumstances where, at all times once raised and pleaded by the husband, the wife opposed his application to restrain Mr Cooke from acting for her, no offers were made.  It was a matter that required judicial determination;

   (f)I take into account that, as my earlier Reasons record, some interaction between Mr Cooke and the husband occurred.  I also accept that the husband, whilst engaged essentially in a family law dispute over property and parenting issues, has made allegations against the wife’s father, and the wife’s father and mother have been involved in some commercial transactions involving he parties during their marriage.  It seems likely that Mr Cooke’s long association as a solicitor for the wife’s father and his businesses, was in part a significant catalyst for the husband’s application to restrain Mr Cooke;

   (g)in respect of other relevant factors, the wife submits that the “overarching principle in such matters is that only in very exceptional circumstances will a litigant be deprived of the [s]olicitor of his or her choice and that it is in the public interest for a litigant to have that choice”.

   CONCLUSION

5. The husband was unsuccessful in his application and caused the wife to incur costs to defend her solicitor Mr Cooke as her solicitor in the family law proceedings.  Circumstances as set out above justify an order for costs.

6. I find the claim of costs in the fixed sum of $4,000 as reasonable and will order that sum be paid to the wife, as a contribution to her costs, within 90 days.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:

Dated:       9 June 2021