Dobbs & Dobbs (No. 2)

[2021] FamCA 432

FAMILY COURT OF AUSTRALIA

Dobbs & Dobbs (No. 2) [2021] FamCA 432

File number(s):	MLC 8793 of 2015
Judgment of:	MACMILLAN J
Date of judgment:	23 June 2021
Catchwords:	FAMILY LAW – COSTS – where the husband’s solicitor made an application for costs in a fixed sum – where the wife opposes there being an order for costs – where the husband’s case is that he has incurred unnecessary costs due to the “action or inaction” of the wife’s solicitor – where the genesis of the wife’s application was by way of enforcement of the final property orders – where the circumstances of the case do not justify the Court departing from the general rule that parties should bear their own costs – where the husband’s application for costs is dismissed.
Legislation:	Family Law Act 1975 (Cth) s 117
Number of paragraphs:	16
Date of hearing:	23 March 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Herbert
Solicitor for the Applicant:	Hone Legal
Solicitor for the Respondent:	Michael Benjamin And Associates

ORDERS

MLC 8793 of 2015
BETWEEN:	MS DOBBS Applicant
AND:	MR DOBBS Respondent

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	23 JUNE 2021

THE COURT ORDERS THAT:

1.The husband’s application for costs made in his Response to an Application in a Case filed 12 February 2021 be 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 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 Dobbs & Dobbs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MACMILLAN J

1. This matter was listed for hearing before me in the Judicial Duty List on 15 February 2021. The applicant Ms Dobbs (“the wife”) sought the removal of a caveat over the title to the property at B Street, Suburb C, Victoria (“Suburb C Property”), the joinder of the husband’s mother Ms Dobbs senior, who had lodged the caveat, and that the respondent Mr Dobbs (“the husband”) be declared a vexatious litigant and not be permitted to file any further applications without having obtained the Court’s permission.

2. This matter has had a long and protracted history before this Court including these and other  proceedings to enforce and give effect to the final orders made by Cronin J on 15 February 2018. Those orders included an order for the husband to transfer his interest in the Suburb C Property to the wife.

3. On 15 February 2021, after lengthy discussions, the parties consented to the following orders:

   1. The Applicant Wife forthwith attend to service of her Application in a Case filed 8 February 2021 upon Ms Dobbs senior, Mother of the Respondent Husband by registered post addressed to her at either:

   (a) S Street, G Town in the state of Victoria; or

   (b) PO BOX …, G Town Victoria.

   2. Failing the removal of the Caveat held by Ms Dobbs senior over the property situated at B Street, Suburb C Victoria 3104 within 14 days of the date of this order, the parties consent to Ms Dobbs senior being joined as a Respondent to these proceedings.

   3. That the Applicant Wife’s Application for joinder be adjourned for mention at 10.00 am on 16 March 2021.

   4. The costs of both parties of this day be reserved.

4. On 16 March 2021 counsel for the wife confirmed that the caveat lodged on the Suburb C Property had been removed and on that basis all that remained extant was her application for the husband to be declared a vexatious litigant. However, during the hearing counsel for the wife also referred to there being outstanding parenting proceedings commenced by the husband awaiting hearing in another judge’s docket. The husband did not agree that there were any outstanding proceedings leaving only the wife’s application that he be declared vexatious and two pending appeals to be determined.  The matter was adjourned to 23 March 2021 to allow the Court to ascertain whether or not there were extant parenting proceedings and the parties’ costs were reserved.

5. On 23 March 2021 I confirmed with the parties that there were no extant parenting proceedings but that since the primary basis for the wife’s allegation that the husband be declared as a vexatious litigant was because of the number of applications he had filed, including appeals, that application should be adjourned pending the determination of those appeals by the Full Court.

6. The solicitor for the husband thereafter sought an order that that the wife pay his client’s costs fixed in the sum of $5,175.56. The wife opposed the husband’s application for costs and both parties made oral submissions.

   BACKGROUND

7. The husband Mr Dobbs is 51 and is a legal practitioner engaged in private practice.

8. The wife Ms Dobbs is 46 and is employed as an educator.

9. The parties were married in 2007, separated in 2015 and divorced in 2016. There is one child of the marriage who is 12.

   LEGAL PRINCIPLES

10. Pursuant to s 117(1) of the Family Law Act 1975 (Cth) ("the Act") the general rule in this Court is that each party to proceedings pursuant to the Act shall bear his or her own costs of those proceedings. However if the court is satisfied that there are circumstances in the particular case which justify it doing so it can make such order as to costs as it considers just (s 117(2)). The matters the court must consider, although the list is not exhaustive, are set out in (s 117(2A)). No one matter the Court is required to consider prevails over any other and the relevance of the particular factors will depend upon the circumstances in each case.

    ARE THERE CIRCUMSTANCES JUSTIFYING A COSTS ORDER

11. The crux of the husband’s application was that he had incurred unnecessary costs due to the “action or inaction” of the wife’s solicitor. He submitted that orders were made by consent on 15 February 2021 for the removal of the caveat and that the caveat being subsequently removed on 25 February 2021, the wife’s solicitor should have completed a title search. That the wife’s solicitor not having done so  unnecessarily prolonged the proceedings and caused the  husband to incur the further cost of responding to the wife’s affidavits and three unnecessary court appearances.

12. In my view this ignores a number of relevant matters. Firstly the wife’s application was by way of enforcement of final property orders made almost 3 years earlier. Secondly that application was not limited to orders with respect to the removal of the caveat and the orders made by consent on 15 February 2021 included an order adjourning the wife’s application to join the husband’s mother for mention on 16 March 2021. The wife also sought an order that the husband be declared vexatious and this application is still outstanding. It follows that the matter would have remained listed even if the wife’s solicitor had completed a title search.

13. The submission that orders were made for the removal of the caveat is also not correct.  The orders were made on the basis that the husband’s mother, who was elderly would not be joined as a party to the proceedings until she had had the opportunity to remove the caveat.

14. Finally the husband’s case is directed against the wife’s solicitor and not the wife and yet the husband is seeking an order that the wife, not her solicitor, pay his costs.

15. Even if I were satisfied that the husband has incurred costs because of the ‘action or inaction” of the wife’s solicitor and although I cannot make findings as to what if any part the husband played in the caveat being lodged over the title to the Suburb C property, the genesis of the wife’s application was her application to give effect to the final property orders and there is some force in the wife’s submission that her application seeking to join the husband’s mother to the proceedings did ultimately lead to the caveat being withdrawn.

16. Although as submitted by the husband the wife has the capacity to meet an order for costs I am not satisfied that the circumstances of this case justify the Court departing from the general rule as to parties bearing their own costs. In these circumstances I propose to dismiss the husband’s application for costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan.

Associate:

Dated:       23 June 2021