Duffy & Duffy (No 2)
[2023] FedCFamC1F 411
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Duffy & Duffy (No 2) [2023] FedCFamC1F 411
File number(s): BRC 10327 of 2019 Judgment of: BAUMANN J Date of judgment: 25 May 2023 Catchwords: FAMILY LAW – Costs – Circumstances justifying costs order – Where the husband made offers to settle the proceedings on two occasions which were not accepted by the wife – fixed costs awarded Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Duffy & Duffy [2022] FedCFamC1F 635
Kohan & Kohan (1993) FLC 92-340
Division: Division 1 First Instance Number of paragraphs: 10 Date of last submission/s: 12 September 2022 Date of hearing: On the papers in chambers Place: Brisbane Counsel for the Applicant: Mr J Moxon Solicitor for the Applicant: Hopgood Ganim Lawyers Solicitor for the Respondent: Litigant in person ORDERS
BRC 10327 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DUFFY
Applicant
AND: MS DUFFY
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
25 May 2023
THE COURT ORDERS:
1.That the wife make a contribution to the husband’s costs fixed in the sum of $32,000, within thirty (30) days of the date of this Order.
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 the pseudonym Duffy & Duffy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J
On 29 August 2022, the Court published Reasons in these proceedings for the property alteration Orders pronounced that day (see Duffy & Duffy [2022] FedCFamC1F 635) (“previous Reasons for Judgment”).
The effect of the Orders made were that the wife received 21.5% of the pool of assets (as identified at paragraph 42 of the said Reasons) and lump sum maintenance of $20,800 which meant that the wife retained the properties in Country E and the husband was required to pay her $115,500.
On 12 September 2022, the husband filed an affidavit by his solicitor Mr Fraser Bax and written submissions in accordance with the process to be undertaken, if he wished to pursue an application for costs (Order 16). The wife has filed no submissions or material in response, and the determination of the application has been conducted on the papers.
The principles to be applied when the Court has to consider an application for costs are not controversial. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) prescribes the general rule is for each party to bear their own costs of the proceedings, however if the Court is satisfied that circumstances exist to justify an order for costs, then after consideration of the relevant factors set out in s 117(2A) of the Act, the Court may make an order as to costs as it deems to be just.
In some circumstances, the Court is empowered to make an order for costs on an indemnity basis, and the Court is entitled to order costs be assessed or fixed. As a result, and having considered the affidavit of Mr Bax and the written submissions, the Court makes the following findings:
(a)The husband is in a financially superior position to the wife, however as the previous Reasons for Judgment reflect, that position arose from his contributions to the creation of the interests and assets available for alteration under s 79. The wife, who represented herself in the proceedings, retains two properties in Country E and was to receive a cash adjustment. Neither party had the benefit of assistance from Legal Aid;
(b)The husband’s submissions point to how the proceedings were prolonged and made more difficult by the wife’s conduct during the proceedings. In my view, her inability to grasp the need to engage in the proceedings and meet the obligations under Court Orders and directions were not a result of wilful disobedience but must be seen through the prism of the wife being:
(i)unable to accept that her marriage was over, and that the husband had every right to re-partner and with that new partner to cohabitate in the home in Queensland, originally purchased as a retirement home for the parties;
(ii)the communication difficulties encountered where the wife, who at all times resided in a rural location in Country E, was not consistently able to rely on electronic communications for Court emails; and
(iii)although clearly an educated and articulate person, the wife was both unrepresented and a citizen of another Country totally unfamiliar with the Court system and procedures under the Act as Rules of Court– including the substantive law. I accept, however, that the husband, who had the benefit of a specialist firm of solicitors and, at trial, Counsel to advise him, did likely incur further costs because of the number of events which the Court ordered take place. I also take into account that a trial in Australia was only practically possible because the husband complied with Orders made that facilitated and effectively funded the wife’s personal entry into Australia and attendance at the final hearing.
(c)Section 117(2A)(f) of the Act requires the Court to consider “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”. In that regard, I find that the husband made the following offers to the wife:
(i)On 17 September 2021, he offered to settle the proceedings on the same terms as ultimately made by the Court, but with payment to the wife of 550,000 Country E currency (equivalent to AUD$214,390). This offer was not accepted and expired on 4 October 2021; and
(ii)On 4 July 2022, he offered to settle the proceedings on the same terms as ultimately made by the Court, but with a payment to the wife of AUD$150,000. This offer was not accepted and expired on 11 July 2022.
CONCLUSION
I am satisfied that the circumstances in this case justify an order for costs payable by the wife – at least because she imprudently failed to accept either of the offers to settle made by the husband which would have resulted in a better outcome for her. It matters little that the wife’s decision not to accept the offers means the husband, in real terms, will expend with costs and the award ordered of $115,500 less than his original offer of AUD$214,390.
QUANTUM
The husband says, through the evidence of Mr Box, that costs incurred by him from 17 September 2021 to the final orders amounted to $92,277.46 plus costs of the application for costs. The estimate of party and party costs is $46,000.
I am not satisfied that the circumstances of this case justify an order for indemnity costs (see Kohan & Kohan (1993) FLC 92-340).
To enable the parties to be relieved of the costs and burden of having costs assessed, I propose to fix costs.
I make an order that the wife make a contribution to the husband’s costs fixed in the sum of $32,000 within 30 days from this order.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 25 May 2023
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