Dylan and Dylan (Costs)

[2008] FamCA 55

FAMILY COURT OF AUSTRALIA

DYLAN & DYLAN (COSTS) [2008] FamCA 55

FAMILY LAW – Costs

APPLICANT: Mr Dylan

RESPONDENT: Mrs Dylan

FILE NUMBER: (P)BRF 2433 of 2004

DATE DELIVERED: 11^th February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carmody J

HEARING DATE: 15, 16 and 17 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Barry & Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Habermann & Associates

Orders

1. That there be no order as to costs.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Dylan & Dylan Costs.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: (P)BRF2433/2004

Mr Dylan

Applicant

And

Mrs Dylan

Respondent

REASONS FOR JUDGMENT

1. This is the father’s defended application for the costs of a combined parenting and property proceeding.

2. He contends that there are circumstances justifying a departure from the general rule that each party bears their own costs in parenting proceedings.

3. The husband relies on the mother’s overly litigious approach in conducting and presenting her case by, for example, pursuing an unsubstantiated and merit less child abuse allegation until late November 2005 which had a negative impact on the father’s relationship with his daughter.  He claims that the wife’s financial statement indicates an ability to pay and that she should be ordered to do so.  Moreover, he says that the wife’s recovery of only $15, 000 more under the court award than the amount he offered in 2005 is a relevant feature in circumstances where legal fees in excess of $200, 000 were incurred in the meantime.

4. A final offer in April 2007 with respect to property would have seen the wife recover an additional $35, 000.  An alternative proposal made at the same time in relation to the children ultimately succeeded.  This means, he says, that she comprehensively if not totally failed.

5. The wife’s first ground for opposing the making of a costs order is an elliptical one. It seems to be a challenge to jurisdiction based on the failure of the s 79 order to deal with the question of costs sought in both parties’ initiating documents. I reject this objection and the related but distinct functus officio and res judicata arguments.

6. There is no time limitation for the hearing determining of an application for costs. Rule 19.3 expressly allows the Court to decide the question of costs after the making of final orders. The applicant is entitled to have it considered on its merits.  That has not been done before.  There is no legal impediment to this being done now.   Indeed the very purpose of rule 19.3 is to allow the parties to make an informed decision about whether or not to apply for costs in light of the reasons for judgment in the principal action. It also gives the parties and the court time to formulate and consider written submissions on all the relevant s 117(2A) matters. No decision as to costs could rightly be made any earlier consistently with the relevant concept of procedural fairness because neither party was heard on their respective applications before the filing of the written submissions.

7. Otherwise the wife responds by pointing out that the husband received significantly more in money terms as a result of the judgment than she did and after discharging accrued and subsequent debts her share of the proceeds of sale will be minimal.

8. In addition she seeks indemnity costs thrown away by the husband’s alleged failure to provide timely and appropriate documentation to the valuers and in accordance with the court orders.  In a 44 page affidavit the wife’s lawyer contends, among many other things, that the husband obfuscated the valuation process by continuing to fail or refusing to provide relevant documentation contrary to court orders which resulted in him having to bear the resulting costs.

9. Neither party was wholly unsuccessful in the proceedings but I think it is fair to say that the father did considerably better than the mother in both parenting and property claims.

10. However, I don’t think it can be said that in the circumstances the mother’s property or parenting proposals were unreasonable or baseless. The parenting case was a finely balanced one.  Her stance was supported by the Independent Children’s Lawyer and all the court appointed experts.  It also appeared to accord with the children’s own (albeit jaundiced) views. The husband’s “success” in the property proceedings was due largely to the degree of significance I attached to his initial contribution which is now under appeal.  This is always a very difficult discretionary issue. The judicial approach to the question of sharing sole contributions of ‘non matrimonial’ property after the collapse of a medium term marriage like this one, is not uniform and very hard to predict in pre-trial stages.  The wife’s property claim failed but was not at all unreasonable.

11. Settlement negotiations must be seen in the context of the case. The husband’s offer was made at a time when the sex abuse allegations remained unresolved and the wife was largely unfamiliar with the financial position of the parties. The valuation of the pool was also still outstanding largely, I find, because of the husband’s failure to cooperate. For these reasons I do not attach substantial weight to the offer.

12. Whatever entitlement the husband might have had to costs is counterbalanced by the wife’s financial circumstances and his own conduct in relation to the property valuations.

13. I think the appropriate discretionary order in this case is to make no order as to costs either those thrown away by the mother because of the husband’s failure to comply with orders or the husband’s cost of the substantive proceedings.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carmody

Associate: 

Date:  11^th February 2008