Eracken and Eracken

[2019] FamCA 889

FAMILY COURT OF AUSTRALIA

ERACKEN & ERACKEN [2019] FamCA 889

FAMILY LAW – COSTS - refused

Family Law Act 1975 (Cth) s 117(2A)(c)

APPLICANT: Ms Eracken

RESPONDENT: Mr Eracken

FILE NUMBER: MLC 10141 of 2016

DATE DELIVERED: 26 November 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 26 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Staindl

SOLICITOR FOR THE APPLICANT: Clancy and Triado

COUNSEL FOR THE RESPONDENT: Mr McGregor

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The Wife's application for the costs of today are refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: MLC 10141 of 2016

Ms Eracken

Applicant

And

Mr Eracken

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Wife makes application that her costs of today be paid by the Husband. 

2. The context of that application is the parties’ are awaiting the delivery of judgment following proceedings conducted at the end of last year. 

3. The wife, by her Application in a Case, sought the payment of a sum of $200,000 from proceeds that are currently held by her solicitors.  Those proceeds are the subject of Consent Orders made on a final basis between the parties that would see those proceeds being payable to her.  However, by virtue of the current proceedings which seek the setting aside of the previous orders they are currently held in trust and restrained. 

4. The Wife's Application in a Case has been resolved today by consent, but not in the terms that were sought by her.  Rather there has been consent to a payment of $70,000 being made to her from that sum currently held in trust.  That consent has been given in the context of my indication to the parties that the handing down of the final determination in this matter is imminent.

5. In pursuing costs the Wife relies upon the factor contained at s 117(2A)(c) of the Family Law Act 1975 which deals with the conduct of the parties in relation to the proceedings.  She points to the fact that on 3 October, which was in advance of her filing her Application in a Case on 31 October 2019, she wrote to the Husband seeking the release of $70,000, a matter to which he has now consented.  His response to her was to refuse such release unless the release of funds was mutual.  On giving that refusal the Wife's solicitors wrote to the Husband seeking agreement that correspondence be sent to my Chambers to ascertain whether or not the handing down of the judgment was imminent.  The Husband agreed to that course of action and says that he heard nothing further until proceedings were filed by the Wife on 31 October 2019.  Accordingly, each of the parties points to some conduct on the part of the other party. 

6. The Wife points that conduct is justifying a costs award while the Husband points to that conduct as undermining such justification. 

7. It may be observed that the application made by the Wife has not been met.  That is, she sought the payment of $200,000 and it was an agreement to pay her $70,000 which has resolved that application.  It may also be observed that her initial proposal to the Husband was simply for that amount to be paid, a matter which he subsequently declined.  However, it may also be observed that the proceedings were commenced in the face of an apparent agreement to firstly approach Chambers to see whether or not any proceedings were necessitated. 

8. On balance those combined circumstances are insufficient to displace the starting position that each party will bear their own costs in proceedings under the Act as set out at s 117. 

9. Accordingly, the Wife's application for the costs of today are refused.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 26 November 2019.

Associate: 

Date:  27 November 2019