FRANCISZEK & WIKERS

[2015] FamCA 457

FAMILY COURT OF AUSTRALIA

FRANCISZEK & WIKERS [2015] FamCA 457

FAMILY LAW – PROPERTY – APPLICATION IN A CASE – costs – where party wholly unsuccessful – where application for costs nonetheless dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules r 19.18

APPLICANT: Mr Franciszek

RESPONDENT: Ms Wikers

FILE NUMBER: TVC 555 of 2012

DATE DELIVERED: 18 June 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: In Chambers 8 April 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

SOLICITORS FOR THE RESPONDENT: McNamara & Associates

Orders

1. The wife’s Application in a Case filed 4 December 2014 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 555/2012

Mr Franciszek

Applicant

And

Ms Wikers

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 4 November 2014 I dismissed the husband’s Initiating Application filed 25 May 2012.  That application had sought that the wife pay him the sum of $5,000.00 together with interest that had accrued since it was ordered by Coleman J to be paid in a judgment given on 26 September 2001.  The total amount was due was said to be in the order of $10,500.00. 

2. As explained in the reasons which I gave for dismissing the husband’s application, I was persuaded, particularly given the lapse of time, that it was inequitable to now enforce the judgment of Coleman J.

3. By application made 4 December 2014, the wife now seeks that the husband pay her costs in the sum of $4,240.00.  The husband opposes such an order.

RELEVANT STATUTORY PROVISIONS

1. The starting point for a consideration of these applications is s117 of the Family Law Act which relevantly provides as follows:

   117(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118 each party to proceedings under this Act shall bear his or her own costs.

   117(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   117(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)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; and

   (g)such other matters as the court considers relevant.

   …

2. Rule 19.18 deals with the method of calculation of costs in the following terms:

   19.18(1) The court may order that a party is entitled to costs:

   (a)of a specific amount;

   (b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount assessed in accordance with Schedule 3.

   Example

   For paragraph (1)(c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.

   19.18(2) If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.

   19.18(3) In making an order under subrule (1), the court may consider:

   (a)      the importance, complexity or difficulty of the issues;

   (b)      the reasonableness of each party’s behaviour in the case;

   (c)      the rates ordinarily payable to lawyers in comparable cases;

   (d)      whether a lawyer’s conduct has been improper or unreasonable;

   (e)the time properly spent on the  case, or in complying with pre-action procedures; and

   (f)expenses properly paid or payable.

THE WIFE’S APPLICATION

Overview

1. I shall consider each of the s 117(2A) factors individually, before considering whether or not I am satisfied that there are circumstances justifying an order for costs in this case.

Financial circumstances of the parties

1. Both parties filed financial statements in the costs application.  From those the following comparisons can be made.  The wife’s average weekly income is $612.00; the husband’s is $565.00.  The value of the property owned by the wife is $8,375.00; the husband has property said to be worth $105,446.00.  The wife has no liabilities, whereas the husband asserts that he has liabilities of $482,614.00.  The wife has $4,678.00 worth of superannuation, whereas the husband has $55,472.00 worth of superannuation.

2. The husband’s liabilities are principally mortgages, however they include a tax debt said to be $84,000.00 (although I note from material accompanying the husband’s affidavit it appears as though in fact the liability may attach to a company with which he is presumably associated).

3. Both parties income is largely derived from Social Security payments, save that the husband has a property which he rents out from time to time from which he can derive an income.  The wife has not worked for many years; the husband says that he is now unable to obtain employment within his profession (a geologist) because of an injury which he received in a motor vehicle accident.

4. It can therefore be seen that the financial circumstances of each of the parties to the proceedings are poor.  That said I do note that the husband may have a claim for damages arising out of his motor vehicle accident, as it appears as though on 15 December 2014 he withdrew $5,000.00 to pay to his solicitors on account of a barrister’s costs associated with that accident.  Moreover the fact that he was able to fund that by cash withdrawal from his bank account is of some significance.  That said, as at 31 March 2015, his bank account balance was in the sum of $446.02.

Legal Aid

1. It appears as though neither party were in receipt of Legal Aid funding.

Conduct of the parties

1. The wife asserts that the determination of the husband’s enforcement application required 14 court events, and says that “on many of the court mentions [the husband] was either unprepared, or did not understand the process of the litigation which meant the matter was adjourned for his benefit on a number of occasions.  There were two dates we had to abandon the final hearing because [the husband] was so disorganised.”  The husband concedes that “this was only true on two occasions at the start of proceedings when I had no solicitor advising me in doing my affidavits and submissions.”

2. I am not satisfied that the way in which the husband conducted the proceedings was unreasonable or dilatory.  Whilst it is true that on occasions he suffered the sorts of disadvantages which generally affect self-represented litigants in unusual applications such as he was pressing, which may therefore have extended the longevity of the matter, he was generally amenable to judicial explanation and otherwise issue focussed.

Proceedings necessitated by non-compliance

1. The husband’s application was necessitated wholly by the failure of the wife to comply with the orders of Coleman J made 26 September 2001.  I was satisfied that the wife was served with the relevant orders.  Even if it be the case that she had forgotten being served with them, that is no excuse.  The husband gave evidence that he, from time to time, raised the matter with the wife, whose invariable response was that she had no money to satisfy the debt.  Enforcement in those circumstances was the only option available to the husband.

Whether any party has been wholly unsuccessful

1. Whilst it is correct to say that the husband was unsuccessful in persuading me to enforce the payment of the sum due under the orders of Coleman J, it ultimately was a matter of discretion.  The husband was not without good argument as to why the enforcement should be ordered, as I explained at paragraph 15 of my reasons.  The fact that ultimately the exercise of the discretion weighed in favour of the wife does not mean that the husband’s arguments were unmeritorious, or his claim fanciful.

Offers to settle

1. It appears as though the parties had been negotiating, not with a view to a cash payment by the wife to the husband, but by reference to the wife foregoing child support payments for a period of time. 

Evaluation

1. None of the above matters individually justifies an order for costs. I am not persuaded that, even taken collectively, they justify a departure from the ordinary position as established under s 117(1) of the Family Law Act.   

2. The wife’s application filed 4 December 2014 will be dismissed.   

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 June 2015.

Associate: 

Date:  18 June 2015