Fryer and Fryer (No. 3)

[2007] FamCA 572

FAMILY COURT OF AUSTRALIA

FRYER & FRYER (NO. 3) [2007] FamCA 572

FAMILY LAW - COSTS – Application for costs by wife on orders made in her favour for a Warrant for Possession of property – Husband entirely unsuccessful in the proceedings.

Family Law Act 1975 (as amended)
Family Law Rules 2004

APPLICANT: Mrs Fryer

RESPONDENT: Mr Fryer

FILE NUMBER: MLF 1388 of 2005

DATE DELIVERED: 21 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT (NO. 3) OF: Guest J

HEARING DATE: 21 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Johns

SOLICITOR FOR THE APPLICANT: Taussig Cherrie & Associates

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That the husband do pay the wife’s costs of and incidental to the proceedings this day fixed in the sum of $3,063.40 (“the said sum”) AND THAT the said sum be paid by the husband to the wife’s solicitors within 28 days of this date.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1388  of 2005

Mrs Fryer

Applicant

And

Mr Fryer

Respondent

REASONS FOR JUDGMENT

1. At the conclusion of my short judgment on the substantive Form 2 Application brought by the wife which was successful, Ms Johns sought an order for costs in the sum of $3500.  Given that the husband is a litigant in person I sought a finer detailed exposition of the costs sought.  That has been helpfully attended to by Ms Johns. 

2. In summary, she sought counsel's fees in the sum of $1400, which I do not regard as unreasonable at all in the circumstances, and then addressed me generally as to costings under Schedule 3 of the Family Law Rules 2004 dealing with drafting of the application and preparation of documents, together with time in court of seven hours totaling $1347.50. Ms Johns then detailed to me correspondence that passed between the wife's solicitors, the husband's solicitors, and the husband (being six letters in all) costed under the schedule at $113.40. Ms Johns further detailed telephone attendances upon the husband and the husband's former solicitors, photocopy expenses and the like, estimated at one hour, costed under the Rules at $192.50. I assess costs sought at $3063.40 and I propose to order costs in that sum.

3. Section 117 of the Family Law Act 1975 provides that, subject to s 117(2) each party to the proceedings under the Act shall bear their own costs. Subsection (2) provides in summary, that if the court is of the opinion that there are circumstances that justify it in so doing, the court may, subject to subsection (2A), (4) and (5) and the applicable rules of court, make such order as to costs as may be considered just.

4. Section 117(2A) of the Act sets out the matters that a court is to take into account in regard to such an application, which includes the financial circumstances of the parties. Significantly, it includes whether a party to the proceedings has been wholly unsuccessful. The proceedings before me are for the enforcement of an order made by the court. The husband has been wholly unsuccessful and for reasons explained in my two earlier judgments made this day.

5. The issue of cost is an entirely discretionary one and, in my view, there are justifying circumstances, given the whole of the background which I have detailed in my extempore judgments delivered, firstly, as to the application for an adjournment and, secondly, as to the substantive application for a Warrant for Possession.  I propose to make an order for costs in the sum of $3063.40.

6. Ms Johns has sought the order for costs to be paid within 14 days.  The husband in response said that he was unemployed and did not have money to support such an order.  However, he advanced no particulars as to his financial circumstances whatsoever.  In the circumstances, doing the best I can, I will order that the said costs be paid within 28 days of this date.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  13 June 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FRYER & FRYER