Gade and Jabbar (No.16)

[2018] FCCA 2195

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.16) [2018] FCCA 2195

Catchwords:
FAMILY LAW – Property – wife to pay the husband’s costs of and incidental to an interim application concerning the wife’s failure to make mortgage payments.

Legislation:

Family Law Act 1975 (Cth) s.117

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 19 March 2018

Date of Last Submission: 19 March 2018

Delivered at: Newcastle

Delivered on: 19 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Weightman

Solicitors for the Applicant: NLS Law

The Respondent: In person

ORDERS

1. The respondent shall pay the amount of $5,852.07 to Bank 1 by 5.00pm on 26 March 2018 and the respondent shall provide to the applicants’ solicitor evidence of payment by no later than 9.00am on 27 March 2018.

2. If the respondent fails to pay the amount required by Order 1 then orders will forthwith be made in terms of Orders 2, 3 and 4 of the orders sought by the applicant in his application in a case filed on 24 January 2018.

3. The existing order requiring the respondent to pay the mortgage payments in respect of the Property A property as they fall due continues to be in force until the final decision is delivered.

4. The respondent shall pay the applicant’s costs of and incidental to the application in a case filed on 24 January 2018 fixed in the sum of $5,324.56 NOTING THAT the timeframe for which those costs are to be paid will be determined as part of the final decision concerning the property matter.

5. Further consideration of the orders sought in the respondent’s response to the application in a case filed on 24 January 2018 is adjourned to delivery of the reserved decision.

6. The applicant’s legal representative is granted liberty to apply to relist the matter should they consider it necessary to do so.

THE COURT NOTES THAT:

(A)The court will take into account in determining the property matter the evidence given today about the payment of rates by the applicant in respect of the Property A property NOTING THAT the respondent is of the view that she was not responsible for the payment of the rates and this issue will also be considered in the final decision.

(B) The court has informed the parties that it will use its best endeavours to ensure that a decision is handed down in relation to the parenting and property matter by 13 April 2018.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.16) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I have to determine a costs application brought by the husband in respect of his application in a case filed on 24 January 2018.

3. S. 117 of the Family Law Act says that as a general principle in family law matters each party is to bear their own costs. Pursuant to s. 117(2) however the Court can make a costs order if it considers that circumstances justify it doing so and to determine whether it should make such an order it must have regard to the matters in s. 117(2A). I must have regard to all of those matters because the word “must” is included in s. 117(2).

4. The first of the matters is the financial circumstances of the parties. I am aware from previous proceedings in the matter that the husband is a high income earner. The wife is not currently it would appear earning an income, although there is some little uncertainty about that, but I will assume for the purposes of this costs application that she is not earning an income. The property pool that I am ultimately going to have to deal with is a fairly modest one so it might be that neither party ends up with a great deal of money out of that.

5. I must consider whether either party is in receipt of Legal Aid. Neither party is.

6. I must take into account the conduct of the parties in relation to the proceedings. In respect of this particular application some additional cost has been incurred today because the wife did not comply with a filing direction. Well I suppose in some ways it is not an additional cost. Counsel would have charged a half-day hearing fee even if we had finished earlier. What has occurred is an imposition on the Court’s time and resources and also an imposition on the time of the husband and the husband’s counsel but there is nothing about conduct which is going to affect the decision I make about the costs.

7. I must have regard to whether the proceedings have been necessitated by the failure of a party to comply with an order. In respect of the mortgage payments there is absolutely no doubt about that.

8. There is a dispute about the wife’s liability to pay the rates which I will have to determine as part of the final hearing but really that was a minor part of the time taken today and even if we had not had to deal with it, the half-day hearing fee would still have been required and the application would still have been required.

9. I must have regard to whether one party has been wholly unsuccessful. I cannot say that the husband has been wholly unsuccessful, in fact he has been successful in obtaining orders concerning the payment of the mortgage as he should have been.

10. In relation to the rates, what happens with that will be a matter for the final decision, but really that is a minor part of what we are here about.

11. I must have regard to whether there have been any offers of settlement. There have not been in this matter. Finally I can have regard to any other relevant matter.

12. In terms of what I am going to do overall with all those findings there is no doubt that the husband is in the stronger financial position of the two parties but that does not mean that a costs order should not be made.

13. Orders concerning the wife paying the mortgage have been in place for something like two years. There have been endless problems with her paying the mortgage. The matter is before me because she failed to pay it and in my view she should be required to pay costs. However that does not necessarily need to result in an immediate crushing burden on her because I can make an order that time for payment of the costs will be determined when the final decision is handed down. Depending on the outcome of the property matter an order can be made which picks up the fact that the wife has a liability to pay the costs.

14. The orders that I am going to make are that the wife pay the husband’s costs of and incidental to the application in a case filed on 24 January 2018 fixed in the sum of $5,324.56 with the time within which those costs are to be paid to be determined as part of my final decision in respect of the property matter.

15. A number of the matters contained in the wife’s amended response are simply a rehashing of requests about the children which have been brought before me repeatedly in the past. I am not going to do anything with those before the final decision is handed down. In regard to the orders sought about payment of bills, it is not appropriate that I deal with those on an interim basis and I am going to adjourn further consideration of the orders sought in the wife’s response. I have to give it a spot in case track so I think I will adjourn it until the day that decision is handed down and then I will deal further with it on the day that I hand down the decision.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:         14 August 2018