Gardiner and Gardiner

[2010] FamCA 120

FAMILY COURT OF AUSTRALIA

GARDINER & GARDINER [2010] FamCA 120

FAMILY LAW – COSTS – application – consideration of the factors in s 117 (2A) ­– order for costs made pursuant to s117 (2)

Family Law Act 1975 (Cth) s 117(1), 117(2) & 117(2A)

APPLICANT: Mr Gardiner

RESPONDENT: Ms Gardiner

FILE NUMBER: ADC 78 of 2007

DATE DELIVERED: 9 February 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: LYNCH MEYER

COUNSEL FOR THE RESPONDENT: Mr D.M. Berman

SOLICITOR FOR THE RESPONDENT: HOWE MARTIN & ASSOCIATES

Orders

1. The wife pay the husband’s costs of and incidental to the Application in a Case filed 7 August 2009 such costs at a figure to be agreed between the parties and failing agreement as taxed by the Court.

2. Further consideration of the Application in a Case filed by the husband on 15 January 2010 is adjourned to 8 June 2010 at 9.15 am before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment under the pseudonym Gardiner & Gardiner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 78 of 2007

MR GARDINER

Applicant

And

MS GARDINER

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which is brought before me following upon a decision I made and a judgment I delivered in November of last year.  That related to the application brought by the husband in the proceedings by application in a case filed on 7 August 2009 when he sought orders that the wife pay the mortgage payments in relation to the former matrimonial home at T, rates and taxes, and insurance premiums.  The application was supported by affidavit.  The wife filed a response seeking the dismissal of the application and affidavit material in support.  I heard substantial argument on the matter on 19 October 2009.  I delivered my reasons and made orders on 25 November 2009;  making the orders in substance that the husband had sought.

2. The matter comes on today before me pursuant to the request the husband makes that the wife pay the husband’s costs of and incidental to that application filed by him on 7 August 2009.  Counsel appear before me today and have put submissions.  The counsel for the husband produced an outline of argument attached to which is an itemised cost account of some $18,000, being an account which on the face of it would appear to be clearly a solicitor-client account containing items which may not necessarily be allowed should the matter proceed to a taxing on a party/party basis.

3. The matters which the Court has to consider are substantially set out in section 117 of the Family Law Act1975 (Cth). Subsection (1) of that clearly provides that subject to subsection (2), and other sections which are not relevant in this matter, each party to proceedings under the Act shall bear his or her own costs. Subsection (2) however, directs that if in proceedings under the Act the Court is of the opinion that there are circumstances that justify it in doing so the Court may, subject to other subsections and the rules of Court, make such order as to costs as the Court considers just. The provisions of section 117(2A) then set out the matters to which the Court must have regard. Some of those have been mentioned specifically by both counsel before me today.

4. To understand the material that I have to consider it is necessary to see the matter in the appropriate context of ongoing detailed proceedings between the husband and the wife in relation to financial orders, and in particular property settlement, in which issues have been raised concerning the ability of the husband to access funds which form part of a family trust and the significance to be given to the husband’s past use of and access to funds of that trust.  As I have clearly said in my judgment in relation to the mortgage payments, there are substantial issues to be determined by the Court when the matter comes on for conclusion hearing in relation to final resolution of the financial matters. 

5. However, the application before the Court which was the subject of the judgment which I made on 25 November 2009 was what was to happen pending the resolution of the financial matters in relation to the payment of the mortgage and expenses in relation to the former matrimonial home which was occupied by the wife. I will not repeat all of the matters set out in my judgment of 25 November which sets out sufficiently the background to the application before me then. Bearing in mind the provisions of section 117(1) I turn to consider the provisions of section 117(2A), so far as they apply to this particular application in relation to costs.

6. The first matter which the Court is required to consider is the financial circumstances of each of the parties to the proceedings.  The Court has before it the statement of financial circumstances of both of the parties.  That matter was before the Court in relation to the question of the payment of the mortgage on the interim proceedings.  I am also told today from the bar table that there is an order that the husband pay costs of proceedings back in 2007, an order of some substance which he has not been paid.  That is a factor which obviously relates to the financial circumstances of each of the parties to the proceedings and, albeit that it appears there has been some discussion about his default in the payment of that order for costs, the fact that there is a Court order that he pay the costs is clearly a matter which the Court should take into account when considering the financial circumstances of each of the parties.

7. Both parties are employed, have an income, and expenses.  It is not up to the Court at this stage to make a careful analysis of the statement of financial circumstances of both of the parties.  Mr Berman, counsel for the wife, is correct when he points out that the question of the husband’s access to other funds or benefits from the trust will be matters to be determined at the final hearing in relation to overall property settlement proceedings.  However, the financial circumstances of the parties to the proceedings, at this stage, are clearly a factor which I take into account in considering the question of costs weighing up that that some particulars are yet to be determined. 

8. The next relevant factor is the subsection (c);  the conduct of the parties to the proceedings.  Without limiting the generality of those matters the question of compliance with production of documents it would appear that both parties attended to the filing of documents in relation to the application in an appropriate manner.  The itemised costs account annexed to the outline of argument of the husband shows the total amount of $18,000 which concerns me bearing in mind the question of proportion between the amount of money spent in order to get an order for the payment of mortgage on an interim basis.  That may be a matter which Registrar could take into account if the parties are unable to agree a quantum of costs and it is necessary for the parties to go to the further expense of having costs taxed.

9. Subparagraph (d);  whether the proceedings were necessitated by the failure of a party to proceedings to comply with previous orders of the Court, is not an issue. 

10. Subsection (e);  whether any party of the proceedings has been wholly unsuccessful in the proceedings.  This is the significant issue that seems to be the main argument before me this morning.  The husband’s counsel asserts that the wife has been wholly unsuccessful in the proceedings.  However, the wife’s counsel suggests that portions of my judgment of 25 November 2009 indicate that some of the reasons put up in opposition to the application had merit on the part of the wife.  Under the heading of discussion the judgment discusses the submissions made in relation to the issues then before the Court and acknowledges that some of the factors argued by the wife were necessary to consider.

11. I have been referred to certain portions of my judgment however, the judgment itself makes it clear that many of those matters and some of the inconsistencies would be matters which need to be determined “after appropriate evidence has been tested at the final hearing” (paragraph 37 of my earlier judgment).  I accept that parts of the judgment refer to the factors which will have to be determined at a later time.  I do however, draw the parties’ attention to paragraph 47 and onwards which clearly indicates that I made the finding on the basis that the evidence before the Court established that the wife and one of the adult children were residing in the former matrimonial home, she had an income of $90,000 and she had not contributed directly to the mortgage payments, rates, council rates, or emergency services for the former matrimonial home since at least 2007. 

12. In further paragraphs I set out the reasons for making the orders which were in terms of the application of the husband filed in August 2009.  To the extent therefore that the husband was wholly successful in obtaining the orders that he sought and the response of the wife was not successful, I am obliged to find that in these particular interim proceedings the wife has been wholly unsuccessful. 

13. I am not informed about any offers which were made which would bring into account subparagraph (f). 

14. Under subparagraph (g) of section 117 I take into account that it is relevant to consider that this matter is an interim application in a matter which has now been set down for trial where some of the issues to be determined will relate to who has paid outgoings since the separation of the parties. Some of the issues at the final hearing will also include the financial circumstances of the parties which will include passing reference to legal fees owing and paid and costs orders owing and paid.

15. Weighing all of the factors up and taking into account in particular that section 117(2) requires that the Court make an order in the circumstances as the Court considers just, and taking into account the factors that I have mentioned in subsection (2A), I am satisfied that it is appropriate to make an order that the wife pay the husband’s costs of and incidental to the application to the Court of 7 August 2009, such costs to be at a figure to be agreed between the parties and failing an agreement as taxed by the Court.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  24 February 2010