Gardiner & Gardiner

[2007] FamCA 1689

FAMILY COURT OF AUSTRALIA

GARDINER & GARDINER [2007] FamCA 1689

FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision of Judicial Registrar – Costs

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Gardiner

RESPONDENT: Mr Gardiner

FILE NUMBER: ADC 78 of 2007

DATE DELIVERED: 30 November 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 4 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Howe Martin & Associates

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Lynch Meyer

Orders

1. That the wife’s Application in a Case filed 7 September 2007 for Review of the Judicial Registrar’s orders of 31 August 2007 be granted.

2. That the husband pay 75% of the wife’s costs of and incidental to:

   (a)       the husband’s Form 2 Application filed 6 January 2007;

   (b)the husband’s Form 2 Application filed 29 March 2007, save as to paragraph 1;

   (c)the wife’s application for costs as it relates to the husband’s application of 29 March 2007;

   (d)the wife’s application for costs as it relates to husband’s application of 6 January 2007;

   (e)this application for review

   such costs to be in an amount as agreed or taxed.

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

MS GARDINER

Applicant

And

MR GARDINER

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me for determination the wife’s Application in a Case filed 7 September 2007 (Document 36) in which she seeks a review of the orders of Judicial Registrar Forbes made on 31 August 2007 in relation to costs. The Judicial Registrar’s orders read:

   “UPON NOTING that the Judicial Registrar declines to make an order for costs on the husband’s Form 2 Application filed 6 January 2007

   IT IS ORDERED:

   1.That the husband pay the wife’s costs as to the husband’s Form 2 Application filed on 29 March 2007, such costs to be agreed or taxed.

   2.That the husband pay the wife’s costs of today as it relates to the husband’s   Form 2 Application filed on 29 March 2007.”

2. The wife seeks a review of the Judicial Registrar’s decision not to make an order for costs in relation to the husband’s Form 2 Application filed on 6 January 2007 (Document 1) and of paragraph 2 of the Judicial Registrar’s orders.  The wife seeks orders that the husband pay her costs of and incidental to the husband’s Form 2 Application filed 6 January 2007, her costs of and incidental to the preparation of the wife’s costs application, including attendance on 31 August 2007, and the costs of and incidental to this application for review.

Background

1. The application for costs relates to the husband’s Form 2 Applications filed 6 January 2007 and 29 March 2007 (Document 14) and the wife’s Amended Form 2A filed 14 February 2007 (Document 10).  There appears to be some confusion regarding whether the husband’s Form 2 was filed on 6 or 8 January.  The Form 2 on the court file is stamped the 6 January 2007. However, there appear to be in existence copies date stamped 8 January.  Nothing turns on this, as both dates are referring to the same Application.  I will refer to this as the Application of 6 January 2007.

2. In the husband’s Form 2 Application filed on 6 January 2007 the husband sought orders that the wife vacate the former matrimonial home at T and that the husband have the sole use and occupation of the property.  The husband also sought that the wife pay the costs of and incidental to his application.

3. On 30 January 2007 the wife filed a Form 2A Response to an Application in a Case (Document 7) seeking orders that the husband’s Form 2 filed on 8 January 2007 be dismissed and seeking costs of and incidental to the application. 

4. On 6 February 2007 the husband’s Form 2 filed 6 January 2007 was referred to the long duty list before the Judicial Registrar.

5. On 14 February 2007 the wife filed an Amended Response, seeking orders that the husband’s Form 2 Application filed on 8 January 2007 be dismissed, and that the husband be restrained and an injunction be granted restraining him from:

   7.1Removing or causing to be removed from the former matrimonial home at T any items of furniture or household effects pending the hearing of the respective applications for property settlement.

   7.2Allowing his female friend [Ms H] from entering upon or remaining in the vicinity of the former matrimonial home pending the hearing of the husband’s Form 2 Application.

   The wife also sought that the husband pay the costs of and incidental to the application.

6. On 29 March 2007 the husband filed a Form 2 Application in a Case seeking orders that the wife be restrained and an injunction be granted restraining the wife from:

   8.1Harassing, verbally abusing or behaving in a provocative manner towards [Mr M Gardiner], [Ms V Gardiner], [Mr S Gardiner] or [the child M] or interfering with their quiet enjoyment of the premises at [T] or any of their places of employment. 

   8.2Harassing, verbally abusing or communicating with [Ms H].

   8.3In any way causing harm to the dogs […] and […] and behaving in any way that would endanger the safety of the said dogs and in particular that she not take any action that would cause the dogs to wander freely outside the [T] property, or take them off the property.

   8.4From bringing any members of her extended family to the [T] property or allowing them to remain in or on the [T] property without the written consent of the husband;

   8.5Removing or causing to be removed any items of furniture or household effects from the [T] property without the written consent of the husband.

   The husband also sought orders that if the wife did not vacate the property, she pay half of all household expenses, including mortgage payments, water rates, council rates, emergency service levy, gas electricity and security.  The husband sought that the wife pay the costs of and incidental to the application.  The application was also listed to 18 April 2007.

7. The matter came on before Judicial Registrar Forbes on 18 April 2007.  The husband did not pursue his application filed 6 January 2007 for sole use and occupation of the former matrimonial home on this occasion.  Judicial Registrar Forbes dismissed the husband’s Form 2 filed 6 January 2007 and the wife’s Form 2A filed 14 February 2007 and reserved the issue of costs.  Orders were made by consent restraining each of the parties from harassing, verbally abusing, molesting, behaving in a provocative manner towards and interfering with the other’s quiet enjoyment of the T premises and from removing any items of furniture from the property.  The Judicial Registrar also dismissed by consent paragraph 1 of the husband’s Form 2 filed 29 March 2007 (dealing with injunctions) and adjourned the remainder of the Form 2 ( as to household expenses) to 16 May 2007.

8. The hearing on the 16 May 2007 was adjourned to 12 July 2007.  The wife’s costs were reserved on this occasion.

9. On 12 July 2007 counsel for the husband informed the court the husband would not be proceeding with his application filed 29 March 2007.  The Judicial Registrar thus made orders by consent that the balance of the husband’s Form 2 filed 29 March 2007 be dismissed.  His Honour adjourned the matter of the wife’s costs of and incidental to the application and as to the husband’s Form 2 application filed 6 January 2007 for argument.

10. On 31 August 2007, the Judicial Registrar made the orders the subject of review.

Summary of argument

1. Counsel for the wife, Mr Richards, submits that the husband’s application of 6 January 2007 was without merit and entirely unsuccessful.  The husband withdrew his application.  However, the wife was put to the expense of briefing counsel and preparing a case outline document on the issue of sole use and occupation of the former matrimonial home. In response to an argument that the husband was partially successful through the injunctive orders made, Mr Richards submits that the injunctions were not the central issue to be determined at the hearing, but rather the issue of sole use and occupation which had been transferred from a short hearing to a long duty matter.  Mr Richards also indicated that the only court involvement on the 18 April regarding the injunctive orders was the recording of consent orders on the issue.  It is thus the wife’s position that the husband was entirely unsuccessful in his application and should pay the wife’s costs.

2. The wife also seeks that paragraph 2 of the orders made 31 August 2007 be altered so as to read “the costs of and incidental to” so as to include the costs of preparation of the matter.  The wife seeks an order for the costs of the application to also include the application for costs that relates to the 6 January application, not only the application for costs relating to 29 March 2007, as the order currently  reads.

3. Mr Jordan, for the husband, argued the matter could be by divided into two “series” of documents. Firstly, there being the husband’s application of 6 January 2007, the wife’s responses and paragraph 1 of the husband’s application filed 29 March 2007.  Mr Jordan submitted that effectively paragraph 1 of the husband’s Form 2 application was a reply to the wife’s Form 2A response and as such the husband could have chosen to file a reply on this issue, but did not do so.  Mr Jordan contended the husband’s application of 29 March was effectively in two parts- the injunctive orders sought and an application seeking contribution from the wife to household expenses.  Mr Jordan thus contends on the husband’s behalf that the husband was not wholly unsuccessful given the mutual injunctive orders made.  Mr Jordan disputes that the issue of sole use and occupation was the only substantive application on 18 April.  It seems on Mr Jordan’s submissions, the issue of the various injunctions was also to be determined on 18 April, on which both the husband and wife succeeded.

Discussion

1. In making any order for costs, regard must be had to s 117 of the Family Law Act 1975 (Cth), particularly s 117(2A). Section 117 of course provides that each party is to pay their own costs, subject to subsection 2, subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118.

2. Section 117(2A) sets forth the factors to which the Court is to have regard when considering the making of an order for costs. Of relevance in these circumstances would appear to be (a) the financial circumstances of the parties; (c) the conduct of the parties in relation to the proceedings; (e) whether any party has been wholly unsuccessful in the proceedings; and (g) such other matters as the court considers relevant.

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

1. It can be gleaned from the parties’ respective Form 13 Financial Statements that there is a disparity in their financial positions.  The husband’s Financial Statement, filed 6 January 2007, outlines that the husband has an average weekly income of $854.  The husband is employed in the family business and receives a salary and also income from a family trust. The husband’s expenditure is declared to be $665 per week, which predominantly consists of mortgage repayments and other household outgoings, leaving the husband with $189 per week disposable income.  The wife is employed as a valuer.  From the wife’s Financial Statement filed 14 February 2007, it can be seen her average weekly income is $1,412.00 and her personal expenditure $786.00, providing a $626 per week disposable income.

(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;

and

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

1. The husband’s Application filed 6 January 2007 sought orders that the husband have sole use and occupation of the former matrimonial home.  The application did not address injunctive orders.  The matter was set for a long duty hearing and the wife was put to the expense of preparing for the hearing and briefing counsel.  The husband withdrew his application at the hearing and thus was wholly unsuccessful (s 117(2A)(c)).  In such circumstances, on the merits, the husband should pay the wife’s costs relating to the application, including the portion of the 18 April hearing set aside for argument on the issue of sole use and occupation. 

2. It is, however, a matter of determining whether the conduct of the husband in withdrawing his application and thus the husband’s application being wholly unsuccessful, justifies the making of a costs order against the husband given the respective financial circumstances of the parties.  In the context of ordering the husband to pay the wife’s costs of the application of 29 March 2007, the Judicial Registrar did not consider that anything in the financial particulars of either party impeded the determination of the issue on the merits.

Conclusion

1. On balance I am of the view that the financial differential between the parties justifies some amelioration of the impact of the husband’s lack of success upon the orders I should make.  I am satisfied that the husband should pay 75% of the costs of the wife incurred in meeting the husband’s applications of 6 January 2007.  I am also satisfied that the husband should pay 75% of the wife’s costs in meeting the application of 29 March 2007, save as to paragraph 1.  Although the wife did not seek a review of the Judicial Registrar’s order in relation to the costs of that application (paragraph 1 of the Judicial Registrar’s orders), on an Application for review all options are open to me and I consider this appropriate.

2. The parties should pay their own incurred costs relating to the injunctive orders (Wife’s Form 2A filed 14 February 2007 and paragraph 1 of husband’s Form 2 filed 29 March 2007) given the mutual nature of the injunctions made.

Orders made by Judicial Registrar on 31 August 2007

1. Paragraph 1 of the Judicial Registrar’s order provides for the wife’s costs relating to the husband’s application of 29 March 2007 and paragraph 2 provides for the costs of the hearing on 31 August 2007 as it relates to that application of 29 March 2007. To clarify the position so there is no argument at taxation I will alter the wording of the order to read “the costs of and incidental to” to ensure the orders include the costs of preparation to meet the husband’s application of 29 March 2007.  With regard to the costs of preparation of the wife’s costs Application, and attendance on 31 August, the husband should also pay 75% of same.

Costs of application for review

1. The wife also seeks that the husband pay the costs of and incidental to this Application for review.  As the wife has been largely successful in that application, the husband should also pay 75% of same.

I certify that the preceding twenty four [24] paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate

Date:  30 November 2007