Garthe and Bankes

[2019] FamCA 783

FAMILY COURT OF AUSTRALIA

GARTHE & BANKES [2019] FamCA 783

FAMILY LAW – COSTS – no basis for departing from provisions set out in s 117(1) of the Family Law Act.

Family Law Act 1975 (Cth), s 117
APPLICANT:	Mr Garthe

RESPONDENT: Ms Bankes

FILE NUMBER: MLC 7200 of 2018

DATE DELIVERED: 29 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

BY WAY OF WRITTEN SUBMISSIONS: 25 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Brygel Lawyers

Orders

1. The application by Mr Brygel for Mr Garthe to pay the wife’s costs is dismissed.

2. Each party is to bear his and her own costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7200  of 2018

Mr Garthe

Applicant

And

Ms Bankes

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 19 December 2018 a registrar made final orders by consent in this proceeding thereby compromising the property proceeding that Mr Garthe commenced against Ms Bankes.  Pursuant to those orders, various activities had to be performed by each party by specified dates.  Ms Bankes said Mr Garthe failed to perform his obligations or he performed them in a dilatory manner.  She sought costs.

Synopsis

1. For the reasons that follow, each party will bear his and her own costs.

Factual setting

1. On 21 March 2019 Ms Bankes filed an application in a case for orders compelling Mr Garthe’s compliance with the terms of the orders made by consent on 19 December 2018.  A collection of appearances then followed resulting in adjournments being ordered by consent on 3 April 2019 and on 24 April 2019, the trial fixed for 15 May 2019 being vacated by consent orders made the day earlier, the listing fixed for 5 June 2019 being adjourned by consent made the day earlier to 19 June, the listing fixed for 19 June 2019 being adjourned by consent to 18 July 2019 and the proceeding being adjourned to 1 August. 

2. On 1 August 2019 Mr Brygel, the solicitor for Ms Bankes, informed me that his client sought the dismissal of the proceeding having regard to the resolution of residual issues concerning Country B passports in relation to the children.  Mr Brygel told me that his client was concerned that a time limit be placed on the father to ensure that any application for the husband’s reinstatement of the proceeding should be made within a three month period from 1 August, if such an application was necessary, referrable only to the children’s Australian passports.  Mr Brygel applied for costs.  I directed the parties to file submissions in relation to costs by a certain date. 

Factual issues concerning costs

1. In most of the appearances before me, the focus was on complications associated with Country B passports for the children in this case.  That was relevant to the obligations assumed by the parties pursuant to paragraph 8.3 of the consent orders made on 19 December 2018.  That paragraph was as follows –

   8.3The parties shall apply for Country B passports for their children and/or the Applicant shall cooperate with the Respondent’s Application for same, including renewal and also with respect to their Australian passports.

2. In an affidavit made by the wife on 18 March 2019, Ms Bankes exhibited a document that she said the Country b passport authorities required Mr Garthe to sign.  Mr Garthe said the document Ms Bankes wanted Mr Garthe to sign went very much beyond the terms of paragraph 8.3 of the consent orders.  Mr Brygel rendered fees to his client for which Ms Bankes sought either payment from Mr Garthe or reimbursements after payment by Ms Bankes.  Ms Bankes has pointed to Mr Garthe having cash resources as well as assets to meet her request for orders to compel Mr Garthe to pay all costs that pursuant to earlier orders in this proceeding had been reserved.  She sought payment of $9,740.

Costs in family law litigation

1. The usual consequence exhibited in litigation in common law courts of costs following the event is reversed by s 117(1) of the Family Law Act. That section provides that each party must bear his or her own costs unless circumstances exist under s 117(2) warranting a different order as to costs. Section 117(2A) makes provision for the matters that are to be taken into account when making an order under s 117(2) of the Family Law Act. 

2. In the usual course of events, that is to say circumstances that do not enliven s 117(2), s 117(1) of the Family Law Act applies with the consequence that each party bears his or her own costs. I did not discern any conduct by Mr Garthe that would involve the operation of s 117(2) justifying the imposition of a costs order being made against Mr Garthe, whether for the sum sought by Ms Bankes or for any sum. In my view, the cooperation contemplated by paragraph 8.3 of the consent orders made on 19 December 2018 did not go so far as requiring Mr Garthe to sign the document prepared by Ms Bankes. Mr Garthe was well within his rights to resist signing that document. His refusal to sign that document did not thereby expose him to a costs order at the suit of the wife.

3. The application made by Mr Brygel for Mr Garthe to pay the wife’s costs is dismissed.  I order that each party is to bear his and her own costs. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 29 October 2019.

Associate:

Date:  29 October 2019