Hadden and Mansell (No 2)

[2014] FamCA 1249

FAMILY COURT OF AUSTRALIA

HADDEN & MANSELL (NO. 2) [2014] FamCA 1249

FAMILY LAW – COSTS – Application by the respondent for the applicant to pay his costs – each party to bear his or her own costs.

APPLICANT: Ms Hadden

RESPONDENT: Mr Mansell

FILE NUMBER: CAC 1641 of 2012

DATE DELIVERED: 17 December 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 17 December 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	No appearance by or on behalf of Ms Hadden
SOLICITOR FOR THE RESPONDENT:	Mr Brown

Orders

1. The respondent’s Application in a Case that the applicant pay his costs is dismissed. 

2. The matter is removed from the pending cases list.    

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1641 of 2012

Ms Hadden

Applicant

And

Mr Mansell

Respondent

REASONS FOR JUDGMENT

1. The reasons for my coming to that conclusion are as follows.

2. Under the Family Law Act 1975 (Cth) s 117 prescribes matters relating to costs and in this regard the primary position is as follows.

   Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and section 118 -

   (none of which is relevant to these proceedings)

   each party to proceedings under this Act shall bear his or her own costs.

3. Subsection (2) provides that:

   If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A) – … and the applicable rules of court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise as the court considers just.

4. In Penfold & Penfold, as was pointed out in the course of Mr Brown's submissions, the High Court indicated that a fairly robust approach to the question of costs might be undertaken by a court. However, their Honours' decision in that matter preceded the introduction into the Act of s 117(2A). The effect of that section is to require, in determining an order for costs that the court must have regard to the matters set out in s 117(2A). Those matters are as follows, and I shall deal with them seriatim, as I proceed.

5. The financial circumstances of each of the parties to the proceedings.  In this matter neither of the parties in the end has much in the way of finance and there is no compelling evidence on the part of either the applicant or the respondent in relation to the question of costs that an order should be made in favour of that person because of their financial circumstances.  If there were to be a differentiation between the parties it would be on the basis that the mother is probably and provably less well off than the husband or the father in these proceedings.

6. The second matter to be taken into account is whether either party is in receipt of assistance by way of Legal Aid.  That is not applicable in this matter.

7. The third matter is the conduct of the parties to the proceedings and I will return to that in a moment.

8. The fourth matter is whether the proceedings were necessitated by a failure of a party to comply with previous orders of this court.  This is peripherally and marginally engaged in this matter because of the assertions by the mother during the course of the proceedings and the course of the orders which, in fact, corroborate the mother's assertion that the father's compliance with various orders and obligations in relation to discovery was something less than ideal.

9. Whether either party – any party to the proceedings has been wholly unsuccessful in the proceedings is really not engaged in these matters as well.  It might be said comparatively or relatively the mother was unsuccessful in that she did not achieve what she wanted to achieve.  On the other hand, she achieved to some extent.  The extent to which she could succeed in the end as a result of the final consideration of the assets of the parties was relatively small.

10. The father in these proceedings or the husband in these proceedings has put significant reliance upon various offers of settlement were made to finalise the proceedings and the refusal by the mother or the wife to accept them.  I will return to those in more detail in due course.

11. And finally, there is the inevitable catch-all phrase in legislation these days, as “such other matters as the court considers relevant”.

12. I return first to the issue of the conduct of the proceedings.  The mother's conduct of these proceedings could not seriously be put into question.  She pursued the matter with vigour but not necessarily with unreasonable demands.  The mother complains and, as I said, I think to some extent it is corroborated at least by the orders that were made from time-to-time, that the father failed to make proper disclosure and, most significantly in my opinion, and significant to a very marked degree, the father failed in a particular way to make available to the court, as he was obliged to do, the fact that he had received a bonus immediately before his execution of a financial statement.

13. It is the case, apparently, although it is an assertion rather than a proved fact that the money was expended as I suggested or surmised in my reasons for judgment in the primary matter, that it may have gone on legal costs.  It is difficult to ascertain exactly what happened to it.  Whatever it was, it was a significant omission and one which added to the general climate of distrust and discontent on the part of the mother about the level of disclosure that had been made.

14. Those are matters which colour the whole aspect of the offers of settlement that were subsequently made and give rise to a proposition which, in my opinion is appropriate, that the mother was entitled to reject the offers of settlement that were made, even though they proved in the end, in some cases, to be more generous than the result she obtained.

15. I say that in the context that if parties come to this court they are entitled to expect that their opponent, the other party, will comply with the obligations under the Act to make a full and frank disclosure and that, moreover, that there will be no attempt, either indirectly or directly, to mislead as to the financial circumstances of the other party.

16. In consequence of those matters, it seems to me that the offers made which were detailed very precisely and particularly by Mr Brown (whose preparation of his submissions was meticulous) do not affect my determination that this is a matter in which the primary prescription of the Act, which is that each party should bear his or her own costs, must be read.  And, in my opinion, the offers do not displace that primary position, and the order I make is as I have indicated. 

17. That finalises this matter.  The matter is completed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 17 December 2014.

Associate: 

Date:  22 May 2015