HADID & MATIN

[2020] FamCA 909

FAMILY COURT OF AUSTRALIA

HADID & MATIN [2020] FamCA 909

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where the Registrar made an Order for the husband to pay the wife’s costs thrown away at a Conciliation Conference – Where that money may be paid upon the finalisation of proceedings – Orders varied.

Family Law Act 1975 (Cth) s 117

D & D (Costs) (No. 2) (2010) FLC 93-435

APPLICANT: Mr Hadid

RESPONDENT: Ms Matin

FILE NUMBER: SYC 1327 of 2019

DATE DELIVERED: 28 October 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Dealt with in chambers by written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Coffey submitted on behalf of the applicant

SOLICITORS FOR THE APPLICANT: Gells Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Gordon submitted on behalf of the respondent

SOLICITORS FOR THE RESPONDENT: Marsdens Law Group

Orders

1. That Order 3 made by Registrar Ryan on 24 August 2020 is varied so as to read as follows:

   3.The husband shall pay the wife's costs of the Conciliation Conference held on 24 August 2020 in the sum of $1,050, with such costs to be paid by the husband from his share of the funds held in a controlled monies account, upon finalisation of these proceedings.

2. That the costs of both parties of the application for Review of the decision of the Registrar on 24 August 2020 are reserved to trial or finalisation of the proceedings.

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 Hadid & Matin 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 SYDNEY

FILE NUMBER: SYC 1327 of 2018

Mr Hadid

Applicant

And

Ms Matin

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Hadid and Ms Matin are parties to proceedings which include competing applications for alteration of property interests.  On 24 August 2020 the parties attended a Conciliation Conference conducted by a Registrar.  At the conclusion of that conference, the Registrar ordered that the husband pay the wife's costs in the sum of $1,050 within 14 days.  The Registrar's bench sheet of 24 August 2020 stated inter alia:

   3.The husband shall pay the wife's costs of today thrown away in the sum of $1,050 within 14 days.

2. On 18 September 2020 the husband filed an Application in a Case, by which he sought a number of orders including a Review of the Registrar's decision.  I will not deal with any of the additional relief sought by the husband in this application, as the proceedings were referred to me only in respect of the Review application.  Each of the parties sought an order that the other pay his or her costs of the application for Review of the Registrar's decision.

Consideration

1. An application for costs is to be determined in accordance with section 117(2) of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides, subject to certain exceptions, that each party to the proceedings shall bear his or her own costs. Section 117(2) provides as follows:

   (2)  If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) 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.

1. Section 117(2A) sets out a number of matters to which the court must have regard in considering what order should be made pursuant to section 117(2). This subsection provides as follows:

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

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

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (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;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

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

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

Section 117(2A)(a)  the financial circumstances of each of the parties to the proceedings

1. The husband deposed in his Financial Statement of 18 September 2020 that his sole source of income is a JobKeeper allowance of $750 per week.  He deposed to a weekly expenditure of $2,258.  The husband's Financial Statement was a confusing document.

2. The wife deposed that she earns $2,900 per fortnight as a registered nurse and that she pays mortgage instalments of $961.  Accordingly, she has available approximately $1,939 per fortnight with which to meet all of her additional expenditure.

Section 117(2A)(b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party

1. Neither party is in receipt of a grant of legal aid.

Section 117(2A)(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

1. Clearly, the Registrar formed the view that the husband's conduct at the Conciliation Conference warranted an order for costs.  Of course, there is no transcript of the Conciliation Conference nor evidence as to what occurred in terms of exchange of settlement offers and other relevant matters.

Section 117(2A)(d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. Not applicable.

Section 117(2A)(e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Not applicable.

Section 117(2A)(f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. Not applicable

Section 117(2A)(g)  such other matters as the court considers relevant

1. The husband contended that he has no funds available to meet the order for costs.  A sum of approximately $505,500, being the proceeds of sale of the parties' former matrimonial home, is currently held in a controlled monies account.

Conclusion

1. Nothing advanced by the husband, either in the way of evidence or submission, persuades me that I should discharge the costs order made by the Registrar.  Although it is well established that impecuniosity is no bar to a costs order in appropriate circumstances (D & D (Costs) (No. 2) (2010) FLC 93-435) it seems to me that the payment ordered by the Registrar could be made from the husband's share of the controlled monies account on finalisation of the proceedings.

2. As to the costs of the present application, I will not accede to the application of either party.  I will reserve the costs of both parties of and incidental to the review application to be determined at trial or in the course of finalisation of the competing applications.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 28 October 2020.

Associate: 

Date:  28 October 2020