Halstron & Halstron
[2022] FedCFamC1F 211
•5 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Halstron & Halstron [2022] FedCFamC1F 211
File number(s): SYC 2788 of 2016 Judgment of: MCEVOY J Date of judgment: 5 April 2022 Catchwords: FAMILY LAW – COSTS – Circumstances justifying costs order – Where husband seeks party/party costs against the wife – Where the husband made four offers of settlement to the wife throughout the proceedings – Where the wife received less on a percentage basis in the final orders than she would have received had she accepted any of the final three offers made by the husband – Where the wife’s reasons for not having accepted the husband’s offers are rejected – Where the wife was wholly unsuccessful in her case and has appealed to the Full Court – Where a costs order is made commencing in time from the lapse of the second offer made by the husband – Where payment of costs is not required until 30 days after the determination of the wife’s appeal by the Full Court and subject to any order of the Full Court to the contrary Legislation: Family Law Act 1975 (Cth) ss 75, 79 and 117
Family Law Rules2004
Federal Circuit and Family Court of Australia (Family Law) Rules2021
Cases cited: Baum & Lokare (No 2) [2019] FamCA 292
Calderbank v Calderbank [1975] 3 All ER 333
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
Halstron & Halstron [2021] FamCA 437
Hogan & Hogan (1986) FLC 91-704
I & I (No.2) (1996) FLC 92-62
Kelly & Kelly (No.2) (1981) FLC 91-108
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Wrenstead v Eades (2016) FLC 93-697; [2016] FamCAFC 46
Division: Division 1 First Instance Number of paragraphs: 57 Date of last submissions: 1 October 2021 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: Crumpton Lawyers Solicitor for the Respondent: Lander & Rogers ORDERS
SYC 2788 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRLIA (DIVISON 1)
BETWEEN: MS HALSTRON
Applicant
AND: MR HALSTRON
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
5 APRIL 2022
THE COURT ORDERS THAT:
1.Within 30 days after the determination of the appeal by the Full Court in this matter, and subject to any order of the Full Court to the contrary, the wife pay to the husband:
(a)his costs of the proceedings incurred from 7 August 2019 calculated on a party/party basis in an amount to be agreed and, in default of agreement, to be assessed; and
(b)the sum of $5,847.05 being her half share of the mediator’s costs for the second mediation on 13 February 2019.
2.The wife’s Response to an Application in a Case filed 27 August 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Halstron & Halstron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCEVOY J:
INTRODUCTION
The husband in these proceedings, Mr Halstron (“the husband”), by an application filed 21 July 2021, seeks orders that the wife, Ms Halstron (“the wife”), pay his costs of the proceedings on a party/party basis in default of agreement following final property orders made by the Court on 24 June 2021. He also seeks that the wife pay him a half share of the costs of a particular private mediation session.
At trial the wife sought the payment of a fixed sum to her representing approximately 50 to 55 per cent of the total asset pool on the basis that her contributions should be assessed as 40 to 45 per cent of the parties’ net assets, and that she should be given a 10 per cent adjustment in her favour on the basis of the factors set out in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”). The husband sought a division of 70 per cent in his favour and 30 per cent to the wife. Following a defended final hearing the Court determined that the parties’ contributions should be assessed on a 67.5/32.5 per cent basis in favour of the husband. There was an adjustment of 2.5 per cent in favour of the wife. Final orders were made that a division of the parties’ net assets including superannuation on a 65/35 per cent basis in favour of the husband was appropriate for the purposes of s 79(1) of the Act.
On the same day as the husband filed his application for costs, the wife filed a notice of appeal in the Full Court seeking to have the final orders of 24 June 2021 set aside. The appeal was heard on 2 February 2022 and judgment of the Full Court is presently reserved.
In her response filed 27 August 2021 the wife opposes the husband’s costs application and seeks in the first instance that it be listed for directions to a date not later than 14 days after the determination of the appeal by the Full Court. In the alternative she seeks to have the husband’s application dismissed, and in the event that any costs order is made in favour of the husband she seeks that the payment of such costs not be required until at least 30 days after the determination of the appeal by the Full Court.
For the reasons which follow there will be orders that the wife pay the husband’s costs of the proceedings incurred from 7 August 2019 calculated on a party/party basis, in addition to her half share of the mediator’s costs for the mediation on 13 February 2018 being $5,847.05. These costs will be payable within 30 days of the determination of the appeal by the Full Court, subject to any order of the Full Court to the contrary.
MATERIAL RELIED ON
The husband relied upon the following material:
(a)Application in a Proceeding dated 21 July 2021;
(b)affidavit of the husband’s solicitor, Mr AB affirmed 21 July 2021 (including annexures);
(c)written submissions filed 10 September 2021;
(d)affidavit of the husband filed 10 September 2021 (to which the wife objects); and
(e)written submissions in reply filed 1 October 2021.
The wife relied upon the following material:
(a)Response to an Application in a Proceeding filed 27 August 2021;
(b)affidavit of the wife filed 27 August 2021 (including annexures); and
(c)written submissions filed 24 September 2021.
RELEVANT PRINCIPLES
The general rule under the Act is of course that parties to proceedings shall each bear their own costs, unless there are circumstances which justify the Court departing from that general rule: s 117(1) of the Act.
Subject to the requirement that any costs order must be just, the Court has a broad discretion in relation to costs matters: Kelly & Kelly (No.2) (1981) FLC 91-108; Hogan & Hogan (1986) FLC 91-704; I & I (No.2) (1996) FLC 92-62. Section 117(2) of the Act provides 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 subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of the Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.
Accordingly, a party seeking that the Court make a costs order must establish that the justice of the case requires an order for costs by reference to the non-exhaustive list of statutory considerations set out in s 117(2A) of the Act before such an order is made: Baum & Lokare (No 2) [2019] FamCA 292 at [10] (“Baum”); Penfold v Penfold (1980) 144 CLR 311, 315 (“Penfold”). However as McClelland DCJ observed in Baum, (citing Penfold), “it is not the case that a costs order can only be made in what has been described as a ‘clear case.’” In Wrenstead v Eades (2016) FLC 93-697 at [15] the Full Court reiterated this position, noting that as long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the applicant needs to establish in order to obtain an order for costs.
Any one, or any combination, of the considerations in s 117(2A) can be matters on the basis of which the Court could make a costs order. Whilst the considerations must be taken into account, there is nothing to prevent any factor being the sole foundation for an order for costs being made: Baum at [11]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41] (“Fitzgerald”).
THE PARTIES’ POSITIONS
Costs order
The husband’s position is that the wife should pay his costs of the proceedings on a party/party basis. Referring to s 117(2A)(a) of the Act, the husband says that the wife has significant assets to meet any costs order, noting the final order which provided some $5 million to the wife.
In relation to s 117(2A)(c), the husband submits that the wife’s conduct in the course of the proceedings has caused him to incur unnecessary legal costs. In this respect he relied on the findings at trial that the wife’s allegations of non-disclosure against him were without foundation and that it was in fact the wife who had caused the wastage of time and costs in the conduct of the proceedings. The husband submits that the wife was wholly unsuccessful in the proceedings, having sought a fixed sum representing 55 per cent of the pool but having only received 35 per cent of the total pool and a fixed sum for only part of the pool. He says that properly advised, she should have known she had no chance of success in pursuing her application: s 117(2A)(e).
Referring to s 117(2A)(f), the husband says that he made four written settlement offers throughout the course of these proceedings between February 2018 and September 2019, all of which were rejected by the wife. The husband submits that had the wife accepted any of the offers she would have received more as a percentage than she did in the final orders and more on a dollar-value basis under all but the first offer, subsequently avoiding significant legal costs incurred by the parties in proceeding to final hearing.
However the wife submits that after considering all relevant factors pursuant to ss 117(2A)(a), (c), (e), (f) and (g) of the Act, there is no justification to depart from the general rule under s 117(1) that each party in the proceedings bear their own costs. She says that the parties’ financial positions are yet to be determined in circumstances where she has filed an appeal against the final orders. She says also that there is no evidence of the husband’s current financial position, and that there can be no doubt that the husband remains in a significantly superior financial position to her. The husband in his reply submissions submits that as final property orders have been made and have not been stayed, the financial circumstances of the parties are known. He also submits that it is settled law that impecuniosity is not a bar to a costs order being made (citing Northern Territory v Sangare (2019) 265 CLR 164) and that in any event both parties to these proceedings have significant resources. He contends that the wife can comfortably meet any costs order.
The wife submits that she conducted her case appropriately, notwithstanding the Court’s ultimate findings against her. Further, she suggests that for the Court to consider the same facts and circumstances as it did at trial in this respect would amount to double counting against her. In this regard the wife relies on the Court’s reasons for judgment where it was observed that if it had not been for the asserted conduct of the wife in the conduct of the proceedings, “a higher adjustment in favour of the wife may have been appropriate”: see Halstron & Halstron [2021] FamCA 437 at [283].
In reply the husband disputes the wife’s assertion that to take her conduct of the proceedings into account would amount to double counting. He submits that her wastage of costs was only one of the s 75(2) factors considered in the final judgment and that it is clear that the wife’s earning capacity was more significant in the calculation of the appropriate adjustment. Moreover, the husband relies on Fitzgerald to emphasise that the wife’s conduct in the proceedings is just one of the factors he says justifies an award of costs in this matter. The wife contends that while the husband achieved an outcome closer to the relief he sought, neither party was wholly unsuccessful in the proceedings. Unsurprisingly this point is disputed by the husband.
The wife also submits that when written offers were put to her by the husband, by reason of the paucity of disclosure by the husband and his control over the parties’ finances and assets, she did not know the value and content of the matrimonial property pool. She says for this reason she was not in a position at the relevant times properly to consider the offers. The husband submits that his alleged non-disclosure was not established at trial and the fact that the wife continues to make these unsubstantiated assertions in the face of such a finding lends further support to his application for costs. In any event he says that the wife knew what the pool was, and that she dealt with some assets in that pool unilaterally for her own benefit. For these reasons the husband contends that there was no basis for the wife not to consider and accept his offers, and had she done so she would have achieved a better result for herself and saved the parties significant legal costs.
The wife further disputes the quantum of costs sought by the husband. She says that the order sought by the husband in his Application in a Case filed 21 July 2021, that she “pay the costs of the Respondent Husband as certified under the Family Law Rules”, requires an assessment of the quantum of costs and cannot be regarded as an order sought for payment of the actual fees paid by the husband, which are in excess of $800,000, as this would amount to an indemnity costs order which is not what the husband says he seeks. In reply, the husband submits that he has, appropriately, sought an order for the wife to pay costs as certified under the Family Law Rules 2004, which are relevantly the same as the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, that he has not sought a costs order on an indemnity basis, and that if an order on scale is made then the order can provide that the wife pay his costs on scale as agreed or in the absence of agreement, to be assessed. He says this is consistent with the Rules and that there is no basis for the wife’s objection.
Costs of mediation
The parties attended two private mediation sessions in this matter: on 4 May 2017 and 13 February 2018. They each paid half of the cost of the first mediation but the husband alone met the full cost of the second mediation, the wife having refused to attend unless the husband met these costs. The husband says that he paid the fee of the second mediation in the first instance but that he reserved the right to seek costs against the wife at a later date. He submits that ordinarily such costs would be shared and that the wife should contribute her half of the costs given her conduct at the mediation.
The wife disputes any agreement about her paying half of the costs of the second mediation, although as the husband points out in his reply submissions, he does not assert that there was any such agreement, rather that he reserved the right to seek costs of the mediation at a later date. She submits that she refused to pay for half of the costs of a second mediation by reason of the husband’s failure to engage in the first mediation and provide relevant disclosure to support the assertions made by him. The husband disputes the wife’s allegation in this respect.
Stay or adjournment of costs order pending the appeal
The wife’s primary position is that the costs application should be adjourned until after the determination of her appeal to the Full Court and that there is no prejudice to the husband other than potential delay in receiving a costs order, should one be made. If she is unsuccessful, her position is that any costs order made against her should stipulate that the time for payment should be at a time after the determination of the appeal.
The husband rejects the wife’s position that any determination for costs should be adjourned or stayed pending the determination of her appeal in the Full Court, submitting that he is entitled to the fruits of his judgment, including any costs order, and that the lodging of an appeal by a party does not impinge on the validity of the judgment and is not a valid reason for adjourning a costs determination. He also notes that the wife has not sought a stay of the final orders and says that in circumstances where the wife has received or will shortly receive her entitlements pursuant to the final orders, the resolution of any costs issues should also be determined.
THE EVIDENCE
The evidence advanced by each of the parties is as follows.
The offers
As already mentioned, the husband says that he made four written settlement offers to the wife throughout the course of these proceedings, all of which were rejected by the wife. These offers are summarised in the affidavit of the husband’s solicitor, Mr AB. Mr AB also annexes the written offers to his affidavit which are dated 16 February 2018, 10 July 2019, 7 August 2019 and 18 September 2019.
The wife’s affidavit and annexures (including various appeal documents, correspondence in relation to mediations, correspondence between counsel in attempt to resolve matters and other financial documents including a balance sheet) reveal that she took issue with the calculations of the value of the pool at the times of particular offers and the accompanying percentage calculation of the relevant offer, as outlined by Mr AB (on behalf of the husband) in his affidavit.
The offers are summarised in Mr AB’s affidavit at [7] as follows:
Date of offer Value of asset pool at time of offer % division
offeredDollar value of offer 16 Feb 2018 $14,806,005
(including US properties)36.2% $5,364,000 10 July 2019 $15,120,822
+ US ppties $811,268
$15,932,09040% $6,052,600
plus 100% of net sale proceeds
of two US properties7 August 2019 $15,120,822
+ US ppties $811,268
$15,932,09040.7% $6,152,600
plus 100% of net sale proceeds
of two US properties18 Sept 2019 $15,120,822
+ US ppties $811,268
$15,932,09040.7% $6,152,600
plus 40% of net sale proceeds
of ALL US properties
I set out each offer in turn in more detail below.
The first offer - 16 February 2018
On 16 February 2018 an offer was made to the wife in correspondence with an enclosed balance sheet. It is noted that this balance sheet was not annexed to Mr AB’s affidavit, however it was annexed to the wife’s affidavit filed 27 August 2021. The offer stipulated that the wife would receive 35 per cent of the asset pool (subject to revaluation of certain assets).[1] The husband says at that time the asset pool had a total value of $14,806,005.
[1] Mr AB’s table in his affidavit dated 21 July 2021 refers, however, to a figure of 36.2%.
This offer proposed that the wife receive assets to the value of $5,364,000 including a property, a $1.6 million cash payment, her superannuation of $615,000, a further $500,000 in superannuation, CAD80,000 and a choice of the net proceeds of sale of shares or the shares themselves. This offer also sought an adjustment from the wife for half of the costs of the second mediation held on 13 February 2018 and included a “rise and fall” provision if the wife wanted to revalue the Suburb J property.
The offer was made on a Calderbank basis in accordance with the principles essayed in Calderbank v Calderbank [1975] 3 All ER 333, and was open to the wife for a period of 14 days. The wife rejected this offer.
The second offer - 10 July 2019
On 8 July 2019 the wife’s solicitor wrote to the husband concerning an offer which had apparently been made by senior counsel for the husband to the wife’s senior counsel. The correspondence from the wife’s solicitor sought to confirm that offer. The husband’s solicitor responded on 10 July 2019 enclosing a balance sheet and confirmed that an offer had been made on 5 July 2019 by senior counsel. That offer was confirmed, save for a number of differences, which ultimately would see the wife receive 40 per cent of the asset pool. The husband says that the asset pool at that time had a total value of $15,932,090.
This offer proposed that the wife receive assets to the value of $6,052,600 plus 100 per cent of the net proceeds of the sale of two properties situated in the United States. She was to retain under this offer two properties, CAD80,000, her motor vehicle and jewellery, her superannuation of $654,100, a superannuation split of $1.2 million, a cash payment of $2.7 million, and the net proceeds of sale of two US properties. The wife rejected this offer also.
The third offer - 7 August 2019
The husband made a third offer to the wife on 7 August 2019. It appears that this offer was in response to an offer made by the wife in writing to the husband on 2 August 2019. The contents of the 2 August 2019 letter are not described in Mr AB’s affidavit nor is the letter annexed. The wife’s offer is however annexed to the wife’s affidavit filed 27 August 2021.
The wife’s written offer of 2 August 2019 included draft final orders that would have seen her retain certain assets including her superannuation, receive a superannuation split of $1.2 million and a payment from the husband of $2.8 million, and stipulated that she would transfer her right and interest to the husband in all of the US properties and receive a sum of $450,000 from the husband in return. The wife specified in the letter that it would be open to the husband to accept this offer for a period of 14 days.
On 7 August 2019 the husband responded to this offer in writing and provided an in-principle agreement to certain aspects of the wife’s offer and made a counter-offer that would see the wife receive 40.7 per cent of the asset pool which at that time he says had a total value of $15,932,090. The husband did not accept the wife’s offer regarding the US properties and proposed that instead she would receive the proceeds of sale of two US properties, as well as a superannuation split of $1.2 million, a payment from him of $2.8 million with her to unlock the AC stocks account immediately, that she resign her interests in certain companies and trusts as well as stipulating that the payment to her would be reduced by her share of any valuation expenses which remained outstanding on her behalf. Overall the husband says this offer would have allowed the wife to retain assets to the value of $6,152,600 plus 100 per cent of the net proceeds of sale of the two US properties.
This offer was said to be relied upon on the question of costs and was open to the wife for a period of 14 days. The wife rejected this offer also.
The fourth and final offer - 18 September 2019
On 18 September 2019 the husband made a “final offer” to the wife which was a reiteration of an offer that had been made by senior counsel some three weeks earlier and included a balance sheet. This offer was made after the final hearing had commenced in June 2019, and before the final hearing resumed in February 2020. This final offer proposed that the wife retain 40.7 per cent of an asset pool said have a total value of $15,932,090.
This offer proposed that the wife receive assets to the value of $6,152,600 plus 40 per cent of the net proceeds of all of the US properties. It would have seen the wife receive her keep of certain assets valued at $1,498,000, her superannuation of $654,100, a superannuation split of $1.2 million and a cash payment of $2.8 million (which may have been reduced after certain valuation expenses were accounted for). The offer noted it would be relied upon on the question of costs and that the offer was open to the wife for seven days.
As has been mentioned, the final orders provided for the wife to receive 32.5 per cent of the asset pool, prior to any adjustment, and 35 per cent after an adjustment. The husband submits that pursuant to the final orders of 24 June 2021 the wife has received on a percentage basis less than she would have received under any of the offers made by the husband, and on a dollar value basis, more than she would have received under the husband’s earliest offer in 2018, but less than she would have received under the husband’s later three offers.
Mr AB otherwise annexed to his affidavit letters between the solicitors, the husband’s signed costs agreement with Lander & Rogers dated 16 December 2015, an account summary of the entire costs incurred by the husband from his initial conference with his solicitors on 29 January 2016 until 30 June 2021, correspondence in relation to the mediations that took place, and invoices of the husband’s payments to other law firms that are also sought to be recovered from the wife. Up until 21 July 2021 the husband has apparently spent $881,526.17 in legal fees since his engagement of his solicitors on 16 December 2016.
Other evidence
The husband also relies upon his affidavit filed 10 September 2021. As has been mentioned, the wife objects to the husband relying on this affidavit. She says that if the husband is permitted to rely on the affidavit she will be denied procedural fairness in circumstances where orders made on 29 July 2021 specifically granted her an opportunity to file material in response to the case brought against her. She says that she answered the case as contained in the affidavit of Mr AB. In response the husband says that the affidavit of Mr AB was limited to evidence of offers to settle the proceedings, the quantum of the husband’s legal costs and the wife’s conduct in the proceedings. He submits that the wife not only responded to that affidavit but that she went further to adduce evidence of other matters, including the parties’ purported financial circumstances, evidence of the sale of the US properties, and her asserted lack of knowledge of the share values. He says as the wife had the opportunity to respond to Mr AB’s affidavit and put additional evidence before the Court, the only procedural fairness that would be denied is if the husband was not able to respond to those new matters.
DETERMINATION
In the circumstances of this case, and having particular regard to the considerations in ss 117(2A)(c), (e) and (f) of the Act, I accept the husband’s submission that there is justification for a departure from the usual rule that the parties to proceedings under the Act shall bear their own costs, and I consider that it would be appropriate to make an order for costs in the husband’s favour.
For the reasons that follow I am satisfied that the husband should have his costs of the proceedings incurred from 7 August 2019 (being the lapse of the second offer that was made by the husband to the wife), calculated on a party/party basis in an amount to be agreed and, in default of agreement, to be assessed. Additionally, the husband should have costs in the sum of $5,847.05, being the wife’s half share of the mediator’s costs for the second mediation on 13 February 2019.
Offers of settlement
The fact that there were four offers put by the husband to the wife throughout the proceedings is highly relevant on the husband’s application for costs: s 117(2A)(f) of the Act. The contents of these four offers have been set out above.
On a percentage basis, the wife would have been better off had she accepted any of the last three offers put to her rather than proceed to trial. Under the first offer, the wife would have received the same percentage had she accepted the offer or proceeded to trial (taking into account the adjustments made at trial). On a dollar value basis, the wife would have been in a better position had she accepted the offers rather than proceed to trial on all but the first offer. I do not accept the wife’s claim that her reason for not accepting the offers was because she took issue with the calculation of the value of the asset pool, and that she was not in a position to consider the offers due to the paucity of the husband’s disclosures. As noted at [266] of the Court’s reasons for judgment of 24 June 2021, throughout the proceedings the wife has consistently asserted that the husband has not been transparent in relation to the parties’ asset pool, yet these allegations were effectively abandoned at trial with the husband not being cross examined on them. The husband’s alleged non-disclosure was rejected, and the same considerations are relevant here. I do not accept the wife’s claim that she could not properly consider the husband’s offers due to the husband’s lack of disclosure and her uncertainty as to the value of the asset pool.
Therefore, I consider that the wife was wholly unsuccessful in her case at least from the time of the second offer. This a significant factor in my decision to award costs to the husband from the date of the second offer: s 117(2A)(e) of the Act.
The second offer was made by the husband to the wife on 10 July 2019 and while it is not clear for how long this offer was open, I proceed on the basis that this offer was open until the making of the third offer, namely until 7 August 2019. Therefore I consider that the husband’s entitlement to costs should run from this date.
The wife’s failure to accept the husbands last three offers is the principal reason for a costs order being made against her. As has been noted, it is well accepted that any one, or any combination, of factors set out in s117(2A) of the Act can be the basis on which the Court could make a costs order. Further, there is nothing to prevent any factor being the sole foundation for an order for costs being made: Baum at [11]; Fitzgerald at [41].
Conduct of the wife
I am also satisfied, more generally, that the conduct and attitude of the wife throughout the proceedings support the making of an order for costs against her: s117(2A)(c) of the Act. This conduct has been outlined in the Court’s judgment of 24 June 2021, particularly at [264] to [283], and it is unnecessary to repeat it here.
While it is correct that at [283] of the Court’s reasons for judgment it was said that were it not for this unsatisfactory conduct of the wife a higher adjustment in her favour may have been appropriate, it is the case that all s 75(2) factors were taken into account and this was not the only factor considered. Further, I am satisfied that the wife’s conduct is one of multiple factors considered in the current costs application, and therefore its consideration would not amount to double counting.
Financial position of the parties
The wife submits in her response that the parties’ financial positions are yet to be determined in circumstances where there is an appeal against the final orders, and therefore that it is not possible to know what the financial position is for the purposes of this costs application. While in one sense it is true that the financial positions of the parties’ will not be finally known until such time as the appeal is heard and determined, I am satisfied that regardless of the outcome of the appeal the wife is in a respectable financial position and is able to meet an order as to costs. Therefore her current or future financial position should not stand in the way of a costs order against her: s 117(2A)(a) of the Act.
Mediation costs
The husband also seeks that the wife pay her half share of the costs of the mediation of 13 February 2019, in the sum of a $5,847.05. I am satisfied that an order for costs in this amount should be made.
While I acknowledge that the husband was required to provide further documentation to aid mediation for the second session, I am not satisfied that this leads to a conclusion that the husband did not engage satisfactorily in the first mediation. It follows then that both parties should bear their own costs of the mediation.
Time for the payment of costs
The wife contends that should any costs order be made in favour of the husband, that the payment of such costs not be required until no earlier than 30 days after the determination of the appeal.
In circumstances where an appeal has been heard and the parties are awaiting the determination of the Full Court, I accept that the wife’s proposal that any order for costs should not be required to be met before the outcome of the appeal has merit. On this basis there will be an order that the payment of costs is to be made within 30 days of the making of orders in the appeal, subject to any order of the Full Court to the contrary.
ORDERS
There will accordingly be orders as set out at the commencement of these reasons.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 5 April 2022
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