Halstron & Halstron

Case [2022] FedCFamC1F 211

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…

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AGLC
Halstron & Halstron [2022] FedCFamC1F 211
Case
[2022] FedCFamC1F 211
Decision Date

CaseChat Overview and Summary

The matter of Halstron & Halstron was heard in the Federal Circuit and Family Court of Australia. The husband, Mr Halstron, sought a costs order against his wife, Ms Halstron, in the context of their family law proceedings. The wife had been wholly unsuccessful in her case and had appealed to the Full Court. The husband had made four offers of settlement to the wife throughout the proceedings, all of which were rejected by her. The wife's reasons for rejecting the offers were found to be unmeritorious. The legal issues before the court were whether a costs order should be made in favour of the husband, and if so, when the costs should commence and when payment should be made. The court was also required to decide whether the determination of the costs order should be stayed pending the outcome of the wife's appeal in the Full Court.

The court found that the husband was entitled to a costs order against the wife, given her failure to accept any of his offers of settlement and her unmeritorious reasons for doing so. The court also held that the wife's appeal did not provide a valid reason to stay the determination of the costs order. The court ordered that the wife pay the husband's costs of the proceedings incurred from 7 August 2019 on a party/party basis. Payment of the costs was to be made within 30 days after the determination of the wife's appeal by the Full Court and was subject to any order of the Full Court to the contrary. The court further ordered that the wife pay her half share of the mediator’s costs for the second mediation held on 13 February 2019.

The final orders made by the court were that 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 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 the sum of $5,847.05 being her half share of the mediator’s costs for the second mediation on 13 February 2019. The wife's Response to an Application in a Case filed 27 August 2021 was dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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: 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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