Handley & Tranter (No. 2)

[2007] FamCA 1161

FAMILY COURT OF AUSTRALIA

HANDLEY & TRANTER (NO. 2) [2007] FamCA 1161

FAMILY LAW – COSTS – Between parties

Family Law Act 1975 (Cth)

APPLICANT: Ms Tranter

RESPONDENT: Mr Handley

FILE NUMBER: BRF 1989 of 2005

DATE DELIVERED: 26 September 2007

PLACE DELIVERED: Sydney Registry

JUDGMENT OF: Moore J

HEARING DATE: 3 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wiltshire

SOLICITOR FOR THE APPLICANT: Frank Carroll

THE RESPONDENT HUSBAND: Appeared on his own behalf

Orders

1. On or before one (1) month from the date of these orders, or such further time as may be agreed, the husband is to pay to Legal Aid Queensland by way of contribution to the wife’s costs of the proceedings the sum of $11,880. 

2. The applications of the husband set out in paragraphs 2, 3 and 4 of the Response filed 28 August 2007 are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Handley & Tranter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRF1989 of 2005

MS TRANTER

Applicant

And

MR HANDLEY

Respondent

REASONS FOR JUDGMENT

Applications

1. To be determined are applications for costs arising from final orders made on 24 April 2007 in parenting and property proceedings. 

2. There were other applications dealt with summarily at the outset.  The slip rule was brought in aid of an order for the transfer of jointly owned shares to the husband’s sole name, though it was said the requisite forms had been signed by the wife.  I refused to make an order sought by the wife for the cancellation of a life policy.  Quite apart from not having sought such an order in the substantive proceedings, it is a whole of life policy with no surrender value and therefore it is not ‘property’ as defined by s 4 of the Act.  In any event, absent the application of the slip rule, which does not apply, the power to make orders pursuant to s 79 in this case was exhausted by the orders of 24 April.  Further, proposed orders 5 - 15 of the husband’s response, being related to variation of the parenting orders, were re-directed to the Brisbane Registry to be heard in the usual course according to arrangements advised by that Registry. 

Orders sought

1. The wife seeks costs according to her amended application filed 12 July 2007; namely, the husband to pay a contribution of $20,000 towards her obligation to pay Legal Aid Queensland $23,759.  The orders sought by the husband are to be found in his response filed 28 August 2007.  They are:

   ‘2. That the mother bear her own costs;

   3. That the mother pay the father:

   i.$2000 to reimburse the father’s legal fees from unnecessarily protracted property negotiations.

   ii.$13123 (=$83200+$25173 - $95250) to cover the loss due to the property not being settled as a result of the conciliation conference on 8 August 2005.

   iii.That the father be compensated $TBA (determined by judge) to cover the time loss and stress suffered (etc) due to the frivolous costs application.

   iv.That the father be reimbursed all expenses (eg travel, legal, telephone, postage) incurred by the father as a result of this court action.

   4.        That the mother be fined by the court for the costs proceeding.’

2. Whatever might be said of the drafting of the husband’s claims in 3, the claim in 4 can be dismissed summarily as having no basis in law. 

Evidence

1. To support her claim the wife relied on two affidavits sworn by her solicitor, Ms Fairon, filed on 28 May and 12 July 2007.  The husband relied on an affidavit he swore and filed on 22 August 2007.  The wife replied to that by an affidavit she was given leave to file at the outset of the costs hearing.  The husband had not annexed to his affidavit a bundle of documents he wished to tender and arrangements were made for him to do so through the Brisbane Registry, with a copy being provided to the wife’s counsel who was given leave to make any further submissions on behalf of the wife as a result by lodging them with the court within 7 days.  Further written submissions were subsequently received.  That opportunity having been provided, objections to the receipt of the documents into evidence are dismissed and the bundle is marked exhibit 1 as part of the record. 

2. That said, much of the content of the husband’s affidavit was irrelevant to the question of costs and agitated his view of the merits of the case now concluded.   Many of the documents provided in exhibit 1 were also irrelevant to the question of costs. 

The law

1. The making of costs orders comes under the provisions of s 117 of the Family Law Act 1975 (Cth). It is the general rule under s 117(1) that each party is to bear his or her own costs; however, by s 117(2) the Court may make such order as to costs as it considers just if it is of the opinion that there are circumstances that justify it in so doing. In considering what order (if any) should be made the Court is required to have regard to the matters referred to in s 117(2A).

2. The workings of s 117 were authoritatively discussed by the High Court in Penfold & Penfold (1980) FLC 90-800. In their joint judgement at p 75,053 the majority [Stephen, Mason, Aickin and Wilson JJ] addressed a submission to the effect that the primary judge had erroneously exercised the discretion which subsection 117(2) conferred, the following four points being made in the course of that submission:

   ‘(1) that the general rule enunciated by sec 117(1) is that each party should bear his own costs;

   (2) that, in order to take a case out of the general rule, sesc. 117(2) requires that a judge should find and specify the particular circumstances which justify a departure from that general rule;

   (3) that the judge failed to specify particular circumstances; and

   (4) that, in any event, there were no circumstances which justified the making of the order.’

3. Their Honours dealt with this as follows:

   ‘It is an accurate description of s 117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s117(2).  As sub-s (1) is expressed to be subject to sub-s (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order.  Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs.  Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117(2) in “a clear case”.

   Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order.  It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication.  Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue.  The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised: Kent & Kent (1970) 92 WN (NSW) 503 at 505.  Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.’

Ss (2A) factors

1. Turning to this case, the parties’ respective financial circumstances are reflected in the reasons for judgment and are to be seen in the context of the orders made at that time.  The husband is in a better financial position than the wife, not only as to capital but also income. 

2. The wife has been in receipt of assistance by legal aid.  She is required to pay Legal Aid Queensland the sum of $23,759.  The husband has represented himself for the most part, though at an earlier stage he was represented by solicitors.  He incurred comparatively minimal costs while legally represented. 

3. No conclusion adverse to the wife’s claim flows from the submission of the husband related to her election to be legally represented.  It is not unreasonable that she would choose not to deal with him directly.  Similarly, the husband is taken to be entitled to choose to represent himself.  As for the submissions related to supposed change in his attitude from the time he was legally represented to when he took over representing himself, that event was not established as underpinning the husband’s attitude at any time. 

4. That is not to say conduct in relation to the proceedings is irrelevant.  It is a matter of some weight.  The manner in which the husband conducted his case was prolix and the material he filed was over detailed.  The need to respond undoubtedly increased the wife’s costs. 

5. Nothing of any note arises from considering whether the proceedings were necessitated by the failure of a party to comply with previous orders, nor whether either has been wholly unsuccessful in the proceedings. 

6. The wife made offers related to the property proceedings, the first being as early as her solicitors’ letter of 3 January 2006 and on 1 March 2007, shortly prior to the commencement of the hearing, there was filed on her behalf a further written offer related to the property proceedings.  The terms of those offers are expressed in clear and unambiguous terms, as required [see Harris (1987) FLC 91-822] and the purpose and effect of offers of settlement as discussed in Robinson & Higginbotham (1991) FLC 92-209 [Nygh J] and Pennisi & Pennisi (1997) FLC 92-774 [Full Court - Nicholson CJ, Barblett DCJ and Faulks J] is borne in mind. That is to say, an offer to settle by paying greater or equivalent than the outcome achieved does not necessarily lead to a costs order, an offer to pay marginally less than what was achieved does not mean it is not a factor to be taken into account, the closer the offer to the order the more weight should be given to this factor, and offers are to be seen in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances.

7. While the offers dealt with the property proceedings, there were also parenting proceedings to be determined and it is recognised that property settlement is more usually determined after the parenting proceedings because the outcome of the former is to some extent reliant upon the outcome of the latter.  That is not to say the fact of an offer to settle property proceedings cannot be taken into account when there are conjoint proceedings.  Plainly it can be and must be evaluated in the context of the case as a whole.  In this case, the reference by the husband to what he would have paid to the wife had the matter resolved after the conciliation conference is not to his advantage when the total bottom line is considered.  I also take into account the fact that the offers made by the wife differ in some respects from the orders which included a component of her entitlement being met through superannuation split. 

Conclusion

1. Viewed overall, there are justifying circumstances here for an order in the wife’s favour. The respective financial circumstances of the parties and the additional costs incurred by the wife in having to deal with the unnecessarily prolix and detailed manner in which the husband conducted the proceedings are circumstances that justify the making of a costs order in her favour. 

2. There are no circumstances to justify the orders sought by the husband as set out earlier, including his application for the costs he paid to his solicitors to be reimbursed as well as his other claims against her. 

3. In my opinion, a just order would be for the husband to pay one half of the costs the wife is obliged to pay to Legal Aid Queensland, rounded to $11,880.  As for time for payment, one month is the more usual period allowed and there is nothing to warrant an extension of that period.  If further time is required, the husband can seek agreement to an extension. 

4. For those reasons, the orders are as set out earlier. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate

Date: 26 September 2007