Harper and Harper

[2014] FCCA 311

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARPER & HARPER [2014] FCCA 311

Catchwords:
FAMILY LAW – Costs – application for costs on solicitor-client basis – application dismissed.

Legislation:

Family Law Act 1975, s.117
Federal Circuit Court Rules 2001, Sch 1

Penfold and Penfold (1980) 5 Fam LR 579
In the Marriage of Kohan (1992) Fam LR 245
In the Marriage of Munday and Bowman (1997) 22 Fam LR32
Rittman and Rittman (No.3) [2009] FamCA 1138

Applicant: MS HARPER

Respondent: MR HARPER

File Number: DGC 2522 of 2012

Judgment of: Judge Harland

Hearing date: By written submissions

Date of Last Submission: 16 December 2013

Delivered at: Darwin

Delivered on: 24 February 2014

REPRESENTATION

Counsel for the Applicant: Ms Williams

Solicitors for the Applicant: JH Legal Pty Ltd

Counsel for the Respondent: Mr Gates

Solicitors for the Respondent: South East Lawyers

ORDERS

1. That the wife’s application for costs be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DGC 2522 of 2012

MS HARPER

Applicant

And

MR HARPER

Respondent

REASONS FOR JUDGMENT

Introduction

1. Proceedings for property and parenting orders were commenced by the wife on 16 August 2012 with the matter proceeding to final hearing on 5 and 6 August 2013 in Dandenong.

2. Parenting issues were resolved by consent on the second day of the hearing and judgment in respect to property issues was delivered on 18 October 2013.

3. At the request of the solicitors for the wife by email on 14 November 2013, an order was made in Chambers on 19 November 2013 for the parties to file written submissions in respect to the issue of costs.

4. The wife e-filed written submissions on 2 December 2013.

5. The wife seeks an order from the Court that her lawyer-client costs be paid by the husband from 26 March 2013 to the conclusion of the trial on 6 August 2013. The sum she seeks is $29,115.16. She is really seeking costs on an indemnity basis and addresses that in her submissions. The wife does not seek costs in accordance with the Federal Circuit Court Rules 2001 in the alternative.

6. The husband e-filed written submissions on 16 December 2013.

7. The husband seeks an order that each party bear his or her own costs.

8. Unfortunately the submissions were not brought to the attention of my chambers until late January 2014.

9. The wife’s submissions are flawed. Her submissions make no attempt to address the findings in the judgment which were not in her favour.

10. Her submissions also impermissibly sought to introduce new evidence. I agree with the respondent’s submission on this point. I have disregarded that aspect of the wife’s submissions.

Legal Principles

1. In order for the Court to make a costs order in favour of the parties, there must be justifying circumstances as set out in section 117(2A) of the Family Law Act 1975. I will address each of these matters in turn

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

1. The asset pool is fairly modest. I refer to my primary judgment for details of the assessment pool and the property adjustment. I will not repeat those details here.

(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid

1. Neither party is in receipt of legal aid.

(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. I made findings against both parties in my primary judgment. Again I will not repeat them here.

2. The wife claims that the husband delayed the proceedings and increased her costs. She does not specify how except with respect to his accommodation. There is certainly nothing to suggest that the time it took for the hearing to be reached was unusual in the Melbourne registry. I dealt with the accommodation issue at paragraph [37] of my primary judgment. The fact that the husband changed his mind about wanting to keep the former matrimonial home does not amount to misconduct. I already dealt with respect to his conduct over his accommodation.

3. Significantly the wife ignores the findings I made with respect to her own non-disclosure. The wife’s submissions are unbalanced and fail to deal with the whole of the evidence. There is no justification to say that the husband at least in part refused her offer maliciously to cause her further strain. That is pure speculation. Submissions should be based on the evidence.

(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.

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

1. Neither party achieved what they sought in the orders they relied on for the final hearing.

(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. The wife seeks costs on the basis of making an offer dated 2 November 2012 which is annexed to her submissions. The pool was slightly different to the final asset pool at the final hearing. The husband says that wife’s offer was a bundled offer involving parenting issues as well.

Conclusion with respect to costs

1. The decision as to whether by making an order for costs is an discretionary one. It is a departure from the ordinary rules that each party pay his or her own costs.

2. In Penfold and Penfold (1980) 5 Fam LR 579 the High Court found that the fact that the wife to establish the husband’s true financial circumstances due to his non-disclosure was enough to justify a circumstance for the purposes of section 117(2). In this case I made comments about both parties’ conduct in this regard.

3. It is clear that making a costs order in favour of a party is departing from the ordinary rule that the parties should pay their own costs. Schedule 1 to the Federal Circuit Court Rules 2001 set out a scale of costs.

4. I now have to consider whether or not to order costs on an indemnity basis. It is important to note that in family law matters, making a costs order is departing from the normal practice. In the Marriage of Kohan (1992) Fam LR 245 the Full Court referred to the scale of costs being normal rates of charges.

5. Indemnity costs are only ordered in exceptional cases. See In the Marriage of Munday and Bowman (1997) 22 Fam LR32. The applicant referred to Rittman and Rittman (No.3) [2009] FamCA 1138 in addition to other cases addressing indemnity costs. Rittman’s case dealt with section 117AB which has been repealed.

6. The circumstances in this case are in no way exceptional. Indemnity costs are not justified. Nor are solicitor-client costs. I note I have not been asked to make an order in accordance with the Federal Circuit Court scale.

7. I am not satisfied that it is appropriate to make an order for costs in this case based on the wife’s offer of settlement. Neither party has sought costs with respect to the application of costs. The parties should pay their own costs of this application.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  24 February 2014