Harris and Harris (No. 2)

[2012] FamCA 531

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS (NO. 2) [2012] FamCA 531

FAMILY LAW – COSTS – Application for costs and response dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Harris

RESPONDENT: Ms Harris

FILE NUMBER: MLC 1562 of 2012

DATE DELIVERED: 13 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT: Kennedy Partners Lawyers

Orders

1. That the application for costs filed by written submission on 2 July 2012 by the wife and the response thereto by the husband filed on 12 July 2012 are both dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Harris (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1562  of 2012

Mr Harris

Applicant

And

Ms Harris

Respondent

REASONS FOR COSTS JUDGMENT

1. On 5 June 2012, I made orders in a contested interim financial dispute between the parties.  Those proceedings involved injunctive orders sought by both against the other but also a partial property settlement.

2. Having delivered judgment, I made provision for the parties to make applications for costs.  The wife’s submissions as to costs were filed on 2 July 2012 and the husband on 12 July 2012.

3. The wife sought that her costs be ordered on the basis that the parties reach agreement as to what those sums should be or that the costs be “taxed”.  For his part, the husband sought that each party bear their own costs or that if there was any order for costs at all, it should be that the amount be reserved for trial.

4. There were three issues in the hearing.  The husband wanted control of the sale of two properties in France.  He alleged that orders that had been made for the sale of those properties were not being carried out by the wife and he therefore sought the control.  For her part, the wife sought orders that the husband pay her $500,000 by way of a partial distribution of property to which the husband responded by agreeing that she should be allowed to have $200,000.  In addition, the wife sought injunctions precluding the husband from altering trusts and corporate entities structures.

5. I found that it was just and equitable to make the order for the payment of $500,000 in favour of the wife.  I declined to make the injunctions against the husband because I was not satisfied that he had acted inappropriately.  That is not to say that he had not but rather that the wife had not proved that he had. 

6. The husband’s application relating to the control of the sale of the French properties was also rejected on the basis that I could not be satisfied on the evidence that the wife was being obstructive.

7. Both parties agreed that the legislative power to make a costs order lay in s 117 of the Family Law Act 1975 (Cth) (“the Act”).

8. It was the wife’s submissions that there were circumstances to warrant the order for costs and when contemplating the relevant requirements, both parties had access to money, there were no legal aid considerations and the wife had been wholly successful.  The submission went on to say that an offer in writing had been made and it was annexed.  The offer made by the husband was that by way of partial settlement of property, he pay to the wife $250,000 but that he also receive a payment of $100,000 and there not be any further property settlement payment pursued at least on an interim basis.  There were also child issues involved and it was the wife’s position that the matter be reviewed by the Court after a family report had been prepared by Ms S.  The wife accepted the husband’s offer except for the conditions and hence, the wife’s rejection of the conditions amounted to a counter offer.

9. The husband’s submissions were along similar lines pointing out that the wife had not been wholly successful and then detailing the various steps that had been taken as set out in the court documents.  One submission related to matters that had occurred since the hearing and judgment but it is not appropriate that I should contemplate those as a basis to reserve the question of costs.  I am determining the matter on the basis of what was properly before the Court.

10. Section 117 of the Act provides that each party in proceedings shall bear their own costs unless there are circumstances that justify a departure from that principle. If the Court is contemplating a departure from that principle however, it must take into account the matters set out in s 117(2A).

11. In my view, there is no basis for me to find that there are justifiable circumstances here leaving aside the considerations in s 117(2A). The wife’s application was as much about the injunctive orders as it was about the partial distribution of property. She had clearly been content to accept less than that which she had sought. Her focus was on the money rather than on the injunctive orders.

12. The husband’s application arose out of things including having written inappropriately to an agent in France about the wife.  He too in my view had been premature in launching into litigation but at the same time, he was responding to the application of the wife. 

13. This was a case that should have been negotiated to a sensible conclusion and the conditional offers simply highlighted the entrenched positions of the parties.

14. I am satisfied there is no basis to depart from the principle in this case that each party should pay their own costs.  Both applications for costs are therefore dismissed.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 July 2012.

Associate: 

Date:  13 July 2012