Harris and Hines

[2007] FamCA 1204

FAMILY COURT OF AUSTRALIA

HARRIS & HINES [2007] FamCA 1204

FAMILY LAW – COSTS – Husband fails to be cooperative in respect of financial matters – Offer of settlement in more favourable terms than final orders

Family Law Act  1975 (Cth)

APPLICANT: Ms Harris

RESPONDENT: Mr Hines

FILE NUMBER: MLF 30 of 2006

DATE DELIVERED: 24 September 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Kell Moore Solicitors Pty Ltd

Orders

Upon reading the written submissions of the wife filed 11 September 2007 and there being no response from the husband

IT IS ORDERED:

1. That on or before 29 October 2007, the husband pay to the wife the sum of $1320 being approximately one half of the valuation fees of the court-appointed single expert witness.

2. That on or before 29 October 2007 the husband pay the sum of $1630 being the costs fixed on 28 June 2007.

3. That on or before 29 October 2007, the husband pay the wife’s costs of and incidental to her application for property settlement filed 11 April 2006 as and from (and including) the letter dated 20 February 2007, such costs to be agreed between the parties and failing agreement as determined according to the Family Law Rules 2004 by the Registrar including the costs of the written submissions filed 11 September 2007.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 30 of 2006

MS HARRIS  

Applicant

And

MR HINES  

Respondent

REASONS FOR COSTS JUDGMENT

1. In this matter I gave a substantive judgment whilst sitting in Albury on circuit.  Orders were made on 29 August 2007. I shall not repeat the details of the orders however I made it abundantly clear that the trial had been made significantly more difficult than it should have been having regard to the fact that the husband failed to make proper or adequate disclosure of his financial position. It is timely to recall that the husband conducted his own case throughout the hearing but that he had been represented by lawyers up until the early part of 2007. The fact that he was so represented in the early stages of the litigation is another basis to say that his lack of cooperation made the process of the wife in conducting these proceedings much more difficult than it should have been.

2. Section 117 of the Family Law Act1975 (Cth) (“the Act”) sets out that each party should pay their own legal costs unless the Court deems that it is just to make an order otherwise. In determining whether an order should be made and if so what, s 117 goes on to set out the matters to be taken into account.

3. In the orders that I made on 29 August 2007, I made specific provision for the parties to raise any issues of costs by written submission to be filed by no later than 4.00pm on 14 September 2007.  The wife filed her written submission on 11 September 2007 and I am satisfied that the husband was served with a copy of that submission.  I made provision for any responding material to be also filed but the husband has chosen not to do so.

4. In her submissions in relation to costs, the wife seeks three things.  They are:

   (a)the reimbursement of expenses she incurred in respect of engaging the valuer whose valuation amounts were used by agreement during the hearing;

   (b)the legal costs associated with the hearing on 28 June 2007 which I conducted in which the husband participated and ultimately I fixed the sum of $1630 leaving the question of whether the husband should pay those or whether the wife should pay her own costs; and,

   (c)the costs associated with the final hearing having regard to the way in which it was conducted and the findings and the orders that

5. Dealing firstly with the proceedings in Melbourne on 28 June 2007, the husband resisted the appointment of a valuer necessitating the wife making the application that she did. The husband asserted that there was no need for the valuation and indicated that he had had a discussion with the wife and that there was no necessity for the valuation exercise to be undertaken at all. I am quite satisfied that that was not the case not only from what I was told at the time by counsel representing the wife but also reading the affidavit of the solicitor for the wife filed with the submission. More importantly, the proceedings were conducted upon the basis that the valuation was not challenged. Accordingly, in respect of two out of the three items to which I have referred, I think it is appropriate that the husband pay one half of the valuation fee and that he pay the costs of the wife which I fixed on 28 June 2007. 

6. The costs of the trial itself are a different issue.

7. Dealing firstly with the question under s 117, I am quite satisfied that it is just in the circumstances for there to be an order for costs. I so find because of the fact that the husband prolonged the proceedings, did not cooperate in respect of making full and frank disclosure and for reasons to which I shall turn, did not make a serious attempt to resolve the matter either prior to the hearing or at the hearing itself. In the circumstances, it is not appropriate that the wife bear all of her costs.

8. In taking into account the matters that I am required to under s 117(2A), I take into account that as I have previously indicated in the judgment, there is a distinctly different financial position between each party but that the husband is in the stronger financial position. The difficulty with that is exacerbated by the husband’s lack of cooperation in respect of material.

9. I am advised by the solicitor for the wife through her submission that she has not been in receipt of a grant of legal assistance. 

10. I have already made mention of the fact that the husband failed to cooperate in a proper way during the proceedings and my various findings in paragraphs 33 to 38 indicate in very clear terms how that exacerbated the wife’s difficulty in presenting the case for determination. 

11. Having read the submission to which I have referred, it appears that the wife offered to settle the proceedings by letter to the husband’s then solicitor. That occurred in February 2007.  Had the husband accepted those terms, he would have been better off than he had been by virtue of the orders that I have made.  Although the terms of the offer are not in dollar terms, I had ample opportunity during the hearing to hear unopposed evidence about the quantum of the various assets. I am able to conclude from comparing the pool of assets referred to in my reasons for judgment with the offer of settlement that the wife was prepared to settle in February 2007 for terms less favourable than those which I ultimately ordered.  In a property case such as this having regard to the lack of candour on the husband’s part, the offer of settlement is of considerable significance.

12. Having found that it is just to depart from the rule that each party pays their own costs and having taken into account all of the matters required under the section, I propose to make orders that the husband pay the sums to which I have earlier referred and the costs of the wife of and incidental to her application for property settlement as and from 20 February 2007. If the costs are not agreed upon as determined by the scale set out in the schedule to the Family Law Rules, they will have to be determined on the taxation process no doubt at considerable more expense to the husband.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  24 September 2007