Harrison & Harrison (No. 2)

[2007] FamCA 516

FAMILY COURT OF AUSTRALIA

HARRISON & HARRISON (NO. 2) [2007] FamCA 516

FAMILY LAW - COSTS - No costs order made

APPLICANT: MR HARRISON

RESPONDENT: MRS HARRISON

FILE NUMBER: PAF 1872 of 2005

DATE DELIVERED: 5 June 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Stevenson J

HEARING DATE: Written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Newnhams

COUNSEL FOR THE RESPONDENT: Mr Dura

SOLICITOR FOR THE RESPONDENT: Levy Partners

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1872 of 2005

MR HARRISON

Applicant

And

MRS HARRISON

Respondent

REASONS FOR JUDGMENT

1. On 28 February 2007 I delivered judgment and made orders in contested proceedings relating to property settlement and parenting issues between the parties.  By an application filed on 27 March 2007 the husband seeks an order that the wife pay his costs, from the date of an Offer of Settlement made on 24 January 2007 up to and including the date of my orders.  Additionally, he seeks that the wife pay his costs of the present application. 

2. The matters relevant to the determination of the husband’s application for costs are set out in section 117(2)A.  I will consider the application within the framework of such factors.

   section 117(2)(a):  the financial circumstances of each of the parties to the proceedings;

3. As a consequence of my orders, the wife borrowed $560,000 in order to achieve the following:   

   ·    a refinance of the L property

   ·    repayment of a portion of a debt to the husband’s mother

   ·    a contribution to the selling costs of the Y property

   ·    a payment to the husband of $18,850. 

   The wife is liable to make monthly mortgage repayments of $3,439 on an interest only basis or $3,800 on a principal and interest arrangement.

4. Pursuant to these orders, the husband would have received the net proceeds of sale of the Queensland property, together with a cash payment of $18,850 from the wife.  In addition, he retained savings amounting to around $5,000.  Accordingly, he should have liquid reserves of approximately $190,000.

   section 117(2)(b):  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

5. Neither party was in receipt of a grant of legal aid.

   section 117(2)(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;

6. In my opinion each of the parties adopted an unreasonable or unrealistic attitude in relation to certain issues, principally arising from the identification and valuation of the net pool of property.  In my ultimate determination, they each succeeded and failed in respect of some of these matters.

7. In my view, both of the parties adopted an unrealistic position in respect of the value of the interest of the wife in the C property.  These submissions were referred to in my judgment and will not be repeated here.  Suffice it to say that the husband urged a finding of a 50% interest on a basis which was untenable from the outset.  The wife urged a finding of a one quarter interest, against the evidence contained in the documents of title and on the basis of an allegation of trust in the absence of any corroborating material whatsoever. 

8. In my view, the husband took an unreasonable stance in relation to the value of the wife’s jewellery and household contents.  He insisted that she be held to an admission against interest in the first of two Financial Statements which was a higher estimate of the value of these items.  This submission ignored the wife’s evidence of a burglary at her home after she swore the first Financial Statement.  The husband could not dispute, in any meaningful sense, that these items were stolen from the wife.  I found that it was quite reasonable for her to have revised her assessment of the value of these items in light of the burglary.

9. The wife, in my opinion, took an unreasonable stance in relation to the debt to the husband’s mother.  I found that a liability of $7,892 existed and should be borne jointly by the parties.  Again, the evidence of the wife in relation to this alleged liability was referred to in my judgment and will not be repeated here.  It is sufficient to say that her evidence on this issue was unconvincing.

10. Neither party persuaded me to make findings in accordance with their submissions either in relation to contribution or section 75(2) factors.  Neither party’s submissions as to the identification and valuation of the net pool of property accorded with my findings.  I did not adopt the submissions of either the wife or the husband in respect of contribution or section 75(2) factors.

section 117(2)(d):  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

1. This factor has no relevance to the present application.

   section 117(2)(e):  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

2. It cannot be said that either party has been wholly unsuccessful in these proceedings.  My reasons for reaching this conclusion must be obvious from what I have said so far. 

   section 117(2)(f): whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

3. The husband placed heavy reliance upon an offer of settlement pursuant to section 117(C) which he made on 24 January 2007.  He submitted certain calculations which indicated that my orders produced a less favourable result for him than he would have achieved if the wife had accepted his offer.  In a strictly arithmetical sense, this submission is correct.

4. It is my opinion, however, that this circumstance was the product of an interplay of several factors.  I have referred already to the differences between the parties, in terms of the identity and value of the net pool of property.

   section 117(2)(g): such other matters as the court considers relevant

5. At all times the husband insisted on a sale of the L property, whereas the wife sought to retain the home.  The husband demanded a sale because, in his unqualified opinion, the single expert’s assessment of its value was “conservative”.  The wife succeeded in obtaining orders which permitted her to retain the L property.

6. There was a live issue as to parenting orders in relation to the parties’ son, which was resolved only during the course of the trial.  The offer made by the husband on 24 January 2007 in no way addressed the outstanding parenting issues.

7. For these reasons, I am not inclined to make an order for costs as sought by the husband.  The issues which are relevant for consideration, as is obvious from what I have said above, go further than the contents and effect of his written offer of settlement. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:  dp

Date:  5 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HARRISON & HARRISON