Hawkins and Roe (No 2)

[2010] FamCA 1196

FAMILY COURT OF AUSTRALIA

HAWKINS & ROE (NO. 2) [2010] FamCA 1196

FAMILY LAW – COSTS

APPLICANT: Ms Roe

RESPONDENT: Mr Hawkins

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 6502 Of 2008

DATE DELIVERED: 6 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 6 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith of Counsel

SOLICITOR FOR THE APPLICANT: Richard Gray & Associates

FOR THE RESPONDENT: The Respondent appeared on his own behalf

Orders

1. The Respondent Husband pay to the Applicant Wife the sum of $15,000.00 as and by way of costs such payment to be made over a period of 12 months by monthly payments.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6502 of 2008

MS ROE

Applicant

And

MR HAWKINS

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Roe for an order for costs against the respondent, Mr Hawkins, for a trial which took place over a certain number of days, in which it is alleged that the wife is indebted to her solicitors, both before me and her present solicitors to the amount of approximately $33,000.  See the affidavit of Richard Andrew Gray of 14 October 2010, as well as the submissions of Smith of counsel who appears on behalf of the applicant mother, at paragraph 33 thereof.  The mother has put before me evidence to show that she is not in a financially strong situation at all.  She has the responsibility of the children, and notwithstanding the fact she receives an amount of approximately $18,000 per year by way of child support, she is not, as I have said, in a very financially strong position at all.

2. On the contrary, it is alleged by the applicant mother through her counsel that the father, the respondent, is capable of paying her costs.  She points to the fact, particularly, that he is in receipt of a considerable income, something like 100 or 90-odd thousand dollars per year;  that he is in receipt of a car and a telephone;  that he does pay, admittedly, eighteen and a half thousand or thereabouts by way of child support, but that he is the owner of two properties, one in which he resides with his present partner – which the difficulty is the valuation in relation to that – and another investment property which the valuations of Mr G on the wife’s part and Ray White on the respondent father’s part are about equal at about 430,000. 

3. The difficulty is that the property in which he resides, there is a vast difference, which is quite rare, in valuation.  The valuer put forward by the applicant mother in a full valuation, Mr G, estimates that the property is worth around about 820 to 900, whereas the respondent’s valuer – which does not appear to be a total and full valuation – is around about 600, 640.  There was a difference of about 250,000 in respect of valuation, which, as I said, is quite rare.  Normally, you would expect some variation between 10 to 15 per cent, but not as high as this.  There does not appear, on the evidence before me, any other area in which the father could seek funding to enable him to pay the costs, albeit as I have already said in argument which I think are remarkably reasonable in all the circumstances, he is also indebted to MasterCard, I think it is, for something like $43,000.  His present partner no longer works and looks after the children.  He has made impassioned pleas about his looking after six children which, perhaps looking at it one way, might be right, but in another way, there is a considerable onus both emotionally, physically, and financially upon the mother to maintain the children the subject of these disputes, two of them. 

4. He has based his opposition to the order for costs on three headings:  whether, in fact, he was totally unsuccessful, a matter which I have to consider pursuant to the provisions of s 117;  whether he has the ability to pay;  and the third is whether, in fact, the offers which he allegedly made to the wife were so out of kilter with the final order that, in effect, he did not fail totally.  I am not particularly interested in either the first or third submissions.  I do consider that he was unsuccessful in his opposition to the application of the wife.

5. I have referred to my reasons for judgment, and I consider that he was a person who is very difficult to get on with, a bully, was selfish, and only wanted what he wanted and would not bend, as far as I was concerned in bending towards the children.  Consequently, I am not satisfied that he has other than been unsuccessful.  Secondly, I do not accept that his offer was very close to the mother’s.  I consider that the mother’s offer was generous.  In fact, it was so generous that I had – I mentioned this in my reasons – considered shortening the time, particularly in relation to the boy, I think it was, but that she generously conceded that it would be in the boy’s interests that the matter remain, in effect, as it was. 

6. The only argument he has, in my opinion, is that he financially is unable to pay.  I have to consider that.  The mother is in extreme difficulties, as far as I am concerned.  The father is in a better financial shape, albeit he is, at this stage, he says, financially strapped to pay it.  I consider that he does have the financial means to pay something towards the costs, but what amount?  Naturally, of course, I would make an order that such amount be paid off over a period of time.  There would not be an indebtedness to him within, say, a month or something of that nature.

7. Doing the best I can, I consider that he has the ability to pay the sum of $15,000 of and by way of costs to the mother and that such costs be paid over a period of 12 months with monthly payments.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell.  

Associate:     

Date:              21 January 2011