Hoddle and Hoddle

[2007] FamCA 769

FAMILY COURT OF AUSTRALIA

HODDLE & HODDLE [2007] FamCA 769

FAMILY LAW – COSTS

APPLICANT: Mrs Hoddle

RESPONDENT: Mr Hoddle

FILE NUMBER: PAF 2957 of 2003

DATE DELIVERED: 2 August 2007

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE: 26 July 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: King Cain Solicitors

SOLICITOR FOR THE RESPONDENT: Kenny Spring Solicitors

Orders

I make the following orders:

1. That all outstanding applications for costs herein are dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Stevenson delivered this day will for all publication and reporting purposes be referred to as Hoddle & Hoddle

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 2957  of 2003

Mrs Hoddle

Applicant

And

Mr Hoddle

Respondent

REASONS FOR JUDGMENT  

1. Mr Hoddle seeks an order that Mrs Hoddle pay his costs of and incidental to a lengthy trial, relating to parenting and property issues, which took place late in 2004.  The proceedings occupied 7 days, with orders being made on 9 March 2005.  The wife appealed against the orders for property settlement only.  Her appeal was successful and the Full Court made orders on 9 December 2005.

2. The husband quantifies his costs of these proceedings at $104,362, of which he has paid $40,452.  By agreement between the parties, $40,000 from the wife’s share of the net pool of property has been placed in a controlled monies account pending the determination of this application. 

3. Mrs Hoddle opposes the application for costs.  In addition, she seeks an order that Mr Hoddle pay her costs of and incidental to the present application. 

4. The statutory provisions which govern the determination of these two applications for costs are set out in section 117(2A) of the Family Law Act. I will consider each of the subsections thereof in turn.

   Section 117 (2A)(a)  the financial circumstances of each of the parties to the proceedings;

5. Mrs Hoddle is supported financially by her partner, Mr K.  The evidence at trial was that his annual income is approximately $66,000 before tax. 

6. Mrs Hoddle received net property to the total value of $202,000 as a result of orders of the Full Court made on 9 December 2005.  That being so, she has the capacity to meet an order for costs in favour of Mr Hoddle.

7. The evidence at trial was that Mr Hoddle receives a gross annual income of around $64,000.  He is provided with a company car and his employer contributes to a superannuation fund for his benefit.

   Section 117(2A)(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;

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

   Section 117(2A)(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;

9. Much was made by the husband, in the present application, of the way in which the case for the wife was conducted at trial.  Emphasis was placed on the so-called “incremental disclosure” by the wife of her proposal to relocate with the children from the central west of New South Wales to Queensland or southern New South Wales.  Complaint was made also of the volume and content of the affidavits filed in the wife’s case. 

10. Emphasis was also placed by the husband on the length of his cross-examination at trial and on the inflammatory nature of certain correspondence from the wife’s solicitor.  In addition, the husband stressed that certain relevant evidence was elicited from the wife only during cross-examination.  It was pointed out that she and her solicitor relied upon a diary for the purpose of preparation of her affidavit, thus a greater degree of accuracy and frankness might have been expected. 

11. It should be remembered that the husband sought a shared care arrangement for the three children, on an alternating fortnightly basis.  It was hardly surprising, therefore, that the wife adduced evidence of the power dynamics and nature of the relationship between the parties.  The sustainability of such a shared-care arrangement is dependent in part upon cooperation and communication between parents.

12. Much of the evidence now complained of by the husband was the subject of objection at the commencement of the trial.  In the context of the husband’s application for orders for an equal time arrangement, I decided to admit much of this evidence.  Ultimately, the husband made admissions as to a number of acts of violence and intimidation alleged by the wife.  Obviously, these matters were relevant to the best interests of the children. 

13. In the judgment I criticised the vitriolic, intemperate correspondence forwarded by the wife’s solicitor to the husband’s legal representative.  I cannot, however, identify any nexus between the length of the trial and this correspondence.  I would note that the battle between Mr and Mrs Hoddle seems to have continued for about 4 years following this correspondence.  Their file now occupies a large box.

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

14. This subsection is not relevant.

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

    Section 117(2A)(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;

15. Neither party was wholly unsuccessful in respect of either the property or parenting issues.  In respect of property, the offer which most closely coincided with the ultimate result was that of the wife dated 9 August 2004.  She then offered to compromise the proceedings on the basis the husband pay her $200,000 and that she transfer her interest in the former matrimonial home to him.  As said, she received $202,000 as a result of the orders of the Full Court.  The husband never offered to pay the wife more than $190,000, in exchange for the transfer of her interest in the former matrimonial home.

16. The wife was unsuccessful in her application to relocate the children’s residence to Queensland or southern New South Wales.  On the other hand, the husband failed to achieve an equal time arrangement.  He did not obtain all of the parenting orders set out in his offer dated 13 October 2004.

CONCLUSION

1. In my view, it is simplistic for the husband to suggest that the length and expense of the trial can be laid substantially at the feet of the wife.  Each of the parties must accept some responsibility for the intense, unpalatable and drawn-out aspects of the proceedings.

2. The parties each achieved mixed success, taking into account my orders and the orders of the Full Court.  Neither party made an offer which, if accepted, could have put an end to the proceedings in accordance with the orders ultimately made.

3. In these circumstances, I decline to make any order for costs in favour of the husband.  I refuse the wife’s application for her costs of these proceedings.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              July 2007