HODGES & ROSE

[2015] FamCA 104

FAMILY COURT OF AUSTRALIA

HODGES & ROSE [2015] FamCA 104

FAMILY LAW – Costs

APPLICANT: Mr Hodges

RESPONDENT: Ms Rose

FILE NUMBER: MLC 1454 of 2013

DATE DELIVERED: 13 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Paterson

SOLICITOR FOR THE APPLICANT: JH Legal

THE RESPONDENT: In person

Orders

1. That all extant applications are noted as being withdrawn.

2. That the wife pay the husband’s costs thrown away this day and fixed in the sum of $1320.

3. That the payment of the costs be stayed for a period of three months from this date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hodges & Rose 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 1454 of 2013

Mr Hodges

Applicant

And

Ms Rose

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the husband against the wife, and the only costs that are sought are $1320, being counsel’s fees for today.  That seems to me to be within the scale for a hearing of this nature, in any event.  This is the end of a long-running saga of a property and parenting dispute between these parties that was resolved by judgment some months ago in 2014.  There were property orders, and it seems that they weren’t complied with.   The reasoning behind that does not matter, but the husband brought an application on 11 December for enforcement. 

2. Agreement was reached at the hearing on 15 December that the parties would sort those matters out by 22 December, and on the basis that it was sorted out between them on 22 December, they had leave to withdraw the application for enforcement.  The hearing on the 22^nd was ultimately vacated because the settlement went through and the provisions of the order were satisfied. 

3. In the orders I made on 15 December, I indicated that if there was a dispute about costs then outstanding as a result of the enforcement application, that was to be fixed for hearing on 13 February.  My attention has been drawn to some correspondence dated 11 and 12 February in which Mr Hodges indicated that he was not going to seek costs, and therefore he wanted to vacate the hearing.  Ms Rose opposed that, and therefore the matter remained listed.

4. The basis behind the opposition to it being withdrawn was that there were outstanding matters from her perspective, unrelated to the enforcement.  Back on 15 December, I made an order that all parties have leave to file and serve such further applications and affidavits as they are so advised.  As at 10 o’clock this morning, no such application was filed.  Therefore, Mr Hodges has engaged counsel unnecessarily and the matter has been a pointless exercise today.

5. Section 117 of the Family Law Act provides that in proceedings in this Court, each party shall bear their own costs unless there are circumstances that justify a departure from that principle. If the Court considers there is such a justification, the Court must take into account the matters in section 117(2A) of the Act. Here, there was an opportunity to avoid litigation.

6. Section 117(2A) requires the Court to take into account such matter s as the financial circumstances of the parties. As I recall it, there is a fairly significant house in this case, and there is certainly some money. It could not be suggested that either party is impecunious. The conduct of the parties is really the conduct as litigants, and in this case, for the reasons I have just outlined, the wife has caused the problem herself. There are no legal aid considerations here, so I see no reason why the public purse should be affected. This is a case where there is, clearly, a justification for an order for costs. The quantum is sensible and reasonable, and I make an order accordingly.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 February 2015.

Associate: 

Date:  27 February 2015