Holbert and Holbert (No 2)

[2018] FamCA 723

FAMILY COURT OF AUSTRALIA

HOLBERT & HOLBERT (NO 2) [2018] FamCA 723

FAMILY LAW – COSTS – where court critical of wife’s solicitors yet application for costs is made against wife – Not sufficient basis to say it is just to depart from s 117.

Family Law Act 1975 (Cth)

Holbert & Holbert [2018] FamCA 410
Prantage & Prantage [2013] FamCAFC 105

APPLICANT: Mr Holbert

RESPONDENT: Ms Holbert

FILE NUMBER: MLC 2024 of 2018

DATE DELIVERED: 12 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written Submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT:	Coote Family Lawyers
SOLICITOR FOR THE RESPONDENT:	Scanlan Carroll Pty Ltd

Orders

1. The application by the husband for costs as set out in his counsel’s written submission filed on 19 June 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holbert & Holbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2024 of 2018

Mr Holbert

Applicant

And

Ms Holbert

Respondent

REASONS FOR JUDGMENT

1. On 6 June 2018, the court made orders in an interlocutory application after a hearing in the Judicial Duty List.  The substance of the orders was that the wife had to return computer files to which she had access because they belonged to the husband notwithstanding the computer seemed to be a family one.  The computer files were said to contain not just private information but confidential as well.

2. The focus of the hearing however was not on the wife so much as on her solicitor.  The husband’s application was:

   [Wife’s solicitor] of Scanlon Carroll Lawyers be restrained from continuing to act on behalf of the wife in these proceedings.

3. In respect of that proposed order, the husband was unsuccessful.  There can be no doubt however that the attitude of the wife was blasé and I found the conduct of the solicitor added to the confusion.  At paragraph 24 of the reasons I said:

   It was submitted that the solicitor should have attempted to find out what had occurred rather than have taken the blunt position she did…I am uncomfortable with the solicitor’s view that these were matters for the wife who was responsible for the instructions.

4. My consternation about the attitude of the solicitor is self-evident from reading the reasons [2018] FamCA 410.

5. Notwithstanding that, this is an application for costs by way of order against the wife.

6. In my view having regard to the focus of the…