Holbert and Holbert (No 2)
[2018] FamCA 723
•12 September 2018
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
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
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.
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.
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.
My consternation about the attitude of the solicitor is self-evident from reading the reasons [2018] FamCA 410.
Notwithstanding that, this is an application for costs by way of order against the wife.
In my view having regard to the focus of the husband’s application being the pursuit of an order for the removal of the solicitor for the wife, no order for costs should be made here as he was otherwise successful vis a vis the wife in obtaining the return of his private documents. There is a fine line here but I am very conscious of what the Full Court in Prantage & Prantage [2013] FamCAFC 105 said about examining the conduct for the purposes of s 117(2A) in particular, of a party as a partner in the marriage as against that of the litigant. In this case, the wife’s pursuit of the husband’s information was irrelevant to the substantive cause as she seemed to be intent on proving his infidelity.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs unless there are reasons that justify a departure from that principle. The starting point therefore is that each party should be responsible for their own costs unless there is something out of the ordinary. In respect of the justification for departure from that principle, the submission drawn by counsel for the husband was that the wife’s accessing protected material was illegal and highly inappropriate and conceded so by senior counsel for the wife. The solicitor for the wife however maintained what I consider an untenable position that the wife was entitled to access that material and she for her part, as solicitor for the wife was entitled to continue to act only because of the fact that the wife had not shown her the relevant material. In addition, the solicitor refused to give undertakings sought by the husband in relation to the information. Despite the conduct of the solicitor, this application for costs seeks an order against the wife. In my view, her conduct was as a disgruntled partner within the marriage rather than as a litigant in the proceedings. The application against the solicitor failed and in any event, should more appropriately have been brought against the wife seeking restraining orders to preclude her from so giving the solicitor instructions.
In my view, this as an unnecessary piece of litigation exacerbated by the conduct of the solicitor for the wife but it is not a situation where the wife should be responsible for that action. To the extent that the husband is unhappy with and has a genuine complaint about the conduct of the solicitor, he should take that to another tribunal.
Even if there were sufficient circumstances to justify a departure from the principle in s 117 of the Act, it is common ground that there is significant property here for division so neither party is impecunious and there are no legal aid considerations. Neither party was wholly unsuccessful and as I have already observed, this was behavior of the wife that should have been reined in by the solicitor. The fact that the correspondence between the solicitor for the husband and the solicitor for the wife did not resolve the matter was unfortunate and wasted significant court time. In my view however, that is not something that the court should visit upon the wife.
In my view there is no basis here for the court to depart from the principle that each party pays their own costs.
The application by the husband for costs as set out in his counsel’s written submission filed on 19 June 2018 is dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 September 2018.
Associate:
Date: 12 September 2018
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