Hooper and Shea
[2012] FMCAfam 17
•13 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOOPER & SHEA | [2012] FMCAfam 17 |
| FAMILY LAW – Costs – application for costs – costs of application for leave to commence proceedings out of time – where respondent husband wholly unsuccessful. |
| Family Law Act 1975, s.117 Federal Magistrates Court Rules 2001 Sch.1 |
| Shea & Hooper [2011] FMCAfam 1305 |
| Applicant: | MS HOOPER |
| Respondent: | MR SHEA |
| File Number: | SYC 7461 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 January 2012 |
| Date of Last Submission: | 10 January 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 January 2012 |
REPRESENTATION
| Application dealt with in chambers |
| Solicitors for the Applicant: | Shepherds The Family Law Specialists |
| Solicitors for the Respondent: | Adams & Partners Lawyers |
ORDERS
The Husband to pay the Wife’s costs fixed in the sum of $6,500.00.
IT IS NOTED that publication of this judgment under the pseudonym Hooper & Shea is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7461 of 2008
| MS HOOPER |
Applicant
And
| MR SHEA |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for costs. The Wife seeks an order that the Husband pay her costs of defending his Application for leave to institute proceedings for spousal maintenance out of time.
The Application was heard on 22nd November 2011. On 5th December 2011 the Husband’s application was dismissed (Shea & Hooper[1]). The substantive proceedings for divisional of matrimonial property were transferred to the Family Court, as it was conceded that the hearing time was unlikely to be confined to the maximum time of four days, which is the maximum time for matters to be heard in this Court.
[1] [2011] FMCAfam 1305
The Wife sought an order for costs on the day that the judgment was handed down. The parties were directed to file their written submissions on costs within fourteen and twenty-one days.
The Wife seeks costs calculated according to the scale of costs set out in Schedule 1 to the Rules in the sum of $11,179.00.
On 15th December 2011 the Wife’s solicitors forwarded a written submission to the Court setting out the basis upon which she seeks costs.
No submission has been received from the Husband.
The Relevant Law
Costs do not follow the event in family law. However, if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such an order for costs as it considers just (s.117(2)).
Subsection 117(2A) of the Act sets out the matters to which the Court must have regard when considering what order (if any) under s.117(2) should be made. In short, they are:
a)The parties’ financial circumstances;
b)Whether any party has a grant of legal aid;
c)The conduct of the parties to the proceedings;
d)Whether the proceedings were necessitated by a failure to comply with any previous court order;
e)Whether any party was wholly unsuccessful;
f)Any written offer of settlement; and
g)Such other matters as the Court considers relevant.
Submissions
The Wife’s solicitors forwarded a written submission to the Court but no submission has been made by or on behalf of the Husband.
The Wife submits that:
a)She works part time as a [omitted] and is paid $510.00 per week;
b)Although she is a beneficiary of the Hooper Family Trust, given that this is an asset that the Husband seeks to include in the asset pool for division between the parties it should not be taken into account when considering the parties’ financial circumstances;
c)Whilst her conduct in opposing the Husband’s Application cannot be criticised, the Husband filed a large number of pleadings which put her to unnecessary costs in having to meet them;
d)The Husband also sought to change the venue of the proceeding to Parramatta including inappropriately attempting to contact a specific Federal Magistrate;
e)The Husband’s application for leave to commence proceedings for spousal maintenance out of time arose from his failure to make his application within the usual one year period; and
f)All aspects of the Husband’s Application were wholly unsuccessful.
The Wife submits that she had to respond to a large number of lengthy documents filed by the Husband and because she had to deal with the multiple issues raised by him it was reasonable to brief counsel to attend Court on two occasions.
The Wife quantifies the amount she seeks according to Schedule 1 of the Rules:
a)Lump sum for Interim or Summary Hearing $1,559.00
b)Attendance of solicitor at hearing on two days at $1,873.00 per day $3,746.00
c)Attendance of Counsel on two days at $1,873.00 plus 50% advocacy loading $5,619.00
d)Agent’s fee to take judgment $255.00
TOTAL $11,179.00.
Conclusions
This is not a matter where either party was in receipt of a grant of legal aid.
The Wife’s financial circumstances are set out in her financial statement filed on 30th June 2011. In the decision handed down on 5th December 2011, I was critical of the accuracy of the Husband’s financial statements and found that he had failed to show hardship or an inability to support himself adequately.[2] At paragraph [45] I said of the Husband’s two most recent financial statements:
They appear to be most inaccurate documents upon which no reliance can be placed.[3]
[2] [2011] FMCAfam 1305 at [45]-[50]
[3] [2011] FMCAfam 1305 at [45]
The main point to be made is that the Husband was wholly unsuccessful in his claim. His application for leave to institute proceedings for spousal maintenance was dismissed.
In my opinion, the circumstances justify making an order that the Husband should pay the Wife’s costs of his unsuccessful application.
Quantum of Costs
The Wife seeks a total of $11,179.00 by way of party and party costs, calculated in accordance with Schedule 1 of the Rules. This includes attendance of a solicitor and counsel at the hearing for two days. The Court record shows that the Application was heard on one day, 22nd November 2011, and I am only prepared to allow costs for one hearing day, not two.
Accordingly, I allow costs as follows:
a)Lump sum $1,560.00
b)Attendance by solicitor on 22 November $1,875.00
c)Counsel’s fee for 22 November $2,810.00
d)Attendance by agent on 5 December to take judgment $ 255.00
TOTAL $ 6,500.00
Accordingly, an Order will be made that the husband is to pay the wife’s costs in the sum of $6,500.00.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 13th January 2012
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