HORRIGAN & JENNINGS

[2016] FamCA 108

FAMILY COURT OF AUSTRALIA

HORRIGAN & JENNINGS [2016] FamCA 108

FAMILY LAW – COSTS – Where the applicant was successful with part of her application, in having previously made consent orders set aside on the basis that the court lacked jurisdiction to make those orders at that time – Where as a consequence of that determination, the applicant was unsuccessful in being able to prosecute the balance of her application for a variation to those consent orders – Where the respondent was unsuccessful in opposing the dismissal of the whole of the application, with the consequence that he was successful in defeating any further financial claim against him – Where in these unusual circumstances, the most appropriate course is for the general principle to apply that each party bear their own costs – Applications for costs dismissed

FAMILY LAW – PRACTICE & PROCEDURE – Where there is no present jurisdiction to determine the outstanding applications – Where an option will be left open for either party to re-list applications in respect of establishing jurisdiction, if either chooses to take that course – Where an Order is made accordingly

Family Law Act 1975 (Cth), ss 90SN, 117

Horrigan & Jennings [2015] FamCA 923

APPLICANT: Ms Horrigan

RESPONDENT: Mr Jennings

FILE NUMBER: NCC 3264 of 2012

DATE DELIVERED: 29 February 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 28 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Tregilgas
SOLICITOR FOR THE APPLICANT:	Byrnes Lawyers

COUNSEL FOR THE RESPONDENT: Ms Spain

SOLICITOR FOR THE RESPONDENT: Smallwoods Lawyers

Orders

1. That the Application in a Case filed 4 November 2015 and the Response to an Application in a Case filed 8 December 2015 is dismissed.

2. Each party may re-list their respective application and/or response within

   
   

   14 days of the date of these Orders and in the event there is no such application to re-list, the following applications and responses will be dismissed without further notice to the parties:

   (a)Initiating Application of Mr Jennings filed 16 September 2010;

   (b)

   Response to Initiating Application of Ms Horrigan filed

   
   

   22 December 2010;

   (c)Initiating Application of Ms Horrigan filed 4 December 2012;

   (d)

   Response to Initiating Application of Mr Jennings filed

   
   

   25 January 2013 (in Wauchope Local Court);

   (e)

   Amended Initiating Application of Ms Horrigan filed

   
   

   13 March 2015; and

   (f)Amended Response of Mr Jennings filed 30 March 2015.

IT IS NOTED that publication of this judgment under the pseudonym Horrigan & Jennings is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3264 of 2012

Ms Horrigan

Applicant

And

Mr Jennings

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are competing costs applications by the parties to the most recent court event which resulted from an  application by Ms  Horrigan (“the applicant”) to the Federal Circuit Court, as it is now known, in December 2012.

2. On 5 July 2013 the proceedings were transferred to the Family Court.

3. The December 2012 application was for discharge of orders made by consent on 29 March 2011 (“the 2011 consent orders”).

4. The application was opposed by Mr Jennings (“the respondent”).

5. The application was successful and the 2011 consent orders were discharged.  The consequence of that outcome is that the Court does not presently have jurisdiction to hear any further aspect of the property dispute. The current dispute being an application to vary the adjustment put in place by the 2011 consent orders, now set aside.

6. After the October 2015 determination[1], the matter was listed for directions in respect to the outstanding Amended Initiating Application and Amended Response.

   [1]Horrigan & Jennings [2015] FamCA 923

7. By 5 November 2015 the applicant had filed an Application in a Case seeking costs. Directions were made for the filing of a Response on two occasions, while the parties grappled with the future of the substantive proceedings.

8. On 28 January 2016 I heard submissions on costs and reserved judgment.

9. I indicated to the parties that when the orders relating to the costs application were pronounced, I would make an order dismissing all outstanding applications, unless the proceedings were relisted by either party within

   
   

   14 days of the orders being made.

10. An Order to that effect has been made accordingly.

The Evidence

1. The documents relied upon by the parties is as follows:

   Applicant

   a)Application in a Case filed 04/11/2015;

   b)Affidavit of the applicant’s solicitor filed 04/11/2015;

   c)Financial Statement filed 13/03/2015;

   Respondent

   d)Response to an Application in a Case filed 08/12/2015;

   e)Affidavit of the respondent’s solicitor filed 08/12/2015; and

   f)Financial Statement filed 30/03/2015.

The Law – Costs

1. The starting position set out in s 117 of the Family Law Act 1975 (Cth) (“the Act”), in respect to proceedings in this Court, is that each party shall bear his or her own costs.

2. If the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to s 117(2A) of the Act (and other sub-sections 117(4), 4A and 5 which are irrelevant here), make such orders as to costs as the Court considers just.

3. In considering what order, if any, should be made pursuant to s 117(2) of the Act, the Court must have regard to the following matters.

The financial circumstances of each of the parties to the proceedings

1. Both parties are in paid employment.  The applicant is a clerk. She has earnings from wages and investment income from real property.[2]  The respondent works in a professional capacity. His income is from salary in that occupation.[3]

   [2] Applicant’s Financial Statement, Part D

   [3] Respondent’s Financial Statement, Part D

2. For each party, expenditure equates to income.

3. The applicant has an unencumbered home and three other properties on which mortgages are secured. The respondent has a home property, encumbered by a mortgage.

4. Each of the parties has incurred significant costs over the past five-and-a-half years since this litigation was commenced.

The assistance of Legal Aid

1. Neither party has had the benefit of a grant of Legal Aid.

The conduct of the parties to the proceedings in relation to the proceedings

1. There has been no failure by either party with procedural compliance in the matter before me.

Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. There has been no failure to comply by either party.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. This aspect is problematic.

2. The applicant was successful with part of her application; that is, in having the 2011 consent orders set aside on the basis that the Court lacked jurisdiction to make those orders at that time.

3. The inevitable consequence of that success was that she was unsuccessful in being able to prosecute the balance of her application, which was for a payment to be made to her in addition to the arrangements which were put in place by the 2011 consent orders. The Court does not presently have jurisdiction to deal with that part.

4. The respondent was unsuccessful in opposing the dismissal of the whole of the application, with the consequence that he was successful in defeating any further financial claim against him.

Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. There is no evidence of offers of settlement in relation to the financial dispute.

2. However, two letters were handed up which I take into account.

The First Letter

1. On 7 May 2015 the solicitors for the respondent wrote, as a follow-up to a recent directions hearing held on 1 May 2015:[4]

   We fail to understand what purpose there is to have a Hearing on the Jurisdictional issue as the Orders sought in your client’s Amended Initiating Application are in conflict. If you client is successful on the Jurisdictional issue she will not be able to proceed to pursue Property Orders though the Family Court. Please advise what your client intends to do if she is successful on the Jurisdictional issue.

   [4] Exhibit 1 (letter dated 07/05/2015 from Smallwoods to Byrnes Lawyers)

2. The letter continued in this way. However I note that the letter did not concede a want of jurisdiction.

The Second Letter

1. The next letter was from the solicitors for the applicant to the solicitors for the respondent dated 10 August 2015.[5] This letter related to the dispute over jurisdiction and referred to the possibility that one or both parties had not been advised about the opting-in requirements at the relevant time to ground jurisdiction.

   [5] Exhibit 2

2. The letter referred to the applicant reviewing her options after the outcome of the challenge to jurisdiction and made no specific proposal.  

Such other matters as the court considers relevant

1. The parties are now left with outstanding applications from 2010, which have not been disposed of by the 2011 consent orders, as was assumed at the time.

2. There is a current application, seeking fresh orders apparently pursuant to

   
   

   s 90SN of the Act.

3. There is no present jurisdiction to determine any application other than in relation to establishment of jurisdiction

4. An option will be left open for either party to re-list applications in respect of jurisdiction, if either chooses to take that course.

Conclusion

1. Having considered all of the matters referred to above, it seems to me that it would not be just to compel either party to contribute to the costs of the other.

2. Both parties clearly considered that they had finalised the matter by the 2011 consent orders. They were both conscious of the dispute about the date of the end of their de facto relationship but both, at that time, held to the view that consent to the proposed orders was sufficient.

3. The hearing of the application to set aside the orders for want of jurisdiction was contested and not conceded.  The success of applicant in establishing the lack of jurisdiction has rebounded on herself, but the respondent did not concede the jurisdictional point in order to avoid further costs.

4. In these unusual circumstances, the most appropriate course is for the general principle to apply that each party bear their own costs.

5. An Order is made accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 29 February 2016.

Associate:

Date:  26 February 2016