Hughes & Hughes (No 2)

[2012] FamCA 555

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES (NO. 2) [2012] FamCA 555

FAMILY LAW - COSTS – application for costs dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Hughes

RESPONDENT: Mr Hughes

FILE NUMBER: MLC 3708 of 2010

DATE DELIVERED: 19 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Indovino

SOLICITOR FOR THE APPLICANT: Barbour Arnold & Cousins

COUNSEL FOR THE RESPONDENT: Ms Ben-Simon

SOLICITOR FOR THE RESPONDENT: Lynette Smyth Solicitor

IT IS ORDERED THAT

1. The applicant wife’s application for costs by written submissions filed 1 May 2012 be dismissed.

2. The respondent husband’s application for costs by written submissions filed 17 May 2012 be dismissed.

3. All extant applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hughes & Hughes 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 3708  of 2010

Ms Hughes

Applicant

And

Mr Hughes

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Both the applicant wife and the respondent husband in these proceedings are seeking orders that the other party pay their costs on the Family Court scale as agreed between the parties or, in default of agreement, as assessed by a Registrar of this Court. The husband seeks in the alternative that no order be made for costs.  

2. On 8 December 2011 the wife filed an Application in a Case seeking the enforcement of Orders of this Court made 13 December 2000. That application was opposed by the husband. The application related to the interpretation of paragraph 3 of those orders. Both parties submitted that the meaning of the orders was clear. It was the wife’s case that the orders entitled her to the husband’s superannuation entitlements of approximately $180,000. It was the husband’s case that it was the intention of the orders that the wife would only be entitled to any further benefits or payments made by him or on his behalf subsequent to the orders of 13 December 2000, as a result of which he would be entitled to all of the funds the subject of the dispute.

3. On 4 April 2012 I acceded to the wife’s application and made orders that the husband do all acts and things and sign all necessary documents to authorise and effect payment to the wife of all of his benefits and entitlements in the M Superannuation Fund and the D Superannuation Fund.

4. The general rule is that each party to proceedings in this Court shall bear his or her own costs. That general rule is subject to s117(2) of the Family Law Act 1975 (Cth), which provides that if the court is of the opinion that there are circumstances that justify it doing so, it may make such order as to costs as it considers just. Section 117(2A) sets out the matters the court must have regard to in determining what, if any, orders should be made for costs, in so far as they are relevant. The weight to be given to these matters is a matter for the court’s discretion in each case.

5. It is the wife’s case that these are enforcement proceedings and that the husband was afforded every opportunity to comply with the orders and avoid the necessity of proceedings.  Her case is that, as I found that the meaning of the orders was clear, the husband’s opposition to the application and his failure to comply with the orders was unsustainable. The wife submitted that in those circumstances I should depart from the general rule and make an order for costs in the wife’s favour.

6. The wife also submitted that I should have regard to Cronin J’s reasons for judgement delivered on 1 March 2011 when, having dismissed the wife’s application, his Honour ordered that she pay the husband’s costs of that application. Each case must be decided on the basis of its own facts and circumstances and the merits of that particular case and I agree with the husband’s submission that the issues in the previous case were different to those in this case.

7. The husband sought an order for costs in his favour, however the submissions made on his behalf were primarily in opposition to the wife’s application for costs rather than in support of an order in his favour. The husband submitted that even if the proceedings were said to be enforcement proceedings they were not necessitated by a failure on his part to comply with the orders in question. The proceedings in this case were based upon a contested interpretation of the orders of the court and that the husband had a reasonable and honest belief that the wife was not entitled to the monies in the M Superannuation Fund and was entitled to have the interpretation of those orders tested. Similarly, whilst it was conceded by the husband that he had been wholly unsuccessful, this should be viewed in the context of a case in which, of necessity, one or other of the parties would be wholly unsuccessful because of the nature of the dispute as to the interpretation of the orders.

8. It was also submitted on behalf of the husband that the financial position of the wife is superior to that of the husband. The husband relies upon his Statement of Financial Circumstances filed 22 February 2011. According to that Statement the husband’s only source of income is a Department of Veteran Affairs pension of approximately $350 per week. He has no assets other than a boat which was valued at that time at approximately $50,000. As a result of the orders I have made he no longer has any superannuation entitlements.

9. The wife has not filed a Statement of Financial Circumstances nor were any submissions made with respect to her financial circumstances, however I note that at the hearing before Cronin J on 1 March 2011 he was advised by counsel appearing on behalf of the wife at that time that the wife was working and that she had an interest in a home. It is not clear whether that is the property referred to in the orders for property settlement or what if any equity she has in the property. However at the very least I can be satisfied that she has received the benefit of the husband’s superannuation entitlements which, according to Mr Indovino who appeared on her behalf, are valued at approximately $180,000.

10. Neither of the parties is in receipt of legal aid nor is it submitted that I should have regard to the conduct of either party with respect to the proceedings save and except that it is submitted by the wife that the husband persisted with an application that had no prospect of success.

11. Having regard to all of the relevant factors in s117(2A) of the Act, and in particular the nature of the proceedings and the financial positions of the parties, I am not satisfied that the circumstances of this case justify a departure from the general rule that each party should bear his or her own costs and I propose to dismiss both applications for costs.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 4 April 2012

Associate: 

Date:  19 July 2012