JAYCE & PIERCE - [2020] FamCA 301

FAMILY COURT OF AUSTRALIA

JAYCE & PIERCE

[2020] FamCA 301

FAMILY LAW – COSTS – Where application for costs made by the wife – Consideration of applicable principles – Where consideration as to the question of indemnity costs – Where consideration given to the offers made as between the parties – Where there are circumstances justifying a departure from the general rule as to costs – Where order made for the husband to pay the wife’s costs of and incidental to the hearing on a party/party basis as agreed or as assessed.

Family Law Act 1975 (Cth) ss 117, 117(2A)
Family Law Rules 2004 (Cth) r 19.18

Anison & Anison [2019] FamCAFC 108
Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Browne & Green (2002) FLC 93–115
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins & Collins (1985) FLC 91-603
Dorsey & Mallon [2018] FamCAFC 244
Greedy & Greedy (1982) FLC 91-250
Harris & Dewell and Anor (No.2) [2018] FamCAFC 180
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka & Luadaka (1998) FLC 92-830
Munday v Bowman (1997) FLC 92-784
Parke & the Estate of the Late A Parke (2016) FLC 93‑748
Penfold v Penfold (1980) 144 CLR 311
Pennisi & Pennisi (1997) FLC 92-774
Robinson and Higginbotham (1991) FLC 92-209 at 78,417

APPLICANT:

Ms Jayce

RESPONDENT:

Mr Pierce

FILE NUMBER:

PAC

3716

2016

DATE DELIVERED:

30 April 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 21 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Watts McCray (NSW) Pty Ltd

Orders

That the husband pay the wife’s costs of and incidental to and including the costs of trial on 2, 3 and 4 December 2019 as and from 19 November 2019 together with the wife’s costs of and incidental to this costs application with such costs to be in the sum as agreed within one month from this date or otherwise as assessed.

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 Jayce & Pierce 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 PARRAMATTA

FILE NUMBER: PAC 3716 of 2016

Ms Jayce

Applicant

And

Mr Pierce

Respondent

REASONS FOR JUDGMENT

Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are as follows:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party has legal aid and the terms of any grant of aid;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)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; and
(g)such other matters as the Court considers relevant.
The wife, the primary applicant in proceedings for spouse maintenance orders and property adjustment that were determined by orders made 12 December 2019, seeks an order that the husband pay her costs of and incidental to those proceedings.
On 12 December 2019 the Court published Reasons for Judgment and made orders as follows following a three-day hearing earlier in December 2019:
(1)The wife’s application for spouse maintenance be dismissed.
(2)That within six months from this date the wife pay to the husband the sum of $48,236 (as amended under the slip rule).
(3)That in consideration of the payment provided for, the husband shall do all things necessary and sign all necessary documents to transfer to the wife his interest in the home at C Street, Suburb D being the land in Folio Identifier ....
(4)That concurrently with the transfer of the property to her, the wife shall do all things necessary to discharge the present mortgage encumbrances secured over the property at C Street, Suburb D being the land in Folio Identifier ... and as and from this date indemnify the husband from all or any liability arising therefrom.
(5)That in default of the wife complying with Order 1 by the due date, the parties including the second respondent do all things necessary to sell the property at C Street, Suburb D being the land in Folio Identifier ... for the best price reasonably obtainable and to apply the proceeds of sale as follows:
(a)In payment of agent’s commission and selling costs including legal expenses;
(b)In payment of 46 per cent of the balance then remaining to the second respondent Ms B Jayce; and
(c)In payment of the balance then remaining to give effect to an overall division of property as to 62.5 per cent to the wife and 37.5 per cent plus $5,500 to the husband having regard to these reasons for judgment and taking into account the superannuation splitting order made herein.
(6)That:
(a)The Court allocates, as required by section 90XT (4) of the Family Law Act 1975 (Cth), a base amount of $200,000 to the applicant wife out of the respondent husband’s interest in the G Company Superannuation Plan member number 482460.
(b)In accordance with section 90XT (1)(a) of the Family Law Act 1975 (Cth), the Trustee of the G Company Superannuation Plan:
(i)Creates an entitlement on the part of the applicant wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount allocated in paragraph 4.1; and
(ii)Makes a corresponding reduction in the entitlement to the respondent husband, or such other person to whom a splittable payment may be made, would have had in G Company Superannuation Plan, but for his order.
(c)Whenever the Trustee of G Company Superannuation Plan makes a splittable payment out of the respondent husband’s interest in the G Company Superannuation Plan, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 5(a) of this order in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001;
(d)This order has effect from the operative time and the operative time is 4 working days after the service of these orders on the Trustee of the G Company Superannuation Plan; and
(e)This order binds the Trustee of G Company Superannuation Plan.
(7)The parties shall sign all necessary consents as required by the Trustee of G Company Superannuation Plan within seven days of this order so as to facilitate the wife rolling her superannuation interest out of the G Company Superannuation Plan to a complying fund of her choice and the wife shall do all things necessary to do so as soon as practicable.
(8)Liberty to apply as to implementation or enforcement of these orders.
(9)In the event that there is any application for costs arising from the order made today, any application for costs be by way of written submissions filed and served by no later than 31 January 2020 with any submissions in response to be filed and served by no later than 21 February 2020 and upon completion of submissions judgment as to costs be reserved to chambers.
These Reasons for Judgment assume familiarity with Reasons for Judgment delivered 12 December 2019. It is to be noted that the previous second respondent (the wife’s mother) was a party to the proceedings and issues in relation to the second respondent were resolved by consent orders made on 27 November 2019, a short time prior to final hearing, with those consent orders providing that the second respondent held a 46 per cent interest in the unencumbered value of the subject property at Suburb D as tenant-in-common with the parties holding the remaining interest.
Otherwise, ongoing parenting proceedings between the parties were resolved finally by consent orders made 2 December 2019 in relation to the parties’ two children then aged nearly 12 and 10.
The Court received written submissions from the wife as to costs and written submissions from the husband in response.
The wife sought orders as to costs in the following terms:
a)that within 28 days the husband shall pay the wife’s costs of and incidental to her application for property adjustment insofar as that application relates to the issue of property adjustment between the husband and the wife such costs payable:
i)on an indemnity basis in the sum of $27,425 or in the alternative and without concession;
ii)on an indemnity basis as agreed or assessed or in the alternative and without concession;
iii)on a solicitor and client basis as agreed or assessed or in the alternative and without concession;
iv)on a party and party basis as agreed or assessed.
The husband, for his part, opposes the orders sought by the wife as to costs and asserts that the general rule that each party pay their own costs should prevail.
As to the relevant circumstances justifying a departure from the general rule, the wife contends that whilst there was no order as to costs in relation to that part of the proceedings resolved relating to the second respondent, the ultimate result saw an order substantially as sought by the wife in her Initiating Application in favour of the second respondent.
Otherwise, the wife’s Initiating Application sought orders that she receive the whole of the parties’ equity in the Suburb D property and a superannuation split of $80,000 from the husband’s superannuation. Final orders made required the wife to pay $58,000 to the husband to acquire his equity in the property together with an amount of $5,500 by way of her contribution to the Single Expert Parenting Report costs that had been paid by the husband. The wife’s application for spouse maintenance was abandoned at the commencement of the trial.
The financial circumstances of the parties are considered in the Reasons for Judgment referred to above with the husband being in a far superior income position to that of the wife. The wife will, subject to the capital payment to the husband, retain the former matrimonial home with her equity in that property being about $890,000 and subject, it is to be assumed, to an increased mortgage liability of about $440,000.
The ultimate property determination will see the husband with a small capital sum, some G Company shares and the balance of his superannuation after the splitting order. The wife’s legal costs remain outstanding and total about $161,300. The husband had paid at trial more than $215,000 in legal costs.
Neither party is in receipt of a grant of legal aid.
Neither party contends that there has been conduct during the proceedings that requires consideration.
Neither party contends that there has been a failure to comply with previous orders.
As to whether any party has been wholly unsuccessful in these proceedings, it is contended by the wife that had the husband entered into property orders as sought by the wife in her Initiating Application then the whole of the costs of the property matters may well have been avoided.
In Anison & Anison [2019] FamCAFC 108 the Full Court discussed the term “wholly unsuccessful” as follows:
Proper interpretation of s 117(2A)(e)
36.      As it appears in the section paragraph (e) provides as follows:
117     Costs
…
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
…
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
…
37.It is well settled that paragraph (e) refers to a situation where proceedings as a whole have been unsuccessful. For example, where an application without merit has been dismissed. In the oft-cited authority in this area of Robinson and Higginbotham earlier referred to, Nygh J (with whom Simpson & Smithers JJ agreed) said:
Her Honour then makes a reference to the question of which party was wholly successful but, of course, as counsel for the wife rightly submitted, paragraph (e) deals with a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed.
38.More recently, in Bant & Clayton (Costs) (“Bant”) the Full Court (May, Strickland & Tree JJ) stated:
(e)      The mother was wholly unsuccessful in the proceedings.
21.The father submits that by filing a Notice of Discontinuance the mother has been wholly unsuccessful. The mother says that her application was never heard or determined, and thus it was not wholly unsuccessful.
22.There is an element of truth in both submissions, but it is apparent to us that this paragraph does not apply to the facts of this case; it is designed for cases where an application is heard and determined and the applicant is wholly unsuccessful.
23.Thus, this paragraph does not provide a circumstance justifying an order for costs.
39.Those paragraphs of Bant were subsequently cited with approval by the Full Court in Parke & The Estate of the Late A Parke (by May & Ryan JJ at [17] and by Murphy J at [78]). (footnotes omitted)
It is readily apparent that in the context of this matter the husband has not been “wholly unsuccessful”.
The wife refers to various offers of settlement made by the husband on 19 September 2019, 25 September 2019, 3 October 2019 and 30 October 2019. The entitlement of the husband pursuant to those offers varied between 51.8 per cent of the property to 62.5 per cent of the property. It is noted that at trial the Court’s determination was that the husband was entitled to 37.5 per cent of the property. The husband’s offer of settlement dated 30 October 2019 provided that the wife pay to the husband the sum of $80,000 and that there be a superannuation split in favour of the wife in the sum of $70,000.
The wife further refers, in her submissions, to an offer of settlement made by her a little more than a month before the commencement of the trial. The wife’s offer dated 24 October 2019 would have seen the husband received 50 per cent of the property. The wife subsequently made further offers of settlement on 31 October 2019, 12 November 2019 and 19 November 2019.
The wife’s last offer of settlement provided that she pay to the husband $80,000 and that there be a superannuation split in favour of the wife of $70,000. This offer mirrored the husband’s offer made on 30 October 2019.
The husband contends that his earlier offer dated 30 October 2019 was only open for acceptance by the wife until 5 November 2019 and thus had lapsed. That ignores the position that the wife on 19 November 2019 made an offer to settle which although in the same terms required the husband to consider his position. He did not. He contends that he had already incurred the bulk of his legal costs including the responsibility for having engaged counsel for a five-day trial plus preparation. As to why that impacts upon his ability to give proper consideration to the wife’s offer remains a mystery.
Regrettably, notwithstanding the wife’s offer of 19 November 2019, the matter proceeded to trial. It is readily apparent that the ultimate orders for property adjustment were less favourable to the husband than the wife’s offer of 19 November 2019.
Consequently, the issue of costs is only enlivened as a consequence of the wife’s offer made 19 November 2019 that was not responded to by the husband.
There are no other relevant matters contended by the parties.
Noting that the wife’s primary position is to seek an order for indemnity costs, it is appropriate that the Court consider the general principles as to costs.
In Collins & Collins (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.
The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:
17.With respect to the application of the section, in Penfold v Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:
1.Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".
2.Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
(footnotes omitted)
18.The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

In Greedy & Greedy (1982) FLC 91-250 and Luadaka & Luadaka (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) which states:
Method of calculation of costs
(1)The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at 162 that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.
In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.
Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93‑748 at [130]:
If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…
The law in relation to indemnity costs is well settled.
As to indemnity costs, reference is made to the frequently cited judgment of Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 and that often repeated statement need not be repeated here. Holden J in Munday v Bowman (1997) FLC 92-784 drew from the decision of Sheppard J the following examples:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts. …
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud. …
(c)Evidence of particular misconduct causing loss of time to the court and to other parties. …
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions. …
(e) An imprudent refusal of an offer to compromise.
It is also important to note that the category of circumstances which enliven the discretion to award indemnity costs are not closed, and thus the circumstances do not need to come precisely within the examples provided.
In Harris & Dewell and Anor (No.2) [2018] FamCAFC 180 the Full Court said:
23.In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”. In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
24.That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.
25.The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”
26.Of course, in proceedings under the Act, an overriding “usual rule” is prescribed by s 117(1), namely that each party bears their own costs. The degree of departure between that “usual rule” and a result where one party bears the totality of the other party’s costs can be seen to be all the greater.
The accepted principles were again the subject of affirmation by Murphy J sitting as the Full Court in Dorsey & Mallon [2018] FamCAFC 244 where his Honour said:
21.There is no doubt that an award of indemnity costs is confined to “exceptional” cases. In my view, that must be all the more so in a Court where the usual position is that each party should bear their own costs. Although referring to the Family Law Rules 2004 (Cth), I seek to repeat in that respect, what was said in Prantage & Prantage:
151.…the Act, the Rules read as a whole, and existing authority each evidence a clear intention that a significant disparity between the level of costs provided for in Schedule 3 and the fees payable by a client to their legal practitioner militates against an award of indemnity costs or, if the circumstances otherwise warrant such an order, operates as a brake on the quantum that might otherwise be awarded.
152.Section 117(1) is important in that respect. Indemnity costs are confined to “an exceedingly rare situation” (Callinan J quoted by Thackray and Ryan JJ at [42]) in jurisdictions where “the usual rule” is that a successful party receives an order for costs (i.e. “costs follow the event”). They might, then, be seen to be more so in this jurisdiction where the “usual rule” is that “each party … shall bear his or her own costs” (s 117(1)). The comments by this Court in Kohan that indemnity costs are “a very great departure” from the “normal standard” should be seen in that context. That, it should be observed, is not a fetter on this Court’s discretion to award costs or indemnity costs if justice so requires it (see Oshlack v Richmond River Council (1998) 193 CLR 72, at 134 (particularly subpar [3]), per Kirby J). Rather it recognises that an order for indemnity costs, has a particular context in this jurisdiction.
153.In this Court, one of the two “seemingly irreconcilable objectives” of awards of costs referred to by Cooper and Merkel JJ in Re Wilcox quoted by Thackray and Ryan JJ can be expressed as “ … protecting access to justice in family law matters by not exposing an unsuccessful litigant in the usual course to an order for costs”. A litigant in this Court must establish that the justice of the case requires an order for costs by reference to (non-exhaustive) statutory considerations before any order for costs is made.
22.Reference has frequently been made in this Court to the judgment of Sheppard J in Colgate Palmolive Co v Cussons Pty Ltd and that often repeated statement need not be repeated here. I also refer in passing to what was said in Harris & Dewell (No. 2) at [22] – [25]. In those passages, the Full Court sought to emphasise the rarity of indemnity costs orders in the usual course of events.
In all the circumstances of this matter, the issue of indemnity costs is not enlivened.
However, by reason of the final orders made by the Court, the husband placed himself in jeopardy in relation to an application for costs incurred after the wife’s offer of settlement made 19 November 2019. The matter as to property adjustment between the parties proceeded to trial on 2, 3 and 4 December 2019 with significant costs of the trial including the costs of experienced counsel.
The public policy reason behind the encouragement of the making of offers of settlement during proceedings is that it is beneficial to both of the parties, the Court and the public at large if people are able to resolve their disputes themselves without the need for litigation.
As was observed by Nygh J in the Full Court in Robinson and Higginbotham (1991) FLC 92-209 at 78,417, in relation to offers:
… it is quite clear that the purpose of that provision is to ensure that offers to settle, if made seriously, are considered seriously, to ensure that the cost of litigation is avoided, the workload of this Court is lightened, and one other consideration is certainly that a party with greater wealth is not placed in a position whereby he or she can wear out the other by simple attrition. …
In Pennisi & Pennisi (1997) FLC 92-774, referring to s 117(2A)(f), the Full Court, said at 84,547:
…The husband’s submissions refer to Robinson and Higginbotham [1991] FamCA 4 ; (1991) FLC 92-209 as authority for the proposition that the fact that an offer just exceeds the award is no bar to an order for costs. Equally, however, it is only one of the factors to be considered under s 117(2A) and it is not the law that an offer of greater or equivalent value to that which results from the Court will lead to an order for costs in favour of the offeror – Harris and Harris (1991) FLC 92-254.
We would also add that just because an offer is marginally less than the amount ordered by a Court does not mean that it is not a factor to be taken into account in determining whether costs should be awarded.
...
We do, however, consider that the closer the offer is to the award when the offer is under the amount awarded by the Court, the more weight that should be given to this factor in considering the question of costs. This principle must not, however, be rigidly applied. Offers must be seen in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances while the offer is live. In the family law jurisdiction, it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties’ financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer. There are also cases where the contents of the offer are in themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account when considering whether it was reasonable or not to accept an offer, no matter how close to the ultimate result the offer may be.
In this matter there was little issue at trial as to the financial circumstances of each of the parties and the property pool available for division.
In Browne & Green (2002) FLC 93–115 the Full Court commented at 89,163:
… The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration, is something to which very significant weight indeed ought normally be given. …
Having considered the discussion above, and in considering that the husband’s failure to properly respond to the wife’s offer of settlement dated 19 November 2019, it is in itself a circumstance justifying a departure from the general rule. It is appropriate that there be an order that the husband pay the wife’s costs of and incidental to the trial on the usual party/party basis.
An order will be made accordingly.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 30 April 2020.

Associate:

Date: 30 April 2020