Jennings and Jennings

[2007] FamCA 404

FAMILY COURT OF AUSTRALIA

JENNINGS & JENNINGS [2007] FamCA 404

FAMILY LAW - COSTS – Husband to pay wife’s costs after final hearing

Family Law Act 1975(Cth)

APPLICANT: Mrs Jennings

RESPONDENT: Mr Jennings

FILE NUMBER: SYF 4666 of 2004

DATE DELIVERED: 6 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 6 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: Dettmann Longworth

SOLICITOR FOR THE RESPONDENT: Husband in person

Orders

1. The husband is to pay to the solicitor for the wife by way of costs of the wife of and incidental to these proceedings costs assessed in the sum of $19,000 and that payment is to be made within 2 months from today's date. 

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4666 of 2004

Mrs Jennings

Applicant

And

Mr Jennings

Respondent

REASONS FOR JUDGMENT

1. There is an application for costs arising out of proceedings concluded by judgment delivered on 6 December, following the hearing on 23 and 24 November 2006, in relation to settlement of property, spousal maintenance and there had been a claim for adult child maintenance.

2. I am to take into account the financial circumstances of the parties, any offers of settlement in writing, whether either party was wholly unsuccessful, whether the proceedings arose from a breach of Court orders, the conduct of the parties in relation to the matter, any other thing relevant to costs.

3. I found, in the course of the hearing, that the husband's financial position, in terms of income, was stronger than that of the wife, and the orders resulted in a distribution, I think, which represented, after some payments were made, of the order of 65 per cent to the wife of proceeds of a property and 35 to the husband.  An order was also made for spousal maintenance for a finite period.

4. There have been offers of settlement.  The husband says that he would have accepted the first offer that was made but for the conditions attached to it, or to put that another way, he felt that the proposal in practice did not reflect the terms of the offer.  It is a bit hard to get to the bottom of that, I must say.  Certainly, stepping back from it, the husband has done slightly worse than he would have done if, at some point, he had accepted the specific proposal made on behalf of the wife in 2006. There are arguments about the impact of other issues on the settlement proposals and the matter is confused because there were parenting proceedings until they were discontinued. In my view the husband would have been better off if he had been able and willing to accept the wife’s proposal.

5. As to the conduct of the proceedings, the husband had an obligation to give the Court evidence about the financial circumstances in relation to his cohabitation with his partner.  He was not able to do that, and there remained an issue as to whether or not his accommodation was subsidised. That is not a matter that should have been the matter of speculation.  There should have been some evidence given about that. That issue resulted in the hearing going into the last day, in circumstances where that time would not have otherwise been required.  The wife says she should be fully protected in relation to those costs.  The husband says the case was originally set down for two days. In my view that argument is a bit tough on the husband. What was lost was a potential saving of time, there is no suggestion that through the husband’s conduct the hearing was extended beyond the period for which it was originally listed.

6. Certainly, as a general proposition, the husband has built his case based on the wife's case.  That is to say, instead of, as the rules provide, the parties filing their affidavits at the same time, the husband has relied on the wife's material to build a case in response. The result of that was that some issues were blown out of proportion. That approach added to the costs of the wife.

7. As I have recorded in my judgment, the every practical and sensible approach that counsel for the wife and the husband took in dealing with the hearing was of assistance.  There are a thousand pitfalls in terms of defining the evidence, dealing with objections to evidence and all of those steps that comprise a judicial hearing.

8. As a general proposition the husband has benefited from the wife's legal representation. A former judge of this Court, Rowlands J, often made an order that an unrepresented party pay one half of the costs of the other, represented party. The rationale for that being that a litigant is quite entitled to run his or her own case, is quite entitled to make an assessment as to whether they would like to spend their own money retaining legal representation and to reject that course. However, in those circumstances, it is manifestly unfair to the other party that the preparation of the case be built on a structure that that party has paid for and the other party, without legal costs, has been able to benefit from that work.

9. For that reason and because the husband’s lack of disclosure has added to the costs of the proceedings there should be a costs order against him.

10. The entirety of the costs of the wife are said to be $48,000.  As I said to the husband in the course of submissions, normally orders are made on a party and party basis, and it takes something quite significant to order that a party be fully indemnified. The making of false allegations of fraud is an example from the general jurisdictions of a reason why one would order indemnity costs.  There is no sense of that here.

11. The claim that is made on behalf of the wife is for $18,000 for the general matter, on a party and party basis, from the time of the first offer up until the end of the first day, and for $5000 in respect of the day wasted. In my view the proper award is $19,000.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan

Associate: 

Date:  8 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as JENNINGS & JENNINGS