Keir & Ramsay (No. 2)

[2021] FamCA 271

FAMILY COURT OF AUSTRALIA

Keir & Ramsay (No. 2) [2021] FamCA 271  

File number(s):	CRC 8 of 2020
Judgment of:	REES J
Date of judgment:	6 May 2021
Catchwords:	FAMILY LAW – COSTS
Legislation:	Family Law Act 1975 (Cth) s 117(2A)
Number of paragraphs:	16
Date of last submission/s:	4 May 2021
In Chambers:	5 May 2021
Place:	Sydney
Counsel for the Applicant:	Mr O’Brien
Solicitor for the Applicant:	Bryant McKinnon Lawyers
Solicitor for the Respondent:	Barnes Law Group

ORDERS

CRC 8 of 2020

BETWEEN:

MS KEIR

Applicant

AND:

MR RAMSAY

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	6 MAY 2021

THE COURT ORDERS THAT:

1.The application for costs of the proceedings determined on 20 April 2021 be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keir & Ramsay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. On 20 April 2021, I delivered reasons and made orders in proceedings between Ms Keir (“the applicant”) and Mr Ramsay (“the respondent”).

2. The applicant now seeks an order that the respondent pay her costs of the application on an indemnity basis or, in the alternate, on a party and party basis. The respondent opposes that application.

3. Each party has filed written submissions and the matter is to be determined in Chambers without the necessity of any further appearance.

4. The application falls to be determined according to the considerations set out in s 117(2A) of the Family Law Act 1975 (Cth), (“the Act”):

   Section 117(2A)

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (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 answer 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.

5. Each of the submissions, helpfully, addresses those considerations.

6. The terms of the orders made on 20 April 2021 provide, inter alia, for the payment to the applicant from a controlled monies fund, of $50,000. Other than that fund, she has no assets of any substance and an income of about $100 per week.

7. The respondent’s financial circumstances are less clear. He owns a construction business but deposes that he is unable to earn an income from that business because his machinery is in need of repair. He has, in the past, received a small income from the [redacted] project but I accept that income is likely to be, at least, diminished because he is restrained from publishing any further material. The respondent’s interest in the proceeds of sale of a property at Suburb C is inaccessible because those funds are held in a trust account pending resolution of the substantive dispute.

8. The respondent lives in the jointly owned property which is the subject of the substantive dispute.

9. However, the fact of present impecuniosity is not a bar to the making of a costs order against the respondent in circumstances where the respondent claims to be solely entitled to the proceeds of Suburb C and may receive all or part of those funds at the conclusion of the proceedings.

10. Neither party is in receipt of legal aid.

11. The applicant relies on the respondent’s conduct. However, the matters of conduct, which were dealt with in the reasons for judgment delivered 20 April 2021, were not matters going specifically to his conduct of the present application, but rather, to his conduct of the substantive proceedings.  I do not consider that the fact that the respondent filed a response and an affidavit in support of that response is, alone, a matter justifying the making of an order for costs.

12. It is not suggested that the proceedings were necessitated because of any failure to comply with a previous order.

13. The applicant was not wholly successful. She sought an extensive suite of orders in relation to the non-publication of certain images. Not all of those orders were made. She also failed in her application for a partial property settlement. It follows that the respondent was not wholly unsuccessful.

14. I was not referred to any relevant offers of settlement.

15. Having regard to all of those matters, I am not satisfied that it is appropriate to make any order for costs. I am, therefore, not required to determine whether an order for indemnity costs would be justified.

16. The application will be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       6 May 2021