Kern and Kern

[2008] FMCAfam 462

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KERN & KERN [2008] FMCAfam 462

FAMILY LAW – Costs – applicant wholly unsuccessful.

Family Law Act 1975, s.117

Applicant: MR KERN

Respondent: MS KERN

File Number: WOC 640 of 2007

Judgment of: Altobelli FM

Hearing date: 22 February 2008

Date of Last Submission: 22 February 2008

Delivered at: Wollongong

Published on: 20 May 2008

REPRESENTATION

Solicitors for the Applicant: Rita Thakur & Associates

Solicitors for the Respondent: Dignan and Hanrahan

ORDERS

1. The Applicant pay the Respondent’s costs in the amount of $4,220 within 90 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

WOC 640 of 2007

MR KERN

Applicant

And

MS KERN

Respondent

REASONS FOR JUDGMENT

1. I made orders and delivered reasons in this matter on 22 February 2008. My judgment sets out the relevant facts, background and explains why the husband’s application filed 30 May 2007 was dismissed

2. The present application is for costs. Pursuant to an Order I made on

   
   22 February 2008

   the respondent provided written submissions as to costs within the timeframe stipulated and served a copy of the relevant submissions as to costs on the solicitor for applicant.

3. As at 20 May 2008 when these reasons are being prepared no submissions had been received by the applicant as to costs. Accordingly I will proceed to deal with the respondent’s costs application on the basis of their written submissions

4. An application for costs is governed by s.117 of the Family Law Act. Whilst the general proposition is that each party to proceedings under this Act is that each party to proceedings shall bear their own costs, section 117(2) provides that if the Court is of opinion that there are circumstances that justify doing so, the Court may make such order as to costs as the Court thinks is just. Section 117(2A) sets out a list of the relevant considerations. The respondent’s submissions deal with the relevant considerations seriatim. The respondent appears to derive a modest income of $400 gross per week. It appears the applicant is retired and is in receipt of an income. I do not know of his financial circumstances and by not making submissions in accordance with the opportunity I provided to him he has denied himself the opportunity to put evidence before me indicating that his financial circumstances are such that I should not make an order for costs against him.

5. I am informed that the respondent did not have the benefit of a grant of Legal Aid. I do not know whether this is the case as regards the applicant. I am satisfied that the proceedings were conducted efficiently. No matters were brought to my attention to the effect that additional costs were incurred by one party as a result of the manner in which the other party chose to conduct the proceedings. There are no issues arising out of the failure by a party to comply with a previous order of the Court.

6. The respondent submits that the application has been wholly unsucsessful in the proceedings. I accept that submission. The nature of these proceedings was that one party would win and the other party lose. From the perspective of adjudicating there were only these two alternatives. I distinctly recall warning the parties that the nature of this matter was that there would be a clear winner and loser and that costs issues would follow. My reasons explain why the applicant was entirely unsuccessful. This is a strong consideration pointing towards an order for costs in favour of the respondent.

7. The respondent’s submission as to costs encloses a copy of a letter dated 6 May 2007 containing an offer to settle expressed as “without prejudice except as to costs”. The letter indicates that the respondent offered to pay the applicant $3500. That offer appears to have been declined. This is another strong consideration pointing towards an order for costs in favour of the respondent.

8. The aforementioned considerations lead me to conclude that an order for costs in favour of the respondent is justified. In the respondents submissions costs are sought totalling $8440 calculated in accordance with the schedule to the Federal Magistrates Court Rules. There are two reasons why I am not prepared to make an order in the quantum sought. Firstly, before making such an order I would need to be reasonably satisfied that the applicant has the capacity to meet the same notwithstanding his failure to provide information about his finances. The overall impression formed at the hearing is that neither party was of substantial means and that even though the amounts the subject of this litigation were relatively modest, it was important enough for the applicant to litigate to recover the sum.

9. Whilst the applicant’s failure to provide written submissions in relation to costs, and thus to inform me as to his financial circumstances, is quite baffling, nonetheless I am not prepared to infer from that, that he has the capacity to meet any costs order I may make.

10. Secondly, it was apparent from the evidence that the applicant was not aware of the objective evidence in the form of an NAB bank statement indicating a withdrawal of $5,180 on 10 April 2007 until he was in the witness box being cross examined. It is surprising that such an important piece of objective evidence was not made available to the applicant prior to the hearing itself. One would have thought if that piece of evidence had been put to the applicant it might have caused some reconsideration on his part about his prospects of success. Of course, the respondent is entitled to run her case as she is advised, or as she determines, but it is a matter that I take into account under paragraph (g)of subsection 117(2A) in determining the quantum of costs made.

11. As indicated above the respondent seeks $8840 calculated in accordance with the Federal Magistrates Court Rules schedule as to costs, under the circumstances and having regard to the matters set about above, I conclude half of this amount is justified. Accordingly, I will make an Order that the applicant pay the respondent’s costs in the amount of $4,220 within 90 days.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:  Lisa Molloy

Date:  20 May 2008