Kinross & Kinross

[2009] FamCA 391

FAMILY COURT OF AUSTRALIA

KINROSS & KINROSS [2009] FamCA 391

FAMILY LAW – COSTS

APPLICANT: Mr Kinross

RESPONDENT: Ms Kinross

FILE NUMBER: MLC 8020 of 2007

DATE DELIVERED: 11 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 11 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.R. Dickson

SOLICITOR FOR THE APPLICANT: Macpherson & Kelley

COUNSEL FOR THE RESPONDENT: Ms L. Colla

SOLICITOR FOR THE RESPONDENT: Lennon Mazzeo

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8020 of 2007

MR KINROSS

Applicant

And

MS KINROSS

Respondent

REASONS FOR JUDGMENT

1. The parties reached an agreement on 4 February this year which culminated in parenting orders in the court and a binding financial agreement in relation to all financial matters. 

2. Unfortunately, within a very short time there was an issue in relation to the contravention of parenting orders and the enforcement of the financial orders and that is why they are back in court today. 

3. They have now resolved both of those applications which were brought by the father in early April.  That leaves the question of costs. 

4. Costs are determined according to s 117 of the Family Law Act.  It provides that each party will pay their own costs unless at the discretion of the court a costs order is made.  The section sets out a range of matters that I must take into account including the conduct of each party, the merits of their respective cases, the outcome of the case, and their financial positions.

5. Counsel has addressed me first in relation to the contravention application.  I am satisfied that it was reasonable of the father to issue the application.  He had missed time with his little daughter.  I am satisfied he was given too short a notice from the child's mother that she was going to be overseas for the approaching contact times.

6. As I have said in the course of argument today, I am satisfied that he is entitled to his costs for issuing those proceedings, given the mother's conduct, but I am not entitled that those costs should go beyond 21 April 2009.  At that time, there were genuine efforts being made on the mother's side to resolve the issue.  With a bit of robustness, good-will, and effort, I am satisfied that the overtures she was then making could have been met with reasonable discussions and the case could have resolved.  So he should have limited costs. 

7. I am satisfied on the basis that today she is entitled to receive a cheque of $750,000, that the mother does have the capacity to meet the costs order.

8. So far as the enforcement application is concerned, there were various things that needed to be done under the Binding Financial Agreement.  It is apparent that from a date even before the money was due to be paid from the husband to the wife, the husband was indicating that he was keen to settle.  I have been shown the correspondence today that traces through between the parties as to the efforts that were being made to effect the final financial settlement.

9. I am satisfied again that the husband did have to start proceedings in order to achieve final settlement.  Prior to issuing, it was apparent that the stumbling block was an amount of $4,500-odd that the wife's solicitor was claiming the husband should pay in relation to some outstanding costs.  That assertion on behalf of the wife was simply not reasonable.  It is quite clear in Clause 7 of the Binding Financial Agreement that the husband was to pay the wife's solicitors the sum of $10,000 to meet her outstanding legal costs.  He was called upon to do so and he did.  Whether or not there was another sum that the wife's solicitor would have preferred he had raised in the course of mediation, and written into the Binding Financial Agreement, is really irrelevant.  The husband met his obligations under the agreement.  He was not obliged to pay more.

10. It was only last week, on 6 May, that the wife wrote directly to the husband saying that issues in relation to particular bank releases were resolved and that the only stumbling block that remained was this old bill.  Contrary to what I first understood, it has become clear that the husband's solicitor has done exactly what she should have done in trying to contact the wife's solicitor to resolve things.  A letter properly written by her on 8 May received no reply and the parties were required to be at court today.  Accordingly, I do agree that the wife should meet the husband's costs of the court appearance today.

11. I agree that it would be practical, if I can, to fix the costs and have them deducted from the amount to be paid over to the wife today so that there is no further litigation or irritation between the parties.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  11 May 2009