LANIGA & CARRON (No.2)

[2018] FCCA 3536

FEDERAL CIRCUIT COURT OF AUSTRALIA

LANIGA & CARRON (No.2) [2018] FCCA 3536

Catchwords:
FAMILY LAW – Costs – offer made by wife prior to commencement of proceedings – numerous subsequent offers to settle made by wife – all offers of the wife less in value to that which was ultimately ordered to be paid to the wife – offers rejected – husband self-represented and overwhelmed – order that husband pay wife’s costs as assessed on a party and party basis from date of first offer.

Legislation:

Family Law Act 1975 (Cth), ss.117(1), 117(2), 117(2A)

Cases cited:

Brown v Green (2002) FLC 93 – 115
Lennon v Lennon [2012] FamCA 116
Robinson v Higginbotham [1991] FLC 92 – 209

Penfold v Penfold (1980) 114 CLR 311

Applicant: MS LANIGA

Respondent: MR CARRON

File Number: BRC 9038 of 2016

Judgment of: Judge Egan

Hearing date: 17 October 2018

Date of Last Submission: 30 November 2018

Delivered at: Brisbane

Delivered on: 4 December 2018

REPRESENTATION

Counsel for the Applicant: Mr James

Solicitors for the Applicant: ABKJ Lawyers

Respondent: Self-represented

ORDERS

1. That the husband pay the wife’s costs of and incidental to the property proceeding, and of this application, to be assessed on a party/party basis, on the Family Court Scale of costs, as and from the date of the making of the first offer to settle on 29 April 2016.

IT IS NOTED that publication of this judgment under the pseudonym Laniga & Carron (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9038 of 2016

MS LANIGA

Applicant

And

MR CARRON

Respondent

REASONS FOR JUDGMENT

Costs consideration

1. Judgment in this matter was handed down on 13 September 2018 in property proceedings between the applicant wife and respondent husband. The total asset pool was assessed as being in the amount of $1,343,539.00. Based on a 55/45% apportionment in favour of the wife, and taking into account the earlier distribution to the wife of the amount of $50,000, it was ordered that the wife receive the benefit of an adjustment order in the amount of $688,946.

2. By order of His Honour Judge Jarrett made on 17 October 2018, the husband was to make and file submissions as to costs by 30 November 2018, and the wife was to make and file any reply submissions by 7 December 2018.  Having read the husband’s submissions filed on 30 November 2018, it is clear that after the wife commenced property proceedings the husband wanted to control the tenor of any possible property settlement negotiations between the parties.  So much can be seen from a reading of paragraph 50 of the husband’s submissions where he said:

   50.  On 19 August 2016, I advised the wife that I could not consider or propose any settlement offer until our true financial position has been agreed to by both parties.  As it is clear from the wife’s failure to provide a full and frank disclosure detailed above, the wife…