LEVITT & LEVITT

[2018] FamCA 427

FAMILY COURT OF AUSTRALIA

LEVITT & LEVITT [2018] FamCA 427

FAMILY LAW – PRACTICE AND PROCEDURE – where the solicitor for a party requested a case be listed because of non-compliance by the other party with orders – no application was filed – power of the court to do anything considered.

FAMILY LAW – COSTS sought by party brought along upon “mention” – costs refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Levitt

RESPONDENT: Mr Levitt

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2929 of 2018

DATE DELIVERED: 31 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ben-Simon

SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Avery and Ms Morrison

SOLICITOR FOR THE RESPONDENT: Rigoli Lawyers

THE INDEPENDENT CHILDREN’S 

LAWYER:

Excused

Orders

1. The oral application for costs is dismissed.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: VID 2929 of 2018

Ms Levitt

Applicant

And

Mr Levitt

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a matter that came before me today, having been listed by the Court at the request of the solicitor for the husband.  The Court must work on the basis that if legal practitioners insist that a matter be listed for mention or otherwise, that there is some application to be made.  There was no application before the Court, orally or in writing.  The solicitors for the wife were notified and they briefed counsel, I am told, on the basis that the solicitor was unavailable to attend.  Their response by attending is quite proper in the circumstances.  After discussion, it appears that what is underlying all this is an allegation that the wife had not complied with an order made by the Court.

2. One way or the other, the impugned order was said to have been by consent.  The reality is that there is no formal application and certainly no affidavit material upon which the Court could decide whether or not there had been a breach of the order.  Indeed, there is no allegation that there has been a breach.  There is a complaint that the wife has not complied and, indeed, presumably, what was going to be sought is an order that she comply.  The Court has already made the order about parties’ obligations. 

3. Having made the concession that there is no formal application – and an oral application could not be made for enforcement because there is no evidence to support it – there is now produced, although not tendered into evidence, two letters in which an allegation is made that there has been non-compliance.  Orally, again, from the bar table, counsel for the wife denies non-compliance.  This is a most unseemly dispute between lawyers and I am perplexed as to what the Court can do about it.  Having regard to the fact that there is no application in proper form, I think it was more or less conceded that the matter had to go away. 

4. Oral application was then made by counsel for the wife for costs.  She said that her brief fee was marked at $3300 for the day.  That is way beyond the scale of costs for a matter of this nature.  Indeed, it can only be seen as an application for indemnity costs. 

5. The solicitor for the husband opposes any order for costs. I am not at all convinced that the husband would understand the machinations of all of this and indeed from what I have heard, that the reason why the mess has occurred is because of the fact that the solicitor did not understand what the appropriate course was to have been taken. That arises because of inexperience. It is hard for me, therefore, to put the husband in a position where he is responsible for something that is beyond his control. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act – and I interpolate here that this may be part of the proceedings under the Act – each party shall bear their own costs unless there are circumstances to justify a departure from that principle.

6. A first step, therefore, is to look at whether or not there is a justifying circumstance to depart from the principle.  In my view, this is an unseemly spat between lawyers created on the one hand by inexperience and possibly on the other by the fact that there was no response to the first lawyer’s requests for some sort of action.  On that basis, I would have great difficulty in finding that the parties to these proceedings have not complied with the orders of the Court and on that basis there are no justifying circumstances to make an order for costs at all.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 May 2018.

Associate:

Date:  14 June 2018