Lipson and Weber

[2013] FamCA 695

FAMILY COURT OF AUSTRALIA

LIPSON & WEBER [2013] FamCA 695

FAMILY LAW – COSTS – Husband to pay wife’s costs of fixed sum – payment stayed until final hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Lipson

RESPONDENT: Mr Weber

FILE NUMBER: MLC 5453 of 2012

DATE DELIVERED: 5 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shepherd

SOLICITOR FOR THE APPLICANT: Currie Law

COUNSEL FOR THE RESPONDENT: Ms Colla

Orders

1. That the husband comply with his obligations to provide comprehensive discovery by 4.00pm on 13 August 2013.

2. That the wife have leave to serve such questions as she considers appropriate by 4.00pm on 16 August 2013 answers to which are to be provided by the husband by 4.00pm on 26 August 2013 in the form of an affidavit.

3. That the wife file and serve her affidavit of evidence in chief by 4.00pm on 6 September 2013.

4. That the husband pay the wife’s costs fixed in the sum of $3000 the payment of such be stayed until the final hearing of these proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5453 of 2012

Ms Lipson

Applicant

And

Mr Weber

Respondent

REASONS FOR JUDGMENT

1. I have previously dealt with issues as to the law in this case relating to costs.  This is a case where there are justifiable circumstances for an order for costs.  There are two reasons for that.  The first is that the letter to the wife’s solicitors made abundantly clear that discovery was not complete.  I have heard evidence today from the husband to say that that letter was not sent on his instructions in those words.  To that extent, the wife’s costs today have been unnecessarily incurred. 

2. The second point seems to me to be that, no matter how much cross-examination occurred of the husband, it came back to the same problem:  he has not been able to explain a whole series of, not just transactions, but circumstances that objectively support the transactions.  Perhaps that might have been done by some other method but, at this stage, the wife is still none the wiser.  It seems to me that those are circumstances that justify an order. 

3. The question is whether or not an order should be made.  I have previously canvassed those issues back in July and made an order for $3000. 

4. The request today is for $4500.  Having regard to what I said on the last occasion, it is reasonable for instructors to be present.  This is not a simple matter.  I am comforted by the fact that the husband now has legal representation, but in the circumstances it would not be appropriate to reserve the costs because, if I did so, I would be giving that responsibility to some other judge to try and sort out.  The husband has not done what he should have done comprehensively to sort the problem out and an order for costs of $3000 similar to what I made on 24 July should be ordered. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 August 2013.

Associate: 

Date:  3 September 2013