Lovine & Connor

[2012] FamCA 280

FAMILY COURT OF AUSTRALIA

LOVINE & CONNOR AND ANOR [2012] FamCA 280

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Lovine

RESPONDENT: Ms Connor

INTERVENOR: X Investments Pty Ltd

FILE NUMBER: MLC 9419 of 2009

DATE DELIVERED: 1 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. That the application of the wife pursuant to paragraph 5 of the orders made on 8 September 2011 by way of written submission filed 30 September 2011 is dismissed.

2. To the extent that the paragraph 21 of the submissions of the wife filed 14 October 2011 amounts to an application for costs, that application is also dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lovine & Connor and Anor 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 9419  of 2009

Mr Lovine

Applicant

And

Ms Connor

Respondent

And

X Investments Pty Ltd
Intervenor

REASONS FOR JUDGMENT

1. On 8 September 2011, I made a variety of orders and provided that parties could make submissions in writing as to costs. 

2. On 30 September 2011, the wife applied for costs against the husband arising out of the husband’s applications in a case filed 4 July 2011 and 12 August 2011.

3. In essence, the dispute was about whether or not there should be a stay of proceedings pending an appeal and also whether the wife should return chattels to a home arising out of the orders of Mushin J made 10 June 2011.

4. The wife sought orders for the payment of invoices associated with building construction on a property that was a part of the pool of assets involved in the hearing before Mushin J but that application did not proceed.

5. Accordingly, I am asked to make orders for costs arising out of the determination that I made refusing the stay pending the appeal and dismissing the husband’s application for the return of the chattels taken by the wife.

6. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party shall bear their own costs unless there are circumstances that a court finds justify making an order for costs. In determining whether there are justifiable circumstances, the Court must take into account the matters set out in s 117(2A).

7. In this case, the circumstances do not justify a departure from that principle.

8. The application for the stay pending the appeal was unsuccessful.  I will not repeat the reasons for the refusal.

9. The husband’s application for the return of the chattels was unsuccessful because he could not prove ownership.  The wife’s submission relating to costs said that it was found that she had not breached the orders.  Whilst technically that is true, the reality is that the husband did not prove his case.  I found that I did not know who was the owner of the chattels and to the extent that by inference, they belonged to the husband by virtue of his control of a trust arising out of the property proceedings, that issue was at best unclear and at worst not proved.  Both parties contributed to that confusion.

10. In respect of the appeal, it was submitted that the wife had made an offer to give an undertaking about not disposing of the relevant property pending an appeal.  I accept that that was an offer but that it had little impact on the determination.  The major determining factor was that a refusal would not render the appeal nugatory having regard to the financial circumstances of both parties.

11. I accept that the husband was unsuccessful but that is only one of the factors that is relevant as set out in s 117(2A) of the Act. Despite the fact that there is a clear income imbalance favouring the husband, both parties are reasonably affluent and each had the advice of experienced lawyers. It could not be said in this case that the husband used his wealth or experience as a professional person to the prejudice of the wife.

12. This was unfortunately a case that had to be litigated to clear up some confusion because of the chattels issue.  It would be difficult to apportion costs as between the two issues.

13. The wife argued that she wanted the Court to determine the construction invoices issue associated with the property arising out of the family law settlement but the husband had not opposed that issue being put off because of the fact that the wife had filed material only days before.  In the costs submission, the wife indicated that she was prepared to run the case that day but the husband was not and therefore she should have her costs associated with that application being adjourned. 

14. In my view, the question of the costs associated with that application is to be determined at the time that the substantive issue is heard.

15. In this case, there are no justifying circumstances that warrant a departure from the principle that each party should pay their own costs.  Accordingly the application for costs by the wife is dismissed.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 May 2012.

Associate: 

Date:  1 May 2012