M and J - [2003] FMCAfam 186

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & J

[2003] FMCAfam 186

FAMILY LAW – Costs after proceedings discontinued on day of hearing.

Family Law Act, ss.79A, 117

Applicant:

S A M

Respondent:

K B J

File No:

DNM 2013 of 2002

Delivered on:

31 March 2003

Delivered at:

Darwin

Hearing Date:

31 March 2003

Judgment of:

Brown FM

REPRESENTATION

Counsel for the applicant:

In person

Counsel for the respondent:

Ms Elliott

Solicitors for the respondent:

Diana Elliott

ORDERS

That upon the wife filing a notice of discontinuance in respect of her Form 48 application filed 16 January 2003, 19 February 2003 and her application filed 10 January 2003, it is ordered that she pay the husband’s costs in the sum of $400 within 28 days of today's date.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM 2013 of 2002

S A M

Applicant

And

K B J

Respondent

REASONS FOR JUDGMENT

This afternoon I have to deal with the matter of M and J. It is a complicated matter. The applicant in the proceedings is S A M and the respondent is K B J.
The proceedings before this Court since April of 2002, have been property proceedings. The competing applications went to a conciliation conference, which did not resolve matters, as I recall but the matter was finally settled between the parties with a consent order, which was made on 17 December 2002.
Pursuant to those orders, the parties agreed that the husband would transfer to the wife all his interest in the former matrimonial home at 12 M C, Malak, and contemporaneously with the transfer, the wife would release the husband from all encumbrances over the property including a supplementary loan and would indemnify him in respect of those encumbrances. In consideration of the transfer the wife was to pay the husband the sum of $3,000. An order was made for the husband to remove one air-conditioner, which was a fixture, provided that he repair any damage caused by the removal. He was to be declared the owner of a mobile disco business and its equipment. Finally, an order was made that otherwise each of the parties should retain all property and chattels in their possession as at the date of the orders.
I made those orders at the request of the parties on 17 December 2002. At that stage I thought that would finalise matters between the parties. That was unfortunately not the case, because on 10 January the wife brought an application in which she sought an order that the orders to which I have referred be changed. In particular she sought payment to her, as I understand it, of some moneys relating to mortgage arrears and rates and other outgoings in respect of the property. She also brought a contravention application at the same time. She said that Mr J had refused to sign the necessary documentation to facilitate the transfer of M C into her name. Those applications came before me on 18 February 2003. I referred the parties to mediation and made orders by consent that that property in Malak could be rented in the interim.
It seems there was considerable dispute between the parties as to whose responsibility it was to prepare the necessary documentation for the transfer and about whether the necessary money had been paid or whether it had not been paid. There was a great deal of heat in the situation. Also of great importance to the parties, is an allegation that the wife has made that there has been a great deal of damage to the property in respect of the removal of the air-conditioner.
On 18 February Mr J was represented by his solicitor,

Ms Elliott, Ms M appeared on her own behalf. She has prepared all these various applications and several affidavits in support of them.
A further application for contravention of order was filed by the wife on 19 February 2003. The detail of the contravention was that

Mr J had failed to repair the damage done by the removal of the air-conditioner. Anyway, the matters were fixed for hearing today although I was perhaps naively hopeful that the mediation between the parties that I had ordered, might resolve some of these issues, it being apparent to me that neither party was in a strong financial position and accordingly not in a position to fund a contested hearing.
This afternoon Ms M has filed a notice of discontinuance for each of those applications and as a result Ms Elliott has made an application for her client's costs, certainly for the period from
18 February onwards. It seems that after 18 February, Ms M did pay the $3,000 that was referred to in the property consent orders and the title documents to transfer the M C, Malak, property from the parties' joint names to her name alone has been done.
As I understand it, her complaint is that Mr J should have paid some moneys to keep the mortgage, or at least his share of the mortgage and other loans, up to date prior to the transfer of the property to her. This was the reason for the delay and her failure to pay the money due. She has also, I understand, brought other proceedings in the Local Court in respect of the damage to the property.
It is Ms Elliott's position that her client has been put to expense in defending each of the contravention applications, which in her submission had no possible chance of success and in those circumstances it is only fair and equitable that Ms M should pay her client's costs, which she estimates at around $800.

Ms M opposes that application. She submits that she received the answering affidavit material on 27 March or later, 28 March, the Friday before today and she says in essence that she has decided not to go ahead with these applications because of the stress of the matter and also because she believes that she will be successful in the Local Court, although I am not fully aware what her cause of action is.
At any rate, it is clear that she has abandoned the two enforcement applications. She told me that the cost of repairing around the air-conditioner were modest and she does not believe it is warranted to go ahead with that matter and I take it that she does not believe now that it is appropriate for her to pursue her application pursuant to s.79A, which I regard as the appropriate avenue to change the earlier consent order.
It is her position that she is in a difficult financial position. She has had to borrow money to pay outstanding debts in respect of the property and she points to what she says are enormous expenses in respect of other necessary repairs to the property. I do not know anything about that, I do not know the truth or otherwise of any of those assertions. There has been a great deal of emotion throughout these proceedings, between the parties, that is not uncommon in this Court.
The main difficulty I think in this matter is that Ms M has not been legally represented for some time in these proceeding, she says she is not in a position to retain a solicitor. It seems there is a great deal of suspicion between the parties themselves and also between Ms M and Ms Elliott. I am not in a position to ascertain whether or not somebody is to blame for that.
Applications for costs are governed by s.117 of the Family Law Act. Generally speaking, the rule is that each party should bear their own costs in respect of proceedings under the Family Law Act. However, if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to the matters set out in sub-section 2A make an order for costs, as it considers just. The matters that I need to take into account are the financial circumstances of each of the parties; whether any party to the proceedings is in receipt by way of legal aid and if so, the terms of the grant of that assistance to that party, the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of fact, productions of documents and similar matters; whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court; whether any party to the proceedings has been wholly unsuccessful in the proceedings; whether either party to the proceedings has in accordance with s.117C or otherwise made an offer in writing to the other party in the proceedings to settle the proceedings and the terms of any such offer; and any such other matter as the Court considers relevant.
In this matter, I would have thought the orders of December were comparatively clear. I think, as I say, that the difficulty in the orders being completed stems largely from Ms M not being legally represented. There does seem to have been some dispute between the parties as to what was going to happen in respect of mortgage payments prior to that date. The orders were silent in that regard. I am not in the position to ascertain whether one or other of the parties is at fault in that matter, as Ms M has discontinued her application.
Ms M is not in a strong financial position. I accept that, she has had to borrow money; that she has recently given birth to a child; that she is a childcare worker by occupation and has only earned $13,000 since July of 2002. She has all the expenses that go with having a five month old child. She has some equity in the M C property but it is modest. She also has some equity in the rental unit.
I have not heard about Mr J's financial circumstances but I have no doubt that he is not particularly well-off financially. Neither party are in receipt of legal aid. The issue, really, comes down to the conduct of the parties to the proceedings to date. It is Ms Elliott's complaint that if these proceedings had been withdrawn at an earlier stage, she would not have had to have come today, nor would she have had to prepare affidavit material on behalf of her client. I think there is much merit in that.
As a result of the discontinuance of the proceedings, the applications are each brought to a close so there will be no adjudication. So I am not in a position to know the truth or otherwise of many of the allegations that were made in the affidavit material. There is a desirability that litigation be finalised between parties. However, proceedings such as this one and the property matters in respect of them can be complicated matters. It is difficult for unrepresented litigants. It is difficult for them to prepare documents in regards to the transfer of properties.
I think it would be proper that some order be made for costs but bearing in mind the financial circumstances of Ms M and bearing in mind that Ms Elliott has frankly said to me, and I appreciate that she was in Court today in respect of other matters and was at Court in respect of other matters in February, that I will not make an order for all the costs that are sought. I am going to make an order that the wife pay the sum of $400 costs towards Mr J's legal costs within 28 days of today's date, which is one half of the amount sought by the husband.
So, that upon the wife filing a notice of discontinuance in respect of her Form 48 application filed 16 January 2003, 19 February 2003 and her application filed 10 January 2003, it is ordered that she pay the husband’s costs in the sum of $400 within 28 days of today's date.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Brown FM

Deputy Associate: Cathy White

Date: 30 May 2003