MacDougal and Benson and Anor

[2015] FamCA 799

FAMILY COURT OF AUSTRALIA

MACDOUGAL & BENSON AND ANOR [2015] FamCA 799

FAMILY LAW – PROPERTY – COSTS – Applicant’s application for costs where the respondent has failed to comply with a disclosure order – where further proceedings were necessitated by the respondent’s failure to comply with previous orders of the court – ordered that the respondent pay the applicant’s costs in respect of counsel’s fees.

Family Law Act 1975 (Cth)

APPLICANT: Mr MacDougal

FIRST RESPONDENT: Ms Benson

SECOND RESPONDENT: Mr Benson

FILE NUMBER: MLC 1674 of 2013

DATE DELIVERED: 27 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 27 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stoikovska

SOLICITOR FOR THE APPLICANT: Forte Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Cummings

SOLICITOR FOR THE FIRST 

RESPONDENT:

Lennon Mazzeo

COUNSEL FOR THE SECOND RESPONDENT: Mr Perl

SOLICITOR FOR THE SECOND

RESPONDENT:

HWL Ebsworth Lawyers

Orders

IT IS ORDERED THAT:

1. The wife pay the husband’s costs fixed in the sum of $1200, those costs to be paid out of the wife’s entitlements to property settlement.

2. The matter be otherwise listed for mention before Justice Macmillan at 9.30 am on 2 April 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym MacDougal & Benson 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 1674 of 2013

Mr MacDougal

Applicant

And

Ms Benson

First Respondent

And

Mr Benson
Second Respondent

REASONS

1. On 4 March 2015, I made an order that within two days from the date of that order the wife produce to the husband any statements or records of interview made by her to the police with respect to the fire at the Suburb H property on 18 February 2015, subject to any objection in writing by Victoria Police to the production of same, as well as any statements of records of interview made by any of the parties’ children with respect to the fire at the Suburb H property on 18 February 2015, subject to any objection in writing by Victoria Police to the production of same. 

2. On 18 March 2015, the solicitors for the husband forwarded a letter to the Court requesting a mention of this matter on the basis of the wife’s failure to comply with that order.  It was on that basis that the matter was listed for mention for hearing before me this day.  There is no dispute that the wife’s police statement was provided to the solicitors for the husband on 20 March 2015, although it was in a redacted form.  The statement given to the police by the eldest child of the marriage, S, was not produced until 2.08 pm on 26 March 2015.  The parties were notified that this matter would be listed for mention this day on 23 March 2015. 

3. Ms Stoikovska, who has been in this matter for some significant period, was briefed to appear on behalf of the husband.  It is not disputed, as was put by Ms Stoikovska, that there were some 13 letters sent by the solicitors for the husband to the wife with respect to these documents, together with telephone attendances both upon the wife’s solicitors and the police in an attempt to have the documents provided in accordance with that order.  Although it is submitted on behalf of the wife that a request was made to vacate the mention today, that request was not made until 2.08 pm yesterday, by which time Ms Stoikovska had already been briefed to appear. 

4. Parties in this Court generally bear their own costs. However, if the Court considers there are circumstances that justify it in doing so, the Court may, subject to certain provisions of the Act and the Rules, make such order as to costs as it considers just. Section 117(2A) of the Family Law Act 1975 (Cth) sets out the matters the court shall have regard to in considering what order, if any, should be made pursuant to section 117, subsection (2) of the Act. The Court is required to consider:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any parties to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings [...];

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings; 

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

   …;   

5. Clearly in this case, the significant factor is that this matter was listed for mention as a result of the wife’s failure to comply with the order made on 4 March 2015.  Although it is submitted on behalf of the wife that she has had significant medical issues that may have prevented her complying with the orders, it is a general assertion, and even if I accept that she has medical concerns – and that would appear to be the case – it is not ultimately clear. There is no evidence before me which would clarify the position and lead me to conclude that she could not have given instructions to have those statements provided in accordance with the orders that were made.  She did not seek to appeal.  The orders were clear and there is no explanation offered that would lead me to conclude that wife could not have complied. 

6. It is true that both parties would appear to be in difficult financial circumstances.  However, that is not in this case a reason for reserving an order for costs, although it may be a reason for making any order for costs payable out of the wife’s share of any property orders adjusting their property interests. 

7. Neither party is in receipt of legal aid and the other matters the court is required to consider are not particularly relevant. Whilst clearly the wife has now complied, it is not, strictly speaking, a question of one party being wholly successful or unsuccessful in this part of the proceedings. 

8. In all of the circumstances, I am satisfied that there are circumstances which justify the making of an order for costs in favour of the husband.  The order the husband seeks is for the payment of his counsel’s fee.  Her brief is marked at $1,200.  There were no submissions with respect to the quantum of her brief fee.  I am satisfied that it would be appropriate to make the order she seeks on behalf of the husband, noting that no order is sought for the costs incurred with respect to her instructing solicitor.  I am also satisfied, however, that there would not appear to be any immediate capacity to pay those costs. In those circumstances I am satisfied that it would be proper for an order to be made that they be paid out of the wife’s share.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 27 March 2015.

Associate: 

Date:  22 April 2015