FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mason & Mason (No 3) [2023] FedCFamC1F 297
File number: SYC 6981 of 2021 Judgment of: BRASCH J Date of judgment: 21 April 2023 Catchwords: FAMILY LAW – COSTS – Costs arising from Contempt Application – Where three charges prosecuted by wife – Where prima facie case not established on two of the three charges – Where one charge proceeded to further hearing – Where that charge not made out as a flagrant challenge to the authority of the court - Where wife’s application dismissed – Where husband sought costs on party/party basis or scale in the alternate – Where wife resisted the making of any costs order – Where wife unsuccessful – Where asset pool is at least $17 million – Costs Order made and to be met from the wife’s entitlement in the ensuing s 79 of the Family Law Act 1975 (Cth) proceedings set down for September 2023 Legislation: Family Law Act 1975 (Cth) ss 4(1), 79, 112AD, 117(1), 117(2), 117(2A)(a)-(g), 117(4), 117(4A), 117(5), 117(6)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17(1)(a)
Cases cited: Bondelmonte v Bondelmonte (2016) 55 Fam LR 65; [2016] FamCAFC 48
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158
In the Marriage of Schwarz (1985) FLC 91-618
Mason & Mason (No 2) [2023] FedCFamC1F 72
Mason & Mason [2023] FedCFamC1F 18
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Prantage & Prantage (Costs) [2014] FamCA 850
Rankin and Rankin (No 3) [2019] FamCAFC 133
Sfakianakis& Sfakianakis (2019) 59 Fam LR 419; [2019] FamCAFC 54
Division: Division 1 First Instance Number of paragraphs: 53 Date of last submissions: 6 April 2023 Date of hearing: 20 January and 14 February 2023 Place: Sydney Counsel for the Applicant: Mr Jones SC Solicitor for the Applicant: Barkus Doolan Winning Solicitor for the Respondent: Lander & Rogers ORDERS
SYC 6981 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MASON
Applicant
AND: MR MASON
Respondent
order made by:
BRASCH J
DATE OF ORDER:
21 APRIL 2023
THE COURT ORDERS THAT:
1.The wife pay the husband’s costs of the Amended Application - Contempt filed 25 November 2022, in the sum of $53,099.14.
2.The wife’s payment of those costs is to be paid from her entitlement when the parties’ s 79 proceedings are determined.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence,…
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- AGLC
- Mason & Mason (No 3) [2023] FedCFamC1F 297
- Case
- [2023] FedCFamC1F 297
- Decision Date
CaseChat Overview and Summary
In Mason & Mason (No 3), the wife filed written submissions opposing the making of any costs order. The case concerns the financial dispute between the parties, who are married and have separated. The husband and wife operated a farming partnership and another business together, with the wife primarily responsible for the books of accounts. The wife agreed that the husband managed the day-to-day operations of the farm during the marriage and post-separation. The wife also agreed that the parties' pool of assets was at least $17 million. The legal issues the court had to decide were whether the husband had established any circumstances justifying a costs order in his favour and, if so, on what basis the wife should pay the husband's costs.
The court concluded that certain circumstances justified making an order for costs, including the material adversity to the financial position of the wife, the parties' impending trial over the $17 million pool, and the fact that the wife chose to file a Contempt Application and failed on all three charges. The court found that the husband had not made sufficient submissions to assist the court in determining why a party/party basis for costs should be ordered, and the wife had not challenged any line items. Therefore, the court fixed the husband's costs at $53,099.14, as set out in the husband's submissions, by reference to the scale. The court also ordered that the sum be paid from the wife's entitlement when the s 79 proceedings are determined, taking into account the wife's contention that she is currently cash poor.
The court's decision highlights the importance of providing sufficient particulars of the costs claimed and challenging the costs claimed to enable the court to assess the costs. The court also emphasised that material adversity to the financial position of a party cannot be a bar to a costs order. The court's order for costs is a significant aspect of the case, given the parties' substantial pool of assets and the impending trial over the distribution of those assets.
The court concluded that certain circumstances justified making an order for costs, including the material adversity to the financial position of the wife, the parties' impending trial over the $17 million pool, and the fact that the wife chose to file a Contempt Application and failed on all three charges. The court found that the husband had not made sufficient submissions to assist the court in determining why a party/party basis for costs should be ordered, and the wife had not challenged any line items. Therefore, the court fixed the husband's costs at $53,099.14, as set out in the husband's submissions, by reference to the scale. The court also ordered that the sum be paid from the wife's entitlement when the s 79 proceedings are determined, taking into account the wife's contention that she is currently cash poor.
The court's decision highlights the importance of providing sufficient particulars of the costs claimed and challenging the costs claimed to enable the court to assess the costs. The court also emphasised that material adversity to the financial position of a party cannot be a bar to a costs order. The court's order for costs is a significant aspect of the case, given the parties' substantial pool of assets and the impending trial over the distribution of those assets.
Orders
Orders of the court
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Background
Background to the litigation
On 6 April 2023, the wife filed written submissions opposing the making of any costs order.BACKGROUND As said in Mason & Mason [2023] FedCFamC1F 18 at [6]-[9]:There was little, if any, background information about the parties’ relationship in the material before me. However, from cross-examination of the wife it seems that the parties commenced cohabitation in 1992, married in the same year and separated on 20 June 2021. In cross-examination, reference was made to the parties’ children [X] and [Y].When together, the husband and wife operated a farming partnership and [another] business. The wife agreed in cross-examination that the husband managed the day to day operation of the farm during the marriage and post separation. The wife also agreed that she was primarily responsible for the books of accounts for the enterprises. The wife is [a finance professional].The wife also agreed the husband established the […] business with a third party and that she was not involved with its day to day running. She was however the director of [C Pty Ltd], which ran (through a trust) an Airbnb property at [Suburb D].The wife agreed that the parties’ pool of assets was at least $17 million.Material – costs I have previously listed the material each party relied upon in the Contempt Reasons. The wife relied upon the following additional material in relation to costs:·Written Submissions filed 6 April 2023 (“Wife’s written submissions”); and·Financial Statement filed 16 December 2022. The husband relied upon the following additional material in relation to costs:·Written Submissions filed 13 March 2023 (“Husband’s written submissions”). Both parties filed Costs Notices prior to each hearing of the Application - Contempt.Costs Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that each party will bear their own costs. That general rule is subject to s 117(2), which provides that a court may make such order for costs as it considers just if “…the court is of opinion that there are circumstances that justify it in doing so…”. The factors that are to be considered when contemplating the making of a costs order are those set out in s 117(2A) of the Act; albeit the court may give such weight as it considers appropriate to any relevant factor (Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24]). It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient; Prantage & Prantage (Costs) [2014] FamCA 850 at [12]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123 at [41]. The first issue to address is has the husband established any circumstances which justify departing from the position that each party pay their own costs and the making of a costs order in his favour. The second question is whether, if there are circumstances justifying a costs order, on what basis should the wife should pay the husband’s costs – for example as was said in Sfakianakis& Sfakianakis (2019) 59 Fam LR 419 at [10]:It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs ... as the court considers just” permit the Court to fashion an order that is apt to the circumstances. One such well-known example is assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order. ...Has the husband established any circumstances which justify departing from the position that each party pay their own costs, and the making of a costs order in his favour(a) the financial circumstances of each of the parties to the proceedings;
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Subsections 117(4) and (5) concern Independent Children’s Lawyers; this is irrelevant. Section 117(4A) is also irrelevant dealing as it does with s 91B interventions. Subsection 117(6) is about guardians ad litem. It is irrelevant.Conclusion on justifying circumstances In the exercise of my discretion, I conclude that the following circumstances justify making an order for costs:(a)material adversity to the financial position of the wife, as she contends, cannot be a bar to a costs order the same way as impecuniosity is not;(b)as part of the financial circumstances of the parties, the parties will be having a trial over the $17 million pool (at least) in a matter of a few months; and(c)whilst the husband admitted to contravening one order, it was the wife who chose to file a Contempt Application and failed on all three charges.On what basis should the husband should pay the wife’s costs The husband sought costs on a party/party basis in the sum of $62,848. Looking at the husband’s schedule, I cannot see how that sum is calculated. In the alternative, the husband sought costs according to scale in the sum of $53,099.14. On my calculations, the correct figure is $53,100.03 but little turns on that. The breakdown of costs sought by the husband was set out in his written submissions. Unfortunately, the husband did not make any submissions to assist me as to why I might make costs on a party/party basis. I am also unsure how the figure in submissions was arrived at. That has not been helpful. Equally unhelpfully, whilst I appreciate the wife submits each party bears their own costs of the Contempt, the wife too did not make any alternate submission on the basis or quantum of the costs sought, or challenged any of the line items. The “Court is not obliged to, nor should it attempt, something akin to a taxation of costs undertaken by an assessor” (Rankin and Rankin (No 3) [2019] FamCAFC 133 at [23]). Only where the parties have provided sufficient particulars of the costs claimed, and there has been a sufficient challenge to the costs claimed, would the Court be in a position to assess the costs. The particulars have been provided but the challenge to those specifics is not sufficient. Disposition Rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) allows me to fix costs. Thus, I will fix the husband’s costs in the sum of $53,099.14, as set out in submissions. That is by reference to scale. In circumstances where I cannot ascertain why I would order party/party costs I will therefore rely on the scale. I will also not cavil with the particulars, given as the wife did not challenge any line items. The husband sought that costs be paid to him within 28 days of the making of any costs order. The wife made no alternate submissions on timing. Whilst I do not consider the wife’s contention that she is currently cash poor to be a bar to the making of a costs order, I do take it into account with respect to the timing of the payment. I will therefore order that the sum of $53,099.14 be paid from the wife’s entitlement when the s 79 proceedings are determined.
Ratio Decidendi
Legal Principle Established
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