Miley & Miley (No 2) - [2024] FedCFamC1F 513

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Miley & Miley (No 2) [2024] FedCFamC1F 513

File number: MLC 5852 of 2021

Judgment of: MCGUIRE J

Date of judgment: 13 August 2024

Catchwords: FAMILY LAW - COSTS - Where an application for costs is made following substantive proceedings – application for costs in respect of eight separate appearances or interlocutory matters – where no order for costs is made on the substantive proceedings – where only one order for costs is made for the appearance on the 25 July 2022

Legislation: Family Law Act 1975 (Cth) ss 117, 117(2A)(a) to (g)

Cases cited:
Paysen & Laukien (2020) FLC 93-960; [2020] FamCAFC 101

Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800; [1980] HCA 4

Division: Division 1 First Instance

Number of paragraphs: 40

Date of hearing: 18 July 2024

Place: Melbourne

Solicitor for the Applicant: Litigant in Person

Solicitor for the Respondent: Litigant in Person
ORDERS

MLC 5852 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MILEY

Applicant

AND:
MR MILEY

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

13 AUGUST 2024

THE COURT ORDERS THAT:
1.The husband, Mr Miley, pay the costs of the wife, Ms Miley, of the appearance of 25 July 2022 in a sum of $5,800 such to be paid within thirty (30) days of the date of these Orders.
2.That all extant applications be otherwise dismissed.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Miley & Miley (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J:
APPLICATIONS

Where the parties have finalised property matters, the only issues remaining between them are the wife’s various applications for costs. Firstly, she applies for the costs of and incidental to the substantive property proceedings in a quantum of $200,000. Secondly, she applies for costs in respect of eight separate appearances or interlocutory matters where seven of the applications relate to appearances before Senior Judicial Registrars and one in respect of a formal appearance before another Division 1 Judge of this Court.
The Respondent husband opposes each application for costs.
RELEVANT LAW
Matters of costs are dealt with at s 117 of the Family Law 1975 (Cth) (“the Act”) where the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Miley & Miley (No 2)

Details

AGLC: Miley & Miley (No 2) [2024] FedCFamC1F 513
Case: [2024] FedCFamC1F 513
Decision Date: 13 August 2024

CaseChat Overview and Summary

The case of Miley & Miley (No 2) involved a costs hearing following substantive proceedings between the parties, Ms Miley and Mr Miley, who were married and subsequently separated. The substantive proceedings included a trial over a three-day period, with the wife represented by solicitors and counsel and the husband representing himself. The dispute centred on the division of their property pool and the wife's application for costs in respect of eight separate appearances or interlocutory matters. The wife sought costs based on her initial application for a 50/50 division of the property, which aligned with the final orders, and allegations of the husband's mala fides in the litigation process. The husband denied any allegations of bad faith and argued that he had properly defended the claims made by the wife.

The court had to determine whether the wife was entitled to costs for the interlocutory appearances and the substantive hearing. The considerations included the financial circumstances of both parties, the conduct of the parties during the proceedings, and whether any party had been wholly unsuccessful. The court found that neither party had been wholly successful as they did not achieve their desired property distribution. However, the court did find that the husband's conduct warranted an order for costs in relation to one specific appearance on 25 July 2022. The court ordered that the husband pay the wife $5,800 for the costs of that appearance, to be paid within thirty days. All other applications for costs were dismissed.

Orders

Orders of the court

MLC 5852 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MILEY

Applicant

AND:

MR MILEY

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

13 AUGUST 2024

THE COURT ORDERS THAT:

1. The husband, Mr Miley, pay the costs of the wife, Ms Miley, of the appearance of 25 July 2022 in a sum of $5,800 such to be paid within thirty (30) days of the date of these Orders.

2. That all extant applications be otherwise dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Each party represents himself or herself in this costs hearing. RELEVANT BACKGROUND The parties commenced cohabitation in 1999. They married in early 1999. They separated on 1 October 2018. There are two now adult children of the marriage. The wife commenced these proceedings as the applicant. Her initial application sought a 50/50 division of the property pool. Her proposed orders and percentage distribution varied throughout the proceedings including during the trial. In her counsel’s final submissions, she sought 65 per cent of the property pool inclusive of superannuation. The husband sought final property orders, also on a one pool basis, whereby he received 55 per cent of the property pool and the wife received 45 per cent. The trial occupied three days of court time. The husband represented himself at the trial. The wife was represented by solicitors and counsel. The wife’s case argued for a 15 per cent loading to her on account of asserted superior contributions with no adjustment on s 75(2) factors. The husband sought an equalisation of contributions and a 5 per cent adjustment to him on account of s 75(2) factors. There were a number of complexities at the trial in respect of contributions including towards overseas property and inheritances. There were valuation issues. The orders that I made provided for a 50/50 division of the property pool on a one – pool basis inclusive of superannuation. In this sense, neither party achieved the orders that they sought in final submissions.THE WIFE’S COSTS OF THE SUBSTANTIVE HEARING The wife appeared self-represented on the costs argument applications. Her application appeared to have two broad bases:(1)that the wife’s initiating application sought a distribution of the property on a 50/50 basis which is consistent with the final orders made; and(2)that the husband pursued the litigation with mala fides in that he was uncooperative in the disclosure process, brought spurious interlocutory applications, and had carried through a form of “threat” allegedly made by him to the wife of causing her undue expense in the obtaining of property orders noting that she was represented by solicitors and counsel whereas the husband acted for himself at the trial. The husband’s submissions in response were short. He denied any allegations of mala fides and implicitly argued that he properly defended the varying claims made by the wife throughout the proceedings noting issues which required resolution such as valuations and, also implicitly, that the wife did not achieve her ambition for a 65/35 per cent distribution of the property pool.CONSIDERATION OF THE SECTION 117(2A) FACTORSSection 117(2A)(a) the financial circumstances of each of the parties to the proceedings; The property pool settled at some $5,282,000E. The husband suffers poor health but, on my findings, sought to underplay actual and potential income where he had conceded an income of the previous financial year of $140,000. I found the wife also had the capacity to earn income to supplement her wealth after the distribution of the parties’ property pool.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The husband’s submissions in response were short. He denied any allegations of mala fides and implicitly argued that he properly defended the varying claims made by the wife throughout the proceedings noting issues which required resolution such as valuations and, also implicitly, that the wife did not achieve her ambition for a 65/35 per cent distribution of the property pool.CONSIDERATION OF THE SECTION 117(2A) FACTORSSection 117(2A)(a) the financial circumstances of each of the parties to the proceedings; The property pool settled at some $5,282,000E. The husband suffers poor health but, on my findings, sought to underplay actual and potential income where he had conceded an income of the previous financial year of $140,000. I found the wife also had the capacity to earn income to supplement her wealth after the distribution of the parties’ property pool. I do not find any great disparity in the financial circumstances of the parties such that would be either determinative or weighty in this costs consideration. Section 117(2A)(b) whether any party 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; Neither party received legal aid.Section 117(2A)(c) 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 facts, production of documents and similar matters; The wife relies to a degree on this factor. She says that the husband argued the case essentially so as to cause her undue costs. This assertion, however, is not made out by the fact that the wife herself by the time of closing submissions was seeking 65 per cent of the property pool but achieved only 50 per cent. In any event, she does not particularise the broad assertions that she makes. The nature of litigation is that a party must be fully informed as to the financial circumstances of the other before realistically reaching a resolution. The evidence in this matter suggested that issues remained alive between the parties until the conclusion of the evidence and where issues of valuation and the like remained controversial. Secondly, the wife argues that the husband was not forthcoming or properly forthcoming with his obligation to make disclosure. Again, she does not particularise these assertions so as to allow me to make any findings of fact contrary to the husband.Section 117(2A)(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court; The wife may argue generally as to this factor but perhaps more properly in her applications for costs from interlocutory proceedings.Section 117(2A)(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; Quite simply, neither party achieved the orders that they sought in their final submissions and after the completion of the evidence. The wife might argue that her initiating application sought a 50/50 division of the property which was in accordance with the final orders. However, again the husband might not be expected to reasonably accept such a proposal made in an initiating application before being informed by the proper disclosure and interlocutory process where indeed matters remained in dispute until the completion of the evidence at the trial and where, at least some of those matters were resolved in favour of the husband.Section 117(2A)(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

File number:	MLC 5852 of 2021
Judgment of:	MCGUIRE J
Date of judgment:	13 August 2024
Catchwords:	FAMILY LAW - COSTS - Where an application for costs is made following substantive proceedings – application for costs in respect of eight separate appearances or interlocutory matters – where no order for costs is made on the substantive proceedings – where only one order for costs is made for the appearance on the 25 July 2022
Legislation:	Family Law Act 1975 (Cth) ss 117, 117(2A)(a) to (g)
Cases cited:	Paysen & Laukien (2020) FLC 93-960; [2020] FamCAFC 101 Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800; [1980] HCA 4
Division:	Division 1 First Instance
Number of paragraphs:	40
Date of hearing:	18 July 2024
Place:	Melbourne
Solicitor for the Applicant:	Litigant in Person
Solicitor for the Respondent:	Litigant in Person

MLC 5852 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MILEY Applicant
AND:	MR MILEY Respondent

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	13 AUGUST 2024