Miley & Miley (No 2)
[2024] FedCFamC1F 513
•13 August 2024
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 general rule at ss (1) is that each party to proceedings in these Courts meets his or her own legal costs.
That general principle is, however, subject at ss (2) to a discretion being enlivened in a court to make an award for costs if there are “justifying circumstances”. In determining whether there are justifying circumstances and if the discretion should be exercised the Court is mandated to reference each of the considerations under s 117(2A). It is well established that the term justifying circumstances is not to be read as synonymous with extraordinary circumstances.
The interrelationship between ss 117(1) and (2) was considered by the High Court in Penfold v Penfold[1] where their Honours said at pages 75-053 to 75-054:
It is an accurate description of sec. 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to sec. 117(2). As subsec (1) is expressed to be subject to subsec. (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under sec 117(2) in a “clear case”.
Subsection (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order… Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised…
[1] (1980) 144 CLR 311; (1980) FLC 90-800; [1980] HCA 4.
The discretion in the Court, therefore, to make an award for costs is a broad one.[2]
[2] Paysen & Laukien (2020) FLC 93-960; [2020] FamCAFC 101.
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) FACTORS
Section 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
The Court is not informed of any offers for settlement relevant to the costs application.
Section 117(2A)(g) such other matters as the court considers relevant.
No other relevant matters were raised.
In circumstances where neither party achieved the distribution of the property pool sought at the trial and where there were no offers of settlement in proper form, I do not find circumstances justifying the exercise of my discretion in favour of the wife’s application. As such, the wife’s application for the costs of and incidental to the trial will be dismissed.
THE WIFE’S APPLICATION FOR COSTS – INTERLOCUTORY MATTERS
The wife seeks an order that the husband pay costs in a total of $36,200 in respect of various appearances before Senior Judicial Registrars or, on one occasion, a judge of this court in respect of the eight separate appearances being:
(a)9 December 2021;
(b)15 December 2021;
(c)11 February 2022;
(d)27 January 2022;
(e)12 May 2022;
(f)25 July 2022;
(g)20 December 2022; and
(h)30 January 2023.
On 11 February 2022 the matter was listed before a Senior Judicial Registrar who made one mutual restraint order but adjourned the remainder of extant applications to 12 May 2022. The preamble to the order notes there being no appearance by the husband whilst the wife was represented by counsel.
The wife seeks her costs.
On 25 July 2022 the matter was listed before a Senior Judicial Registrar. The orders show only that all extant interim applications be dismissed and that the costs of the parties of that day be reserved. The wife was represented by counsel. The husband appeared in person.
In the submissions before me the husband conceded that the matter had been listed that day because he had not complied with a court order.
The husband conceded that he should meet the costs of that day. The wife estimates costs of $5,800 inclusive of her counsel and solicitor. I find such a quantum to be reasonable. There will be an order that the husband pay the costs of the wife of and incidental to the appearance on 25 July 2022.
In respect of the remaining seven events, the wife’s affidavit is silent as to the particulars. In submissions before me she was unable to further particularise the events of each appearance save and except to say that they each stemmed from orders of 4 October 2021 which provided for some mutually specific discovery, the return of a motor vehicle to the husband; and the procuring of a loan facility up to $200,000.
The wife was unable to further particularise the basis of her costs application save and except she argued on one occasion being 9 December 2021 that the husband did not attend court. The orders of the Senior Judicial Registrar confirm there being no appearance by the husband. In submissions before me, however, the husband was able to produce a letter from the Federal Circuit and Family Court of Australia dated 16 December 2021 confirming that the Court had utilised an incorrect email address for the husband as evidenced by the concluding paragraph to that letter thus:
I would like to assure you that the issues you have raised in your correspondence have been taken seriously. It is always disappointing when the service provided by court staff is not perceived as being at the standard clients expect. Your concerns are valuable means by which the Court can monitor its quality of service and make improvements.
In all the circumstances where the failure to appear by the husband cannot be attributed to him, I can find no justifying circumstances for making a costs order.
In respect of the other remaining applications for costs, they are based on generic orders such as “costs of the day be reserved in the proceedings”. Where the wife particularises nothing more than the general comments in respect of the husband, I am unable to make findings of fact which provide justifying circumstances for the making of costs orders. As such, those application will be dismissed including the application in respect of the order of 11 February 2022.
As such, there will be an order that the husband pay the wife’s costs of the appearance of 25 July 2022 in a quantum of $5,800. I will give the husband 30 days in which to make payment.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 13 August 2024
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