Mirren and Mirren (No 3)

[2019] FamCA 915

FAMILY COURT OF AUSTRALIA

MIRREN & MIRREN (NO. 3) [2019] FamCA 915

FAMILY LAW – PRACTICE AND PROCEDURE – review of the decision of a registrar – where the husband sought to review the procedural orders of a registrar listing his application in December – where the husband submits an urgent hearing is required – where the matter is listed in the judicial duty list in approximately four weeks – husband’s application dismissed.

FAMILY LAW – COSTS – where the wife seeks her costs be paid by the husband – where the husband seeks that the parties’ costs be reserved – where the husband was wholly unsuccessful in his application – order that the husband pay the wife’s costs on a party-party basis.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

APPLICANT: Mr Mirren

RESPONDENT: Ms Mirren

FILE NUMBER: MLC 9896 of 2013

DATE DELIVERED: 13 November 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Kordos, Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Ms Swart

SOLICITOR FOR THE RESPONDENT: Kelly & McHale Family Lawyers

Orders

1. That the Application in a Case filed 23 October 2019 be dismissed.

2. That the time for filing documents pursuant to the orders dated 18 October 2019 be extended as follows:

   (a)The respondent to file documents pursuant to order 2 by 4.00pm on 18 November 2019; and

   (b)The applicant to file documents pursuant to order 3 by 4.00pm on 2 December 2019.

3. That the applicant pay the respondent’s costs of this day on a party-party basis as agreed or in the event of no agreement, to be assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mirren & Mirren has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9896 of 2013

Mr Mirren

Applicant

And

Ms Mirren

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today in a Judicial Duty List. The application before the Court is an Application in a Case filed on behalf of the husband on 23 October 2019, which is an application to review the orders made by Registrar Field on 18 October 2019.

2. The orders made by Registrar Field that day are procedural in nature, and relate to directions for the listing of an Application in a Case filed by the husband on 16 September 2019. 

3. The orders of Registrar Field provide as follows:-

   (1)The Application in a Case filed by the Husband on 16 September 2019 is adjourned to the Judicial Duty List on 10 December 2019 at 10.00 am.

   (2)No later than 11 November 2019 the Respondent file and serve an Affidavit in response to the Affidavit of the Husband filed on 16 September 2019.

   (3)No later than 25 November 2019 the Applicant file and serve any further Affidavit he seeks to rely upon.

4. It is those orders that are the subject of the review.  In order to understand that application, one needs to have some understanding of the long history of this matter before the Court.

5. Final property orders were made by consent by the Court on 16 December 2013. Those final property orders also included a notation, pursuant to s 81 of the Family Law Act 1975 (Cth) (“the Act”), that provided that it was the intention of the parties that the orders finalised the financial disputes between them.

6. Following the making of those orders, proceedings were commenced by the wife in December 2016 in relation to parenting matters. The husband cross-applied in relation to financial matters. Ultimately, the matters that were listed for hearing and determined by the Court in 2019 related to an application by the husband to either set aside the final property orders pursuant s 79A of the Act, or alternatively to have leave to review the decision of the registrar in respect of those orders.

7. That application was heard and determined by Wilson J in July of this year.  Orders were made by Wilson J on 14 August 2019 which provided an extension of time for leave to review the decision of the registrar made on 16 December 2013 to make orders in the terms of the minute of consent orders filed on behalf of the parties. 

8. The order made by Wilson J on 14 August 2019 is currently the subject of an appeal filed on behalf of the wife.  The Notice of Appeal was filed on her behalf on 10 September 2019.  I am informed by counsel and solicitor representing the parties today that that appeal is likely to be listed and heard in the first sittings of the Full Court of the Family Court of Australia in March 2020.

9. Since the filing of the Notice of Appeal, an application seeking a stay of the operation of those orders was filed on behalf of the wife.  Justice Wilson dealt with that application on 11 October 2019, and the application to stay the operation of his Honour’s orders was dismissed.

10. On 16 September 2019 the husband filed an Application in a Case.  That application sought orders that the final property orders made 16 December 2013 be reviewed, and that those orders be set aside.  In addition, paragraph 4 of the application seeks an order that within 48 hours the wife pay to the husband a sum of $400,000.  Further, paragraph 5 of the application seeks that the wife pay the husband’s costs of $104,890 plus counsel’s fees for the return of this application. 

11. Seemingly it is those parts of the application which are sought to be pressed on behalf of the husband this day.  It is his complaint that the initial indication by the registrar, when the matter first came before her on 2 October 2019, was that that application together with the stay application would be listed for hearing before Wilson J on 11 October 2019.  It is submitted on behalf of the husband that the application is urgent, that the husband finds himself in a parlous situation, that he is unemployed, that he does not have the ability to meet rental payments or to otherwise provide financial support for the parties’ children.  It is on that basis that a review of the decision of the registrar is sought so as to expedite the hearing of his application today. 

12. The application is opposed by the wife.  She relies upon her Response to Application in a Case filed 11 November 2019, and an affidavit filed the same day.  At paragraph 2 of her response she seeks orders that the husband’s Application in a Case filed 23 October 2019 be dismissed.  The position put on behalf of the wife is that the husband’s application is misconceived.  Counsel for the wife submitted on 2 October 2019 that the registrar informed the parties that the priority was the listing of the husband’s stay application and that the other applications would fall behind the determination of that issue. 

13. The orders made by the registrar as to the listing of the husband’s application seemingly reflect the wife’s understanding of the registrar’s indication to the parties as to the listing of matters. 

14. The application to review the registrar’s decision is, of course, a hearing de novo, and ultimately it will be a matter for me to determine when and where the application made on behalf of the husband is to be heard and determined. During the course of submissions I questioned the solicitor for the husband as to the source of power upon which he relied for the application for payment to the husband by the wife. It was submitted on behalf of the husband that the application is framed as a costs application pursuant to s 117 of the Act.

15. Notwithstanding submissions made as to the urgency of the application, given the husband’s alleged difficult financial position, it is not put that his application is made relying on the maintenance provisions of the Act. Given that there are current final orders that dispose of the financial disputes between the parties, and that those orders have been in place since 2013, that is a sensible concession.

16. The reality is that the husband’s application seeking payment is listed in a Judicial Duty List where there is capacity for the Court to deal with that application.  There is a timetable set for the orderly filing of a Response to Application in a Case and a reply.  The time for filing of the reply is not due until 25 November 2019.  Given the history of the matter and the nature of the issues in dispute, it is important that each party have the opportunity to present to the Court the evidence upon which they rely in support of their respective positions.  To accede to the husband’s application would deprive the parties of filing material upon which they seek to rely in accordance with the timetable.

17. These proceedings have occupied significant Court time and resources over the past three years.  The parties have had a trial this year, there has been a decision made, an appeal has been filed, directions have been made in relation to that appeal by an appeals registrar, and the parties have had hearings before a registrar and a judge in relation to a stay application.  The husband’s application now before the Court seeking to review the decision of the registrar as to a listing date, so as to expedite the hearing of his application for costs by a matter of three and a half weeks, in my view is an abuse of process. 

18. It is most unfortunate that the application has been brought.  Given the nature of the application, which is essentially an application for a prospective costs order, I do not accept the submissions made as to the urgency of the husband having funds.  A costs order is not an order which would enable him to meet his costs of living; it is an application made to meet legal costs associated with these proceedings.  To that extent, the submissions made on behalf of the husband are misconceived. 

19. In all of the circumstances I am satisfied that the appropriate course is to dismiss the application of the husband filed 23 October 2019.  The matter will otherwise stand in the Judicial Duty List on its listed date, being 10 December 2019. 

20. I note that the orders previously made by the registrar made provision for the filing of a reply. That reply is due on 25 November 2019.  The husband will have the opportunity to file documents in accordance with those orders, should he choose to do so. 

    RECORDED : NOT TRANSCRIBED

21. The wife has made an application for the costs thrown away in respect of the hearing this day.  It is submitted on her behalf that the applicant has been wholly unsuccessful in his application to review the registrar’s decision listing his Application in a Case filed 16 September 2019 to the Judicial Duty List on 10 December 2019.  On that basis the wife seeks an order that costs be paid by the husband in respect of this hearing. 

22. Further, she seeks that those costs be paid on a solicitor-client basis in circumstances where I have found that the application of the husband was misconceived, and where I have observed that that application was an abuse of process. 

23. The wife’s application is opposed by the husband, who seeks that the question of costs be reserved.   

24. The general rule in relation to costs is that each party shall bear their own costs. Section 117(2) of the Act provides that:-

    If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

25. Section 117(2A) sets out the matters that the Court should have regard to in considering whether to make an order for costs. It is, in particular, subparagraph (e) of that section that is relied upon by the wife, which provides:-

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

26. That is what has arisen here today, as I have observed, The husband’s application was to review the registrar’s orders so as to accelerate the determination of his Application in a Case, which is already listed for hearing on 10 December 2019.  He sought to bring that application forward by some three-and-a-half weeks to be dealt with today.  In my view there was no sensible basis for such application to be made and I refer to my reasons for judgment earlier delivered in relation to those matters. 

27. Having regard to the history of the litigation and having regard to the manner in which the application has been brought before the Court, and in circumstances where the applicant has been wholly unsuccessful, I am satisfied that an order for costs is appropriate. 

28. Whilst submissions were made that the costs should be payable on a solicitor-client basis, I am not satisfied in the circumstances that there is any basis for an order for costs on a solicitor-client basis. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 November 2019.

Associate: 

Date:  13 November 2019