Mirshanthan & Pavagi
[2022] FedCFamC1F 987
Federal Circuit and Family Court of Australia
(DIVISION 1)
Mirshanthan & Pavagi [2022] FedCFamC1F 987
File number(s): MLC 1490 of 2017 Judgment of: JOHNS J Date of judgment: 24 November 2022 Catchwords: FAMILY LAW – COSTS – application for costs thrown away – where the applicant husband has failed to comply with direction to produce a minute of orders sought – where the respondent wife is not informed of the case she must meet by the third day of hearing – where the husband’s conduct has necessitated an adjournment of the proceedings – where the husband should pay the wife’s costs thrown away for the third day of hearing – where the wife’s costs should be in accordance with the Schedule – order for costs in the quantum of $1,642 Legislation: Family Law Act 1975 (Cth) ss 102NA, 117 Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 24 November 2022 Place: Melbourne Counsel for the Applicant: Mr Allen Solicitor for the Applicant: Danielle Webb Lawyer Counsel for the Respondent: Ms Jardine Solicitor for the Respondent: Clements Family Law ORDERS
MLC 1490 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MIRSHANTHAN
Applicant
AND: MS PAVAGI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JOHNS J
DATE OF ORDER:
24 NOVEMBER 2022
THE COURT ORDERS:
1.That all applications for final orders be adjourned for hearing before Justice Johns on 17 May 2023 at 10.00am as a three-day matter and that the evidence in chief of all witnesses be given by affidavit.
2.That by 4.00pm on 27 March 2023 the applicant file and serve upon all other parties:
(a)An amended application setting out with precision the orders to be sought; and
(b)Updating affidavits of evidence in chief limited to the progress of the Court proceedings in Country B regarding the ownership of properties in Country B by the parties (whether in their name or on their behalf or by entities controlled by them) (“the Country B proceedings”).
3.That by 4.00pm on 17 April 2023 the respondent file and serve upon all other parties:
(a)An amended response setting out with precision what orders are being sought; and
(b)Updating affidavits of evidence in chief limited to the progress of the Country B proceedings.
4.That if there is no agreement as to the value of the property the subject of the proceedings by 1 December 2022 the parties do all acts and things necessary to appoint and instruct such single expert as may be agreed by 8 December 2022 (“the date”) and in default of agreement, within seven days of the date the applicant serve on the respondent a list of three suitably qualified valuers and within 14 days of receipt of the said list, the respondent nominate a single expert from that list, such single expert to value the properties held by the husband and the wife (whether personally, by entities controlled by them, or third parties on their behalf) in Country B.
5.That the cost of any valuation is to be paid initially by the husband with the ultimate responsibility for the cost of the valuation reserved for further order of the Court.
6.That no party file any further material other than as provided by these order without leave of the Court.
7.That should any party fail to comply with these orders or the ensuing amended directions of the docketed registrar, upon request to my Associate the Court will relist the case requiring the non-complying party to justify why it should not proceed on an undefended basis.
8.That by no later than 28 April 2023 the parties do all such acts as may be required to attend a private mediation in an endeavour to resolve the outstanding property dispute.
9.That the husband pay the wife’s costs in the amount of $1642.
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, except in very limited circumstances, to publish 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 the pseudonym Mirshanthan & Pavagi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
The matter of Mirshanthan & Pavagi is listed before the Court for final hearing in relation to both property and parenting matters. Today is the third day of hearing. The parenting issues were resolved by consent at the conclusion of the first day of hearing.
The matter was stood down for much of yesterday, the second listed day of hearing, to enable the parties to have negotiations in relation to the property dispute. The property the subject of dispute and the adjustments sought, are modest; the pool of assets is valued at less than a million dollars.
The pool comprises of a property at C Street, which has an agreed value of $780,000 and is subject to a first registered mortgage liability of approximately $414,000. Each of the parties owns a motor vehicle, those vehicles having agreed values. It is also common ground between the parties that there ought be an add-back of sums withdrawn from the parties’ account by the husband and applied by him to payment of his legal and other expenses.
At issue between the parties is the nature of their interests in property in Country B and the value of those properties. There are proceedings on foot in Country B in relation to those matters. In addition to the real property, the parties each hold superannuation interests, which, again, have agreed values.
It became clear at the conclusion of the second day of hearing that the matter was unlikely to resolve. It was also clear that the position of the parties and, particularly, the position of the applicant husband, had not been articulated with precision, albeit that it was the second day of trial. As a result of that position at the conclusion of the second day of hearing I directed that each of the parties file and serve a minute of proposed order with my Associate. In my view, such direction was necessary so that the respondent wife and the Court would know the case she was being asked to meet in relation to the adjustment of property sought.
Notwithstanding that direction, today the applicant husband failed to produce a minute of proposed order. The wife has complied with that direction. A minute of proposed order and a balance sheet was filed and served on her behalf.
As a result of the husband’s failure to comply with that direction, the matter is not in a position to proceed today. Of necessity, the matter will be adjourned and listed for hearing in May 2023.
As a result of the adjournment of the hearing the wife seeks that her costs of this day be met by the husband. The submission made on behalf of the wife is that the third day of hearing costs have been wasted; that as a result of the husband’s failure to articulate his case and to comply with my directions, the matter has been unable to proceed.
Counsel for the husband quite properly concedes that there has not been compliance with the directions made.
The general rule with respect to costs in this Court is that each party should bear their own costs. Section 117(2) of the Family Law Act 1975 (Cth) (“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.
Section 117(2)(a) of the Act sets out the matters that the Court should have regard to in considering whether to make an order for costs.
The circumstances to be considered are, firstly, the financial circumstances of each of the parties to the proceedings. As I have already observed, the parties hold real property both in Australia and in Country B. In addition the husband discloses in his Financial Statement that he is employed and earns an income of approximately $117,000 per annum. Part B of his Financial Statement discloses that he has a surplus of weekly income over expenditure. The wife, in contrast, earns an income of approximately $33,000 per annum from her part-time employment as an allied health worker. Otherwise, she is reliant upon government benefits to assist in meeting her weekly expenses.
The second matter to be considered is whether either of the parties is in receipt of Legal Aid. Both parties’ lawyers are funded under the Commonwealth Family Violence and Cross-Examination of Parties Scheme, which provides representation as a result of orders made pursuant to section 102NA(2) of the Act.
The third matter to be considered is the conduct of the parties to the proceedings. As I have already observed, the adjournment has been necessitated as a result of the failure of the husband to produce a minute of order setting out with precision the claim he makes in relation to the property proceedings.
There is an intersection between the third and fourth matter which relates to whether the proceedings were necessitated by the failure of a party to the proceeding to comply with previous orders of the Court. As I have observed, the direction made by me yesterday was not complied with by the husband. Those issues are compounded by the failure of the parties to comply with orders previously made that the property the subject of the dispute be valued. One of the live issues in this case is the value of the parties’ interests in property in Country B.
The next matter to be considered is whether any party to the proceedings has been wholly unsuccessful in the proceedings. That consideration is not relevant in the determination of this costs application.
The next item to be considered is whether either party to the proceedings has made an offer in writing. Again, that is not a matter relevant to the determination of this application.
As I have noted, I am satisfied that this adjournment has been necessitated by the failure of the husband to comply with my directions that he file and serve a minute of proposed order. As the matter stands, on the third day of hearing, the wife still has no knowledge as to the relief sought by the husband, who is the applicant in the proceedings.
As a result, I have made orders adjourning the matter and have made directions regarding the filing of material to ensure that the matter will proceed on its listed date. I also made orders requiring the parties to attend a private mediation, as in my view, this is a matter that ought be easily resolved once the work is done.
Having regard to all the matters to which I have referred I am satisfied that it is appropriate that an order be made for costs in favour of the wife.
The wife seeks costs fixed in the sum of $1,642.00, being the costs of her Counsel appearing this day. That is the amount allowed under the Schedule of Costs provided in the Rules of Court. I am satisfied that that is an appropriate amount in the circumstances of the case.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 24 November 2022
0
0
0