Moretti & Moretti
[2023] FedCFamC1F 639
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moretti & Moretti [2023] FedCFamC1F 639
File number(s): MLC 3989 of 2020 Judgment of: STRUM J Date of judgment: 1 August 2023 Catchwords: FAMILY LAW – COSTS – Where the applicant wife and first intervenor agreed to reserve costs of the day – Where the respondent husband pressed an application for costs – Where the wife had some days earlier sought an adjournment due to recently changing lawyers – Where the first intervenor consented to the adjournment – Where the husband did not consent to the adjournment – Where the matter was not reached – Where certain orders were made by consent – Where the husband’s costs of the day were not wasted – Where the application for costs was unreasonable in the circumstances – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Collins & Collins (1985) FLC 91-603; [1985] FamCA 15 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 28 July 2023 Place: Melbourne Solicitor-advocate for the Applicant: Mr Schetzer Solicitor for the Applicant: Schetzer Papaleo Family Lawyers Counsel for the Respondent: Ms Tulloch Solicitor for the Respondent: Fair Family Law Counsel for the First Intervenor: Mr Tatarka Solicitor for the First Intervenor: Hunt & Hunt Lawyers The Second Intervenor: The Second Intervenor did not appear ORDERS
MLC 3989 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MORETTI
Applicant
AND: MR MORETTI
Respondent
B ORGANISATION
First Intervenor
MR O
Second Intervenor
ORDER MADE BY:
STRUM J
DATE OF ORDER:
28 JULY 2023
THE COURT ORDERS THAT:
1.The costs application of the respondent made this day be 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).
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 Moretti & Moretti has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
On Friday, 28 July 2023, I made orders reserving the costs of that day of the applicant wife and the first intervenor and dismissing the respondent husband’s application for costs. Due to the lateness of the hour that day, I reserved my reasons.
These are my reasons.
The wife, in recent weeks, changed lawyers. I was told from the Bar table, and none of the lawyers disagreed, that at the beginning of that week, she sought an adjournment of the hearing; the first intervenor agreed to this request but the husband did not.
At the beginning of the day, I told the lawyers for the parties that I proposed to deal first with another matter in my list which, due to its circumstances, would have priority. I further told them that, accordingly, it was unlikely I would be able to deal with their matter that day.
Whilst the solicitor for the wife flagged an adjournment application, there were matters which, in my opinion, were (or should have been) capable of resolution, with some sensible discussions. Accordingly, I stood the matter down.
Late in the day, some orders were made by consent. Those orders provided, inter alia, for each of the husband and the wife to receive payments by way of partial property settlement.
Having made those orders, the solicitor for the wife and counsel for the first intervenor sensibly sought the reservation of their clients’ costs. Counsel for the husband made an application for the payment of his costs by the wife. I suggested that I would reserve his costs too, at no prejudice to him. Nevertheless, his counsel pressed her application. At no stage did she seek the reservation of his costs if I was not minded to make an order for costs. The husband’s costs application proceeded on this basis.
Section 117(1) of the Family Law Act 1975 (Cth) (“Act”) relevantly provides that, subject to, inter alia, subsection (2), each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) relevantly provides that if, in proceedings under the Act, the Court is of the opinion that there are circumstances that justify it in so doing, the Court may, subject to, inter alia, subsection (2A), make such order as to costs as the Court considers just.
Section 117(2A) provides that in considering what order, if any, should be made under subsection (2), the Court shall have regard to the matters set out in paragraphs (a) – (g) thereof.
In Collins & Collins (1985) FLC 91-603 at 79,877, the Full Court said that, although the discretion under s 117(2) “is to be exercised having regard to the primary rule that each party should bear his or her own costs”, it is a “broad” discretion, to be exercised having regard to the factors set out in subsection (2A), which factors are not to be read in restrictive way, “the discretion remaining a broad one”.
Counsel for the husband did not address me in relation to the matters in s 117(2A) by specific reference to the individual paragraphs thereof. Nevertheless, I understood from her submissions that that she relied upon paragraph (c), namely, the conduct of the parties (in this case, the wife) in relation to the proceedings, by her application for an adjournment, albeit in circumstances where she was not ready to proceed, having only recently changed solicitors.
I considered the other paragraphs of s 117(2A) and either they were inapplicable or I had no evidence in relation thereto (or, at least, no evidence to which I was referred).
In relation to the conduct of the wife, as I have noted above, she changed lawyers in recent weeks and, in those circumstances, at the beginning of the week, she sought an adjournment, to which the first intervenor agreed but the husband did not. Even if she had been unsuccessful in her adjournment application, the matter would have been highly unlikely to proceed on the day on which it was listed, for the reasons I have explained above. Further, whilst the orders I made by consent did not dispose of all of the matters the subject of the competing interlocutory applications of the husband and the wife, the balance of which will be referred to a Senior Judicial Registrar for determination on an available date, the orders did provide for each of them and, relevantly for present purposes, in particular, the husband to receive a payment by way of partial property settlement. Accordingly, the husband’s costs of the day were not wasted.
In the circumstances, the husband’s application for costs was unreasonable; it should not have been brought and it should not have been pressed. He should have reasonably agreed to a reservation thereof, as did the other parties. However, in circumstances where he did not seek a reservation of his costs in the event I was not minded to make an order for costs that day, I dismissed the application.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 1 August 2023
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