Oltman and Harper

[2009] FamCA 822

FAMILY COURT OF AUSTRALIA

OLTMAN & HARPER [2009] FamCA 822

FAMILY LAW – COSTS – Judgment of validity of marriage delivered – Husband wholly unsuccessful – Financial circumstances of parties considered – Costs fixed in a discount amount from that sought by counsel – Wife's solicitors appeared pro bono

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Oltman

RESPONDENT: Ms Harper

FILE NUMBER: MLC 9619 of 2008

DATE DELIVERED: 2 September 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 2 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR KAHN

SOLICITOR FOR THE APPLICANT: STARNET LEGAL PTY LTD

COUNSEL FOR THE RESPONDENT: MS LANGHAM

SOLICITOR FOR THE RESPONDENT: WOMEN'S LEGAL SERVICE VICTORIA

Orders

IT IS ORDERED:

1. THAT the husband pay or cause to be paid to the wife costs of and incidental to the hearing of 24 July 2009, assessed in the sum of $5,000.

2. THAT the payment date of such costs be three (3) months from the date of this Order or the settlement or conclusion of the s79 property proceedings if they occur prior to that date.

3. THAT interest be paid by the husband on the quantum of costs then outstanding from a date six (6) months from this Order and quarterly in arrears at a rate prescribed from time to time pursuant to the Family Law Rules.

4. THAT within fourteen (14) days the solicitors for each of the husband and wife prepare in affidavit form, to be sworn or affirmed by each of them, a statement of their current assets, financial resources and liabilities and specifically the husband is to disclose the ownership of any taxi vehicle or licence, or interest therein or any past ownership of any such taxi vehicle or licence.

5. THAT otherwise the further hearing of all property and financial matters in this file be redirected to the Federal Magistrates Court and thereafter to resume a financial conciliation conference at an appointed date and time.

6. THAT the extempore reasons for judgment be transcribed (as to cost issues), be placed upon the Court file and be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Oltman & Harper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9619 of 2008

MR OLTMAN

Applicant

And

MS HARPER

Respondent

REASONS FOR JUDGMENT

1. In the matter of Oltman and Harper I have this day delivered reasons for judgment and declared the marriage entered into between the husband and wife in March 2000 was a legally valid marriage.  Arising out of the reasons for judgment is the wife’s oral application now before the court for the husband to pay or contribute to her costs of and incidental to the proceeding. 

2. In my order earlier delivered this day, I reserved those questions of costs for argument and I have discussed with solicitors that the matter should not be further reserved at greater cost to the parties but should be determined today.

3. Under section 117 of the Family Law Act1975 (Cth), each party to proceedings before the court should bear his or her own costs.

4. By subsection (2) thereof the court is entitled to make such an order for costs as it considers just, if it is of the opinion that there are circumstances that so justify a departure from the primary provision of subsection (1) thereof.  The matters that are to be taken into account on any costs order are identified in subparagraph (2A) and the relevant factors that I have had solicitors address me upon, and which are relevant to this present case, are subparagraphs (a), (c), (e) and (f) thereof. 

5. As I understand the facts of this case, neither party is legally aided.  The wife is supported by the Women’s Legal Service Victoria, which is a pro bono organisation, and clients are charged counsel’s fees and disbursements but no solicitor’s costs.  The husband has private legal practitioners but I accept that which Mr Khan has told me from the bar table, that is, his client has received considerably discounted legal fees for services rendered. 

6. The property aspect of this case is before the Federal Magistrates Court.  I therefore do not have the benefit of substantial financial disclosure.  I was told during the one day trial that the matter was adjourned to this court to determine the issue of the validity of the marriage at a time when a financial conciliation conference was being conducted. 

7. I find it amazing, if that be the case, on the basis of disclosed financial knowledge that this matter could then have been given a settlement discussion conference.  On any overview of this case there are minimal assets.  The dispute seems to largely revolve around whether the husband now owns a taxi or previously owned other taxis which he has sold or otherwise disposed of.  They are simple matters of fact to be ascertained. 

8. Mr Khan, on behalf of the husband, disclosed his instructions to be that the husband currently owns a taxi but his income therefrom is said to be very considerably less than the $1,200 asserted by or on behalf of the wife. 

9. There is a stark reality to this case that both solicitors need to urgently ascertain the pool of assets, the past disposal of property, if any, and the income of both parties.  The financial circumstances are relevant to the costs issue before me, but more particularly to the wider issues before the court. 

10. I primarily only concern myself with the financial circumstances in the context of the costs application, but I will make certain orders, which I have foreshadowed to solicitors, and which are not objected to, to hopefully better prepare and have ready for discussion the concurrent property/financial matters before the court.

11. The wife’s income is from Centrelink benefits.  She has seven children residing with her in her government-provided home, being four children of the marriage and three children of her prior marriage.  The husband pays no child support or otherwise financially assists her or the children, though I do know from evidence in the case that he has a family obligation to repatriate moneys to Africa, for family financial commitments and assistance. 

12. As to the conduct of parties to the proceedings I am prepared to accept that the husband did have a legal right to challenge the marriage based on his memory and recollection of the events, and what he intended to enter into in terms of the ceremony of marriage. 

13. I will not repeat my very clear findings in the reasons for judgment and the simple fact is that I have rejected the submissions of the husband and have found the marriage of March 2000 to be valid. In that regard, therefore, the husband has been wholly unsuccessful within subparagraph (e) of s.117.

14. Ms Langham did address me on subparagraph (f) to the extent that a letter was written advising the husband to withdraw proceedings or otherwise resolve this issue before this court at an earlier opportunity and without incurring costs.  That letter is not in evidence before me.  It was not tendered, and in any event it does not form the basis of an offer in writing in the context of a written settlement proposal or like offer. 

15. I have no regard to the submission under subparagraph (f) in the determination of costs that are just in the circumstances of this case. 

16. As an overview, the wife has been successful, the marriage is declared valid, she has urgent and pressing financial circumstances, and that which she and her solicitors and legal counsel have done on her behalf has been appropriate and in any event responsive to the husband’s transfer of proceedings to this court on this single legal issue. 

17. In the exercise of my discretion, there are circumstances that are appropriate to facilitate a costs order in favour of the wife and I make the formal finding that such an order is just. 

18. As to the quantum of costs, the wife has had the very considerable assistance of the Women’s Legal Service.  That is a very significant provision of costs and advice to her on a pro bono basis.

19. Counsel for the husband, as I understand the submission, has charged fees of two days’ hearing at $1,650, a total of $3,300, together with preparation of seven hours at $330 an hour, that is, $2,310, and additionally two days of fees for the preparation of written submissions;  that is an additional sum of $3,300.  As such, those fees would total $8,910 in the context of a one-day hearing on a specific legal issue.  I carefully make no criticism of the fees charged by counsel. 

20. I observe in the updated Schedule 3 itemised scale of costs annexed to the Rules that junior counsel, depending upon their experience and the complexity of the case, may charge fees which range between $677 and $1,565 for a hearing of up to one day.  Otherwise, chamber work and conferences can be charged in a scale between $220 and $315.

21. Clearly, I proceed on the basis that the top of the scale is reserved for the more complex matters and for the more senior of junior counsel.  I emphasise that counsel’s fees are normally set by negotiation with solicitors and client, and I have no criticism of the fees charged, but in the context of this case and the single issue to be decided, I will not allow those costs in their quantum as claimed. 

22. That does not relieve the wife of the obligation to pay her costs, but I will make a costs order whereby the husband will contribute a sum to those costs.  What is required is that the contribution be just and reasonable.  The alternative is simply to leave all of the costs issues for taxation, and that means the preparation of a formal bill of costs, though that is a more simple process in this case because it is limited to counsel’s fees and other disbursements. 

23. What I propose to do is to fix costs of $5,000.  I will allow the husband a period to pay of three months or the settlement or resolution of the property proceedings under s 79 now before the Federal Magistrates Court.  I will not attach a default interest payment to those orders for a period of six months from this day, and thereafter interest is to be charged at the rate prescribed from time to time by the Family Law Rules, quarterly in arrears. 

24. I intend to give the husband the reasonable opportunity to make full and proper financial disclosure, and to discuss and hopefully resolve any property claim before the court.  I would be of the view that $5,000 is a proper and reasonable sum but significantly it is a sum that will not be readily available to the husband, as I best understand his evidence, and it is likely to impose a measured level of financial pressure upon him. 

25. That I must balance, and have so balanced, with the wife’s success in the proceedings and her necessity to have some moneys available towards payment of legal fees, lest any property settlement be wholly taken up in the payment of those fees.

26. As I have said, I will pronounce limited property procedure orders and this matter can return to the Federal Magistrates Court to be concluded.  I will have these brief extempore reasons on costs and other issues transcribed placed upon the court file and made available to the parties. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: