Ongal and Materns

[2008] FamCA 527

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS [2008] FamCA 527

FAMILY LAW – COSTS – competing applications for costs – husband wholly unsuccessful in his applications on the Rice v Asplund test – order for husband to pay costs.

Family Law Act 1975 (Cth) s 117

APPLICANT: MR ONGAL

RESPONDENT: MS MATERNS

INDEPENDENT CHILDREN’S LAWYER: MR T.S. ADEY

FILE NUMBER: ADC 2107 of 2007

DATE DELIVERED: 20 February 2008

PLACE DELIVERED: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 20 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr M.A. Boehm

SOLICITOR FOR THE RESPONDENT: Denise M. Rieniets and Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr J.M. Bowler

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Adey Lawyers

Orders

1. That the father pay the costs of the wife arising from the dismissal of his Application before the Court filed on 20 April 2007 and his Amended Application filed on 29 June 2007 in the amount of NINE THOUSAND ONE HUNDRED AND SEVENTY DOLLARS [$9,170], such costs to be paid to the trust account of the mother’s solicitors within thirty [30] days of the date hereof.

2. That the father pay the costs of the Independent Children's Lawyer in the amount of ONE THOUSAND AND FIFTY SIX DOLLARS [$1,056], such costs to be paid to the trust account of the Legal Services Commission of South Australia within thirty [30] days of the date hereof.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2107  of 2007

MR ONGAL

Applicant

And

MS MATERNS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me for determination competing applications for costs between the parties arising out of the husband's failed applications.  I dismissed those same applications on the Rice v Asplund test by self-executing Order made on 22 November 2007.

2. Consequent upon the failure of the husband's applications in that respect the various applications for costs were adjourned for my consideration to today.  The parties have filed further documents in support of those applications.

3. The father seeks an order for costs, acknowledging now that he is in no position to recover his own costs in terms of his own time devoted to these proceedings, but rather the recovery of the costs that he incurred with Kelly & Co, the details of those costs being annexed in annexure “L” to the husband's affidavit filed on 13 February 2008.  The total costs that he seeks, as I understand his application, is in the amount of $8,925.24.

4. The mother also makes an application for costs, the total that she seeks being $9,170, which costs are detailed in two affidavits filed by her solicitor Ms Rieniets on 11 December 2007 and today.

5. In determining any application for costs I must have regard to the matters set forth in Section 117 of the Act and in particular, the matters raised pursuant to sub-section (2A).

6. The first matter I must consider is as to the financial circumstances of each of the parties to the proceedings.  It is not necessary for me to consider the details as to the wife's financial circumstances, given that my ultimate determination, which will be revealed upon completion of my analysis of the various sub-sections, is that the father pay the wife's costs.  In those circumstances the critical issue is as to whether or not the father has the capacity to meet any order for costs in the amount of $9,170 or any other figure, and the application for costs by the Independent Children's Lawyer in the sum of $1,056.

7. I am satisfied that he does have that capacity for a number of reasons, but the principal ones are:

   (1)In the Financial Statement filed by him on 13 February 2008 at paragraph 37, he discloses that he has savings and funds generally in the bank of $35,140.  To his credit, the father pointed out that there was in fact a typographical error in that paragraph and that the total funds are indeed $45,140.  It is clear that he could satisfy any order for costs from those funds alone.

   (2)He discloses in paragraph 59 of his Financial Statement that he has sold or otherwise realised a number of other assets.  One of those was the sale of F Company shares to his parents for 75,000 UK pounds, the father again acknowledging that the figure in the Form 13 is a typographical error.  More detail as to the consequences of that sale of shares is contained in annexure “M” to the father's affidavit filed on 13 February 2008.  Greater detail and understanding of the record of transactions in that annexure was achieved in discussion with the father today.  In summary, what he was putting to the Court was:-

   (a)that when in need of funds he sold his F Company shares to his parents, or to his mother, at the best price that he could achieve at the time and at a price which all indicators at that time suggested was an appropriate figure.  However, he acknowledged that by doing so he had further sold to his mother various rights attached to those shares, with a consequence of various additional payments, bonuses or the like falling due in the future, or additional payments that were due for additional premiums that attach to those shares.  That may not be an accurate summary in exact terminology of what happened, but the consequence is to the effect that, as a result of subsequent approval of the takeover of the parent company, the father's mother experienced a windfall of some significant proportions.  If those shares had been retained by the father, if he had been able to do so at the time, they would have been worth, in short, a good deal more to him than 75,000 UK pounds.

   (b)the father put to the court that neither he nor his mother considered that she owed him that money or that she had any moral obligation to give that money back to him.  A summary of his position is to the effect that she took a commercial risk in purchasing those shares by him at a time when it was not known whether the takeover would be approved or not and, as a consequence, she is entitled to the benefits of that risk that she took, as indeed there may have been some poor financial consequences of the risk that she took.

   (c)However, the father's parents have historically been very supportive of him in these proceedings, as is again exhibited by annexure “M” to his affidavit of 13 February 2008.  It records a long history of them providing money to him when he needed it.  I am satisfied that the father's mother's generosity and support of her son will not evaporate if he encounters a further time of need, and one of those times is when he is facing this application for costs by both the mother and the Independent Children's Lawyer.

   (3)In part O of the father’s Financial Statement he indicates that in the first six months of this financial year he retained earnings of $33,000 gross.  There are yet to be taxation and other costs deducted from that figure in order to determine the net.  He indicates further that for the whole of the 2008‑2009 financial year his income is likely to be in the order of $500 per week net.  He points out that much of that will be expended by him spending time with his children.

8. In all of the circumstances, and particularly given the amount of savings and the money which could be said in some sense to be being held by his mother in trust for him - suggests that he has the financial capacity to pay any order for costs in the amounts being sought.

9. I now need to consider subsection (b).  It is not a subsection which is relevant to this matter; nor in my view is subsection (c).  Issues as to conduct raised within the context of that subsection are not matters of conduct which arise in my consideration of whether or not costs ought to flow from my decision that on the Rice v Asplund test the husband's renewed applications before this Court of April and June 2007 ought to be dismissed.  Nor in my view is subsection (d) relevant.

10. However, subsection (e) is of particular relevance, as it requires me to consider whether any party to the proceedings has been wholly unsuccessful in the proceedings.  That is clearly the case here.  The father was wholly unsuccessful in his applications before the Court filed on those dates in April and June 2007.  He failed absolutely in his applications before the Court.  They were dismissed absolutely on application of the Rice v Asplund test. 

11. Subsections (f) and (g), in my view, are not relevant to my determination.

I certify that the preceding eleven (11) paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Burr

Associate:

Date: 20 February 2008