P and B-P (No.3) - [2007] FMCAfam 467

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & B-P (No.3)

[2007] FMCAfam 467

FAMILY LAW – Contested divorce application – costs application.

Family Law Act 1975, ss.55(2), 55A

Applicant:

Respondent:

B-P

File Number:

SYM2598 of 2006

Judgment of:

Altobelli FM

Hearing date:

30 April 2007

Date of Last Submission:

18 June 2007

Delivered at:

Sydney

Delivered on:

13 July 2007

REPRESENTATION

Counsel for the Applicant:

Ms Messner

Solicitors for the Applicant:

Doolan Wagner & Callaghan

Counsel for the Respondent:

Self-represented

ORDERS

That the Wife pay the Husband’s costs of these proceedings in the amount of $4,320.00, such costs to be paid no later than 60 days from the making of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM2598 of 2006

R J P

Applicant

And

K A B-P

Respondent

REASONS FOR JUDGMENT

These reasons relate to the application for costs that was made by the applicant in these proceedings following the orders that I made on

23 April 2007. I refer to and incorporate into these reasons the reasons for judgment I gave in the substantive matter, including the supplementary reasons for judgment published 30 April 2007. The substantive application was, in effect, an application by the husband seeking an order under s.55A of the Family Law Act which would enable the decree nisi of dissolution of marriage, made by Halligan JR on 29 February 2000, to become absolute.
The history of the proceedings was set out at length in the reasons for the substantive judgment.
The costs application proceeded on the basis of the preparation and filing of written submissions. The submissions were filed on behalf of the husband, prepared by his solicitor Mr Moylan, dated 7 May 2007. The written submissions provided by the wife appear to have been provided by her in person and are dated 18 June 2007.
It is not necessary to incorporate anything other than a summary of the submissions made by each party. On behalf of the husband, his submissions are:
a)There is nothing about the financial circumstances of the wife that would contra-indicate the making of a costs order against her. Indeed, I observe, there was much material before the Court relating to the financial circumstances of each of the husband and the wife and I agree that if, in the exercise of my discretion, I decide it is appropriate to make an order for costs, then there is no reason not to make such order based on the financial circumstances of the wife.
b)The manner in which the wife conducted these proceedings contributed to the length of time for the matter to be determined including a number of adjournments. In particular, the husband submits, the wife through her then counsel insisted on cross-examining the husband, but then declined to do so at the final hearing on 1 March 2007. This submission may be dealt with shortly. I am satisfied that the delays that took place before this matter could finally be heard were attributable to the workload of this Court, and the comparatively low priority that this matter was given in my docket, and in the docket of Federal Magistrate Housego, having regard to other urgent matters that needed to be attended to. I do not regard the conduct of the wife as having contributed to any unnecessary delay or as having precipitated unnecessary appearances before the Court.
c)The husband submits that insofar as the wife may assert that the proceedings were necessitated by a failure on his part to comply with orders in relation to the payment of maintenance, that such conduct is not conduct falling within matters to be reasonably considered in the context of a costs application. As will be seen below, and as is apparent from my substantive judgment, the husband was in breach of various orders of the Court, but I am not satisfied that it was appropriate for the wife to object to the decree nisi becoming absolute because of the alleged breach. If the wife had concerns about enforcing orders made under the Family Law Act, her appropriate remedy was to use the enforcement mechanisms available under that legislation, rather than to exert leverage by objecting to a decree nisi becoming absolute. I’m not prepared to find that the proceedings were necessitated by the husband’s breach. Rather, the proceedings were opportunistically used by the wife as a de facto enforcement mechanism which was, in my opinion, completely inappropriate.
d)The husband submits the wife has been wholly unsuccessful in proceedings. Specifically, insofar as the wife’s case depended primarily on a defence based on s.55(2) of the Family Law Act, it was a defence that was completely misconceived. Moreover, insofar as the wife asserted that social security payments made for the benefit of the child were not to be considered in determining whether proper arrangements had been made in all the circumstances for the child, this was again an argument that was wholly unsuccessful. In my opinion it is hard to resist the conclusion that the wife was wholly unsuccessful having regard to the way in which she conducted the case.
There are other matters raised in the submissions by the husband that I do not need to traverse.
The wife’s written submissions emphasise that her opposition to the divorce decree becoming absolute arose out of the husband’s failure to pay maintenance for their child, and then his non-compliance with the orders made by consent on 29 September 2006. Paragraph 10 of the wife’s submissions sets out, in my opinion, the fundamental basis of the wife’s objection to the decree nisi becoming absolute. I reproduce paragraph 10 in full:
In circumstances where the Husband still had not honoured his liability for maintenance, I submit that I was entitled, and in fact had an obligation to my son Daniel, to use whatever means were at my disposal, to attempt to ensure that at least some payment was made in relation to maintenance before the Divorce was made final. At no time was it my intention to prevent the Divorce – only to delay it until the husband had made some financial contribution towards Daniel’s upbringing.
In simple terms, in the wife’s written submissions about costs, she concedes that her opposition to the divorce becoming absolute was to enforce a maintenance liability. It is apparent from the wife’s own submissions that, to use her own words, she felt entitled “to use whatever means were at my disposal” to seek payment of the maintenance. Rather than using the significant “means at her disposal” contained in the enforcement provisions of the Family Law Act she chose to adopt what I regard as the improper method of opposing the making of a decree absolute of divorce, in circumstances where I have found, for reasons set out in my substantive judgment, the proper arrangement had been made in relation to Daniel since 2001 (see paragraph 26 of the substantive judgment).
As far as I am able to discern from the wife’s written submissions, she makes concessions that confirm in my mind the improper reliance on the opposition to the divorce decree.
The wife’s written submissions in relation to costs contain a number of other matters that are either irrelevant to the costs application, or matters where I made findings in the substantive proceedings.
I think the real issue in this matter is the qualification of the costs that should be paid by the wife to the husband. The husband quantifies his claim at $12,515.00.
As I explained at paragraphs 8-9 of my substantive judgment, these proceedings had a rather inauspicious beginning with the husband filing a fresh application for divorce in this court on 8 June 2006, proceedings which were completely misconceived. It was not until

6 February 2007 that it became clear that the application for divorce was not being pursued and that the matter before me was purely in relation to the s.55A declaration. It is that confusion about the nature of the proceedings that, in my opinion, contributed to a number of unnecessary mentions and appearances before the Court. There were a number of mentions when the matter was not reached and I do not regard the cost of these attempts to deal with the matter as being costs that should be sheeted home to the wife, in the circumstances of this case. I think it is appropriate, however, to order the costs of the hearing on 1 March 2007 that the husband has quantified at $4,320.00 comprising preparation $3,195.00, half day hearing fee $750.00 plus advocacy loading $375.00. That is the order that I am prepared to make in the circumstances of this case. I do record that even though I was very critical of the wife for using these proceedings for a purpose for which they were not intended, I have nonetheless taken into account in a general sense in quantifying the cost order the husband’s non-compliance with child support orders. I note that in the husband’s written submissions it is acknowledged on his behalf that the husband’s failure to comply with previous orders is something that should be taken into account, though certainly not something that warrants a costs order against him. If the husband should complain about the relatively stingy award for costs that is made in his favour in these proceedings, he should remember that if his own attitude about the payment of child support had been different, these proceedings might have never been necessary. It is time for both of these parties to get on with the rest of their lives and to put behind them what appears to have been seemingly intractable conflict. I will give the wife 60 days to comply with the order for costs I have made. Accordingly the order I make is that the wife pay the husband’s costs of these proceedings in the amount of $4,320.00 such costs to be paid no later than 60 days from the making of these orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: Lisa Molloy

Date: 13 July 2007