Pelton and Banbury (No 2)

[2018] FamCA 1173

FAMILY COURT OF AUSTRALIA

PELTON & BANBURY (NO. 2) [2018] FamCA 1173

FAMILY LAW – COSTS – where the wife is seeking that the husband pay her costs for two days in court– where costs are appropriate in the circumstances - where the orders made are not exactly the same as the orders sought by the wife - where the husband is only ordered to pay the wife’s costs of the second day – where the way in which the husband conducted his case with respect of the filing of documents and the conduct of the hearing itself added unnecessarily to the length of the case and the need for an adjournment

Family Law Act 1975 (Cth) s 117(2)

APPLICANT: Ms Pelton

RESPONDENT: Mr Banbury

FILE NUMBER: MLC 10051 of 2018

DATE DELIVERED: 14 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 14 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Matta

SOLICITOR FOR THE APPLICANT: Hargreaves Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Mihaillidis

SOLICITOR FOR THE RESPONDENT: Oxford Partners Lawyers

Orders

IT IS FURTHER ORDERED THAT

1. By 4.00pm on 14 December 2018 the husband pay the wife’s costs of this day fixed in the sum of $2,431.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pelton & Banbury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10051 of 2018

Ms Pelton

Applicant

And

Mr Banbury

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter was listed before me in the Judicial Duty List. I ultimately adjourned the parenting applications to the Registrar pending investigations being made by the Department of Health and Human Services, following upon the filing by the husband of a Notice of Child Abuse, Family Violence or Risk of Family Violence (“Notice of Child Abuse”). When the matter commenced before me yesterday the husband sought leave to file that Notice of Child Abuse, albeit it was not formally filed until this morning because of the late finish yesterday. I also made orders by consent in relation to the financial issues, orders for discovery, the appointment of valuers and injunctive relief. 

2. The wife seeks an order that the husband pay her costs of both yesterday and today.  The totality of that order is $6893 on scale.  Although I am not being pressed to make an order for indemnity costs, submissions were made with respect to what the wife’s costs will actually be.

3. Generally in proceedings in this Court parties bear their own costs. That general rule is subject to section 117(2) of the Family Law Act 1975 (Cth) (“the Act”), which provides that if the court is of the opinion that there are circumstances that justify it doing so, it may make such order as to costs as it considers just. There are certain matters the court must consider which are set out in section 117(2)(a) of the Act.

4. It was submitted on behalf of the wife that the Court should not only make an order for the costs of today but for the wife’s interim application generally  given that her application has been to a large extent successful.  

5. I was referred to the wife’s Amended Initiating Application which sets out the orders she sought on an interim basis, and whilst it is true that orders have been made largely in those terms, it does seem to me that there is a significant amendment with respect to both paragraph 6 of that application, as amended and at paragraph 9.  The first of those being an application, whilst it wasn’t pressed, regarding spousal maintenance and child support, and the second being injunctive relief.  Which, in my view, whilst the husband has now consented to an order in similar terms were significant issues.

6. In these circumstances I am not satisfied that I should make an order for the costs of the first day of this hearing.  However, I am satisfied that the circumstances in this case do justify my making an order for the costs of this day. The husband opposed orders, in my view, without any substance or real basis for doing so. In particular, orders with respect to valuation and an assertion that Ms N was not qualified with no evidence to support that assertion.

7. It is also the case that the wife’s application was filed in August and it was not until a matter of days before this hearing that the husband filed his answering material.  More importantly, it was not until the commencement of the hearing that he sought to file a Notice of Child Abuse.  Those matters and the way in which he conducted his case significantly added in my view, unnecessarily to the length of the case necessitating an adjournment of the matter to today.

8. These are matters that in my view should and could have been contained had the husband conducted his case differently both with respect to the filing of documents and the conduct of the hearing itself. In these circumstances I do propose to accede to the application for the wife’s costs of this day.  The rules provide that I can fix those costs and I propose to do so.  Those costs on scale are $2431.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 14 November 2018.

Associate: 

Date:  13 March 2020