Pickering and Pickering (No 2)
[2011] FamCA 487
•23 June 2011
FAMILY COURT OF AUSTRALIA
| PICKERING & PICKERING (NO 2) | [2011] FamCA 487 |
| FAMILY LAW - COSTS – where in four separate applications the wife sought orders for costs against the husband – firstly, costs in relation to her successful application for a recovery order and part of the subsequent cost of airfares when recovering the children – secondly, costs on the basis that she had made two offers of settlement which the husband did not better at trial – thirdly, costs where the wife had unsuccessfully attempted to serve court documents on the husband and ultimately made an application to dispense with service – lastly, the wife sought costs in relation to her successful application alleging contravention – justification was found in the circumstances of each application for an order for costs to be made against the husband. |
| Family Law Act 1975 (Cth) ss 117 & 117A |
| Johnston and Johnston (2004) FLC 93-189 at [35] Petrucci and Petrucci [2010] FamCA 150 |
| APPLICANT: | Mr Pickering |
| RESPONDENT: | Ms Pickering |
| FILE NUMBER: | ADF | 1919 | of | 2005 |
| DATE DELIVERED: | 23 June 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 26 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr G Nicholls |
| SOLICITOR FOR THE RESPONDENT: | Nicholls Gervasi |
Orders
The husband pay to the wife the sum of twenty-eight thousand two hundred dollars ($28,200) by way of costs within four months of the date hereof.
The husband pay to the wife the solicitor’s costs of and incidental to the trial in relation to the amended application for final orders filed by the husband on 4 February 2008 and the amended response to an application for final orders filed by the wife on 16 January 2008, but limited to the issue of property settlement, such costs to be taxed in default of agreement between the parties.
The applications for costs filed by the wife on 5 November 2009, 12 November 2009, 4 December 2009 and 18 June 2010 be dismissed and removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Pickering & Pickering (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 1919 of 2005
| Mr Pickering |
Applicant
And
| Ms Pickering |
Respondent
REASONS FOR JUDGMENT
Introduction
The applications before me are the applications of the wife filed respectively on 5 November 2009, 12 November 2009, 4 December 2009 and 18 June 2010, all seeking orders for costs against the husband.
Specifically, the application filed on 5 November 2009 seeks an order for costs in relation to the wife’s successful application for a recovery order, the application filed on 12 November 2009 seeks an order for the costs of the trial in respect of which judgment was delivered on 28 October 2009, the application filed on 4 December 2009 seeks an order for costs in relation to the wife’s application to dispense with service, and the application filed on 18 June 2010 seeks an order for costs in relation to the wife’s successful application alleging contravention.
The amounts sought by the wife by way of costs are respectively $1,000 including disbursements of $330, $28,000, $2,600 including disbursements of $1,000 and $12,274.83, including GST.
The husband opposes all applications.
Factual Background
On 28 October 2009 I delivered judgment following a trial which took place over seven hearing days and on two further dates between 5 May 2008 and 20 October 2009.
When the trial commenced both parenting and property settlement issues were in dispute. However, after five days of hearing and a lengthy adjournment the parties were able to reach agreement as to the parenting issues, and when the trial resumed on 22 October 2008 I made final parenting orders by consent. The issue of property settlement was not able to be resolved though and that ran to judgment. I made final orders for property settlement on 28 October 2009.
On 29 July 2009 the husband advised the wife by a text message that he would be relocating to Queensland with the children H born in June 1995 and S born in December 2000. The husband shortly thereafter relocated to Queensland with these two children.
On 5 November 2009 the wife filed an amended application alleging that the husband had contravened the parenting orders.
As referred to above, on 5 November 2009 the wife also filed an application seeking, inter alia, a recovery order and the costs of the application.
As also referred to above, on 12 November 2009, the wife filed her application seeking an order for the costs of the trial, and on 4 December 2009 the wife filed her application seeking an order dispensing with service upon the husband of the applications filed on 5 November 2009,
12 November 2009 and 4 December 2009, and the costs of the application.On 7 December 2009 the said applications came before me and I made a number of orders including for the delivery up of the children by the husband to the wife, and the filing of documents. I also dismissed the application filed by the wife on 4 December 2009, but adjourned the question of the costs of that application.
The father failed to comply with the order for the delivery up of the children and on 23 December 2009 Burr J issued a recovery order, made various other orders and adjourned the proceedings to 19 January 2010.
The applications again came before me on 19 January 2010 when an agreement in relation to the children was reached and further consideration of all matters was adjourned to 22 February 2010.
Negotiations took place between the parties, and on 22 February 2010 all applications were further adjourned to 12 March 2010.
On 12 March 2010 all issues remained unresolved, and I made orders for the filing of further documents to prepare the application alleging contravention for hearing and I adjourned all applications to 30 April 2010.
On 29 April 2010 the husband filed a response to the application filed by the wife on 12 November 2009 and a response to the application alleging contravention. In those responses the husband sought that both applications be dismissed.
On 30 April 2010 it was confirmed that the application alleging contravention could be heard in the list of cases commencing on 4 May 2010, and the other applications were adjourned to 26 May 2010 to await the outcome of the application alleging contravention.
Watts J heard the application alleging contravention on 6 and 7 May 2010 and delivered his reasons for judgment and made orders on 28 May 2010. His Honour found the husband guilty of nine counts of breaching the orders made on 22 October 2008. One count had been withdrawn by the wife at the commencement of the hearing, and Watts J found that the husband had a reasonable excuse in relation to one other count.
Watts J ordered that the husband enter into a bond for a period of 12 months to be of good behaviour and comply with any parenting order in respect of the children of the marriage. Further, his Honour ordered make up time to be spent with the wife.
As referred to above, on 18 June 2010 the wife filed her application seeking the costs of and incidental to the application alleging contravention.
The Evidence
The wife was represented by Mr Nicholls, and the wife relied on her affidavits filed on 5 November 2009, 12 November 2009, 15 December 2009, 18 June 2010, paragraphs 21, 22 and 36 of her affidavit filed on
15 January 2010, the affidavit of her solicitor, Mr Nicholls filed on
4 December 2009, and her financial statement filed on 28 April 2010. There are of course the reasons for judgment delivered by Watts J on
28 May 2010 on which the wife also relies.With the wife’s affidavit filed on 18 June 2010, I note that annexed thereto were offers of settlement of the issue of costs. I informed the wife’s solicitor that that was not permitted under s 117C of the Family Law Act 1975 (Cth) (“the Act”) and I did not read those offers.
The husband appeared in person, and he relied on his affidavits filed on
7 February 2010 and 21 July 2010, and his financial statement filed on
21 June 2010.The hearing proceeded by way of oral submissions.
The Relevant Legislation
Any application for costs is governed by s 117 of the Act. The relevant subsections of s 117 provide as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
As can be seen there are in effect two questions to be addressed. First, are there circumstances that justify an order for costs, and secondly, if there are, what order, if any, should be made. These questions are answered by reference to the factors set out in s 117(2A).
The application filed by the wife on 5 November 2009
The costs sought in relation to this application are $1,600 for solicitor and counsel fees calculated on the Family Court scale and $1,000 for disbursements being an amount towards the cost of airfares for the wife and the two children.
I find that there are circumstances here that justify an order for costs. The children were taken unilaterally by the husband to Queensland and the husband was refusing to return them. Thus it was appropriate for the wife to take out the application for a recovery order, albeit the first order that was made provided an opportunity to the husband to deliver the children up to the wife to avoid the issue of a recovery order. However, the husband failed to comply with that order, and the wife was again quite justified in having the application relisted and pursuing the issue of a recovery order.
In the circumstances Burr J considered it necessary and appropriate to issue the recovery order, and his Honour did so on 23 December 2009.
As is the usual practice, and indeed as is indirectly referred to in the order, the Australian Federal Police when executing a recovery order require the parent applying to be available to receive the children once recovered. In this case, the wife was required to fly to Brisbane where the children were handed to her by the Australian Federal Police and she then returned to Adelaide with them.
The total cost of the airfares was $2,165 comprising $535 for the wife and her mother to fly to Brisbane at short notice and $1,630 for the wife, her mother and the two children to fly back to Adelaide. The wife though only seeks reimbursement in the amount of $1,000 in her application.
I observe that in some circumstances costs such as these can be recovered directly under s 117A of the Act, but that section does not apply here.
Nevertheless, plainly, the husband’s conduct has caused the wife to incur significant expenses in having the children returned to her to enable them to spend time with her pursuant to the orders of 22 October 2008.
Thus, to repeat, the circumstances here justify an order for costs being made.
With the next question, namely what, if any, order should be made, I propose to address that later in these reasons when I consider my conclusions about all of the applications.
The application filed by the wife on 12 November 2009
Here the costs sought are $14,000 for counsel fees and $14,000 for solicitor’s fees. However, the amount for solicitor’s fees is described as a “best guess” by Mr Nicholls. The solicitor’s costs from 9 November 2005 when the matter first started until 28 October 2009 are said to be approximately $40,000, but the wife was prepared to accept $14,000. However, as Mr Nicholls eventually conceded, in these circumstances, and on this information it is impossible for me to fix an amount for costs, and if successful this aspect needs to go to taxation.
The primary basis of the application is that there were offers of settlement made by the wife which the husband did not better at trial.
The first offer was contained in a letter dated 28 April 2008, namely a week or so before the trial commenced.
It is necessary to set out that letter in full as follows:
…
We refer to previous correspondence.
Noting the imminent trial in this matter and in a genuine attempt to settle children’s and property matters between the parties our client instructs us to make an offer to you in settlement of same.
We are instructed to make the offer on an open basis and therefore should it become necessary our client will rely on same on the question of costs.
We strongly recommend that you obtain independent legal advice as to the contents of this letter and especially the effect of an open offer on any costs application our client may instruct us to make.
As to children’s offers, our client offers to settle the same as follows:
1. That the children of the relationship namely [M] born […] September 1993, [H] born […] September 1995 and [S] born […] December 2000 live with the parties on a week about basis.
2. That the child of the relationship namely [R] born […] October 1989 live with either of the parties subject to her wishes;
3. That the parties share the parental responsibility for [R], [M], [H] & [S];
4. That special occasions including Christmas, Easter, the children’s birthdays, Mother’s Day and Father’s Day be shared equally between the parties at times agreed or in default of agreement as follows:
3.1(sic) With our client from 4.00pm on 24 December 2008 to 4.00pm on 25 December 2008 and each alternative thereafter and in the intervening years commencing 2009 from 4.00pm 25 December 2009 to 4.00pm 26 December 2009;
3.2(sic)From 9.00am to 5.00pm on Mother’s Day noting that our client will ensure the children are with you from 9.00am to 5.00pm on Father’s Day in the event Father’s Day coincides with times that the children are in her care;
3.3(sic) For Easter (being from 6.00pm Easter Thursday to 6.00pm Easter Monday) in each alternate year commencing 2009;
3.4(sic) For 3 hours each of the children’s birthdays – if it is on a school day from the close of school until 6.30pm and on a weekend from 1.00pm to 4.00pm;
5. That handover occur as follows:
4.1(sic) At the commencement of time that the children are in our client’s care to occur at our clients parent’s home and at the conclusion of times that the children are with our client at your parents home, but if it occurs on a school day then collection and drop off is to be at the school;
6. That in the event of a medical emergency occurring that affect either one or all of the children then the party in whose care the child or children are at the time of the emergency shall notify the other as soon as it is reasonably practical.
As to property matters our client instructions us that the asset pool comprises:
[Property at D] $480,000.00 Mitsubishi [vehicle] $10,990.00 Twin Cab with Crane $20,000.00 Twin Cab Ute (Nissan) ([…]) $30,000.00 Single Cab Ute ([…]) $1,000.00 […] Offroad Motorbike $3,000.00 Chipper $1,500.00 Caravan $2,800.00 Ride on lawnmower $2,000.00 [P Business] $35,000.00 Cows (18) $9,874.00 [W Business] Claim $25,000.00 $621,164.00 LESS Line of Credit $131,000.00 Legal fees ([W Business] claim) $25,000.00 $156,000.00 NET NON SUPERANNUATION ASSETS $479,164.00 Your superannuation $28,070.00 $28,070.00 Our client’s superannuation $6,333.00 $34,403.00
Our client instructs us to make an offer to settle the property matters as follows:
1. That you retain the property at Lot […], [G Street], [Town 1], SA […]. To that end our client will transfer her interest there-under to you and you are to refinance the line of credit into your sole name and indemnify our client in respect thereof;
2. That you pay our client the sum of $200,000.00 by way of bank cheque made payable to our trust account for and on our client’s behalf;
3. That our client forego any entitlement she may have under the [W Business] claim to you such that any monies that may be payable under the claim will be paid solely to you subject to you being responsible for any monies payable to [K Business] and indemnifying our client in this regards;
4. That our client transfer to you any interest that she may have under the [P Business] partnership;
5. Apart from the list of furniture, effects and personal papers that our client seeks to be returned to her pursuant to the list enclosed herewith that the parties retain all items of furniture and effect presently in their possession;
6. That thereafter the parties retain all assets of whatever nature and wherever situate held in their names or in their possession free from claim of the other.
We calculate the value of the offer to our client to be approximately 44 % of the net asset pool excluding superannuation entitlements.
We have provided our client with advice that her offer to settle is below her likely taking into account the shared care arrangement for the children. We have advised our client that her entitlement would be more in the vicinity of 50% of $232,582.00 less the value of the [Mitsubishi vehicle] retained by her at separation ($10,990.00) ie $221,592.00.
If the combined superannuation assets were split 50/50% then our client would be entitled to a split of a further $10,868.50 from your superannuation entitlements based on:
Your superannuation $28,070.00 Our client’s superannuation $ 6,333.00 $34,403.00 x 50% $17,201.50 less $6,333.00 $10,868.50
We ask that you contact the writer to confirm or to provide your response to our client’s offer as soon as possible.
The first thing to note about this offer is that it seeks to compromise both children’s issues and property settlement issues. Thus, on its face it was not open to the husband to only accept the offer in relation to say property settlement, and not children’s issues. This is important because in the end result the consent orders made in relation to the children provided for the children H and S to reside with the father, and accordingly, the husband was correct not to accept the offer. With the offer as to property settlement, although the percentage division proposed was slightly less generous to the husband than what I found at trial, and a number of the values assigned to the assets were different than I found, and not all assets and liabilities were included, the amount that the wife was to receive was slightly less than comprised in the offer. Thus, by itself, the offer in relation to property settlement was one that the husband should have accepted. However, to repeat, it seems that it was not open to him to accept that discrete offer, and in any event his position was that the children’s issues needed to be resolved first before property settlement could be finialised. In the circumstances of this case that was a reasonable position to take.
Thus, I find that the husband’s refusal to accept this offer cannot be the basis for an order for costs.
There was then a second offer said to be made in a letter sent to the husband dated 20 October 2008, i.e., just before the resumption of the trial after a lengthy adjournment and before the children’s issues were finally resolved. Again, it is necessary to set out the contents of that letter in full, as follows:
…
We refer to previous correspondence specifically your email dated 20 October 2008.
Our client will agree to be solely responsible her own costs associated with children’s issues and will agree to relinquish any claim against you for the same. Our client maintains that Clause 3(ii) in the draft minutes sent to you does not allow her to spend quality time with the children as they will be asleep. Please find the relevant draft Order attached for your perusal. Again we propose that the time outlined in Paragraph 3(ii) of the draft minutes be amended to either:
1. From 10:00am on Sunday to the start of school Monday in the
intervening week; or
2. From the close of school Friday to 3:00pm on Saturday in the intervening week.
In regard to the issue of property settlement we propose that an equal division of the net asset pool and the combined superannuation of both parties is appropriate in this instance. Further issues still exist regarding the liability of the parties to Westpac, namely a line of credit in the approximate sum of $131,000.00 Our client instructs that at separation the sum of money owing was approximately $12,000.00. Our client then spent a further $13,000.00. On this basis the client is happy to repay the $13,000.00 spent by her and half of the amount owing at the time of separation. She will not be liable for the approximate $106,000.00 spent by you post separation. We trust that this issue will be further discussed on Wednesday.
Please feel free to contact the writer via telephone to discuss this matter.
I note that the husband in his affidavit claims that he did not receive this letter, but I do not accept that.
Once again it can be seen that the offer in relation to property settlement was tied to the finalisation of the children’s issues. However, although the percentage proposed was generous to the husband compared with the ultimate result, there is very little detail as to for example the relevant assets and liabilities given the issues about that or the mechanics of the proposal, and further discussion is invited “on Wednesday”, which was when the trial was due to resume.
I observe that no evidence was put before me as to what transpired at these subsequent discussions or if they were even held. All I know is that the children’s issues resolved but the property settlement did not.
In these circumstances for similar reasons as in relation to the first offer, I do not accept that the husband’s apparent refusal to accept the offer per se can be a basis for costs being awarded against him, and in any event, the offer cannot be said to have been stated “clearly, precisely and with reasonable certainty” (see Petrucci and Petrucci [2010] FamCA 150 citing the Full Court decision in Johnston and Johnston (2004) FLC 93-189 at paragraph 35) and thus was not capable of being accepted.
However, these offers are still relevant in the context of the conduct of the parties to the litigation which is a relevant factor under s 117(2A)(c). They are particularly relevant as indicating the efforts that the wife went to to try and resolve the dispute between the parties, and in a general sense the reasonableness of her offers in relation to property settlement when compared with the final orders. On the other hand, the same cannot be said for the husband, and this is a significant matter to be taken into account.
The husband’s position at trial, and as he was at pains to point out in his affidavit, since the proceedings commenced, was that he should retain the major asset of the parties, namely the property at D, and retain his business, and receive 80 per cent of the balance of the assets of the parties. It is quite apparent that this was an unrealistic position and as such was a clear impediment to the resolution of the property settlement issues. Indeed, such a position in my view was even unrealistic if it was based on the circumstance of all of the children residing with the husband.
Added to this, there are my findings as to the credit of the husband and his non-disclosure which if not relevant under paragraph (c), can certainly be taken into account under the catch all provision in paragraph (g).
In relation to these matters I said as follows in my reasons for judgment delivered on 28 October 2009:
83.In giving his evidence the husband was evasive and he consistently sought to deflect the questions asked. Further I have serious concerns about his credibility. He clearly has no time for the wife’s partner [Mr X], and although the issues that the husband raised about him including his criticism of the wife for exposing the children to him related to the parenting orders that should be put in place, because that dispute and the dispute about property settlement were naturally heard together, this coloured his evidence generally. As a result, I prefer the evidence of the wife to that of the husband wherever there is a conflict. The wife struck me as being quite genuine in her evidence but I do concede that she was not necessarily always able to recall the detail of events.
84.One important area where I do not believe the evidence of the husband is his claim that he did not receive the email from the wife’s solicitors of 28 April 2008 requiring information from the husband as to the withdrawal of a total of $61,000 from the line of credit in the three months following separation. I find that the husband chose to withdraw substantial amounts of money from the line of credit immediately following separation without telling the wife, including depositing a total of $25,000 into a personal account that he commenced in July 2005, thinking that the wife would be responsible for at least half of these withdrawals given that the line of credit was in joint names and secured by way of mortgage over the jointly owned property at [D]. This is made plain by the circumstance that there were no withdrawals from the line of credit from 28 October 2004 to 10 March 2005, in other words prior to separation, and by the fact that there was a credit balance of $39,590.49 in the business cheque account at the time of separation. The husband’s failure to provide full and frank disclosure of these transactions was part of an attempt to cover up his actions in this regard.
This conduct, together with the unrealistic position the husband adopted at trial in relation to property settlement certainly justifies an order for costs being made again the husband in relation to that topic.
The wife claims in paragraph 8 of her affidavit filed in support of this application that since separation she has incurred considerable legal expenses and suggests that she only proceeded to trial because the husband refused to enter into any meaningful negotiations regarding property settlement. If by that the wife is suggesting that she should have costs for any period prior to the trial then I cannot agree with such a claim. There is no specific evidence before me as to what occurred between the separation and the trial as to when and why costs were incurred, and in any event even if the first offer of settlement was one that should have been accepted, any consequent order for costs would only cover costs incurred subsequent to the date of that offer.
Thus, in saying that there are circumstances justifying an order for costs, I am only referring to the costs of the trial and indeed only the costs that relate to the issue of property settlement. However, to be fair, it seems that in the end result that was in fact the submission made on behalf of the wife. It is quite apparent from email correspondence annexed to, for example, the husband’s affidavits that the children’s issues settled on the basis of there being no order for costs. Indeed, this is confirmed in paragraph 15 of the wife’s own affidavit filed on 12 November 2009.
However, there is a difficulty with this given that for the first five days of hearing both the children and property settlement issues were canvassed. That difficulty also extends to the documents prepared for the purposes of the trial, such as affidavits of evidence in chief, and of course it extends to the solicitor’s time in taking instructions and preparing those documents. The difficulty is that I have no evidence before me and no necessary basis to determine what proportion of the costs incurred relate to property settlement. In my view, that is yet another reason for sending the issue of the solicitor’s costs to taxation.
Turning then to the issue of counsel fees.
To repeat, the amount sought is also $14,000. I am told that counsel sent two accounts, one dated 12 May 2008 for $19,080 including GST of $1,780 and which related to the first five days of the trial, and one dated
24 October 2008 for $8,305 included GST of $755, and which related to the further two days of hearing on 22 and 23 October 2008 to complete the evidence and make submissions.Of the first account the wife seeks 50 per cent, namely $9,540 given that it related to both parenting and property settlement issues and of the second account $4,800 is sought being just the counsel fee for the two days of hearing.
Although this is somewhat rough and ready, from my knowledge of the trial, I consider this to be a reasonable claim in the circumstances. However, I will leave that until I consider what, if any, orders should be made in respect of all applications later in these reasons.
The application of the wife filed on 4 December 2009
This application for costs relates to the wife’s attempts to serve court documents on the husband and ultimately her application to dispense with service of those documents.
To repeat, on 29 July 2009 the wife received a text message from the husband advising that he would be relocating to Queensland with the children H and S, and shortly thereafter he did just that.
I am told that on 15 September 2009 the husband advised the wife and/or her solicitor of his address in Queensland.
The wife filed an application alleging contravention on 8 October 2009 and sealed copies of that application and the affidavit in support were sent to the husband by post, and he was also served personally.
On 20 October 2009, with the husband attending by telephone, the wife was given leave to amend that application and such amended application and any supporting affidavit was to be filed and served by 9 November 2009. The husband was then given three weeks after service upon him to file any responding documents on which he intended to rely, and the matter was adjourned to 7 December 2009.
At that hearing on 20 October 2009 the husband indicated that he required to be served personally with the amended application alleging contravention, and he confirmed his address as … S Street, Brisbane Suburb 1, Queensland.
On 5 November 2009 the wife filed her amended application and further affidavit, as well as her application seeking a recovery order and the affidavit in support of that application.
On the same day the wife’s solicitor forwarded sealed copies of the documents to the husband by registered post and instructed process servers to serve him personally as well.
On 10 November 2009 the process servers sent a report to the wife’s solicitors which read as follows:
…
We refer to the above matter and advise that on Monday
9 November 2009 at 5:10pm our agent attended the given address of [… S Street, Brisbane Suburb 1] QLD 4121 and noted the residential premises to be vacant. Our agent observed that there was mail addressed to [the husband] at the given address. Our agent spoke with neighbours who stated that [the husband] moved out at the end of October 2009. Our agent called the mobile telephone number provided of […], however this call went to message bank for “[Husband’s first name] from [T Business]”.On Monday 9 November 2009 at 7.20pm and Tuesday 10 November 2009 at 9.00am our agent called the mobile telephone number, however these calls went to message bank.
A search of Telstra White Pages failed to identify any listings for [the husband].
In light of the above, we have retained your unserved documents and respectfully seek your instructions regarding our future conduct in this matter.
Please find attached our tax invoice.
As a result of this report, attempts were made to serve the husband at two other addresses in Queensland, however, these attempts were unsuccessful.
It was in these circumstances that the wife brought her application to dispense with service.
On 7 December 2009 the husband again attended by telephone, and he advised that he had received the amended application alleging contravention and the application for a recovery order by post. In relation to the application filed on 12 November 2009 the husband provided the court with his new address and I noted that the wife’s solicitor would send a copy of that application to the husband at that address. On these bases I dismissed the application to dispense with service but reserved the question of costs.
To repeat, the costs sought are $670 for solicitor’s fees and $330 being the process server’s fees.
I find that there is ample justification for an order for costs being made in relation to this issue. The husband insisted on personal service yet he moved his address without telling the wife, her solicitor or the court.
Again, I will consider what order for costs (if any) should be made in relation to this application later in these reasons.
The application filed by the wife on 18 June 2010
To repeat, this application seeks costs in relation to the contravention proceedings which culminated in the husband being found guilty by Watts J of nine counts of breaching the orders of 22 October 2008.
The amount sought is $12,274.83, comprising counsel fees of $6,105 including GST, and solicitor’s fees of $6,169.83.
The basis of the claim for costs is that the husband has been wholly unsuccessful. Originally, there were 11 counts alleged, and the husband pleaded not guilty to all of them. However, one count was withdrawn early in the hearing, and Watts J found that the husband had a reasonable excuse for one other count, namely count 9. In relation to this count though, there appears to be some confusion in his Honour’s judgment and I suspect that his Honour was in fact referring to count 10. That is because, when discussing count 9 everything his Honour says seems to indicate that there was no reasonable excuse and that is borne out by the fact that in
his Honour’s order his Honour found the husband guilty of count 9. However, with count 10 the opposite is the case, namely, where his Honour discusses this count he seems to be saying that there was a reasonable excuse, and in his findings as to the breaches of the orders his Honour does not include count 10.In any event, it is not the case that the husband was wholly unsuccessful, but that does not necessarily result in there being no order for costs. I am able to take into account the result of the application under paragraph (c), but if not, certainly under paragraph (g), as well as other issues such as the conduct of the husband in relation to the proceedings.
In respect to the latter, I note the findings of Watts J as to the husband’s credit. For example, his Honour found as follows:
19. The father was an unimpressive witness. He presented as a man of at least average intelligence. The affidavit that he filed on 7 December 2009 is a document which was prepared by him without assistance. That document discloses an above average command of the English language and the ability to express himself in written form. I have evidence that the father, whilst currently unemployed, was involved in the building industry for many years. For part of that time he was the joint proprietor of a business which originally operated as a partnership. He was then the director of a company which ran that business. I find that the father is not unintelligent. It is part of his defence to this application that I accept that he is, but I do not.
20. A lynch pin of the husband’s “reasonable excuse” in this case is what can only be described as an absurd and bizarre interpretation of the original consent orders…
24. The father gave inherently unbelievable evidence that, at relevant critical times, his ability to access the internet was such that he was unable to receive email messages sent to him by the mother. He asserts that these messages were never received at any time by him. The mother’s evidence which I accept is that the email messages were sent by her and she received no indication from her email provider that the messages had not been received by the intended recipient, the father.
25. I find that the father also fabricated evidence in relation to placing a note in S’s school bag informing the mother of his intention to change S’s school after term 1 2009…
On the other hand his Honour found in relation to the wife that:
18. The mother impressed me as a credible witness. There was no point during her cross examination where I thought she was untruthful and nothing in any of the material that she has presented is inherently unbelievable.
This, combined with the fact that of the ten counts that were pursued the husband was found guilty of nine of them clearly justifies an order for costs, but again I still need to determine what (if any) order for costs is in fact made, and it is to that topic that I now turn.
Conclusion
I have found that in relation to each application for costs there are circumstances that justify an order for costs being made.
To repeat, the costs sought by the wife are respectively:
Application filed 5 November 2009 - $2,600
Application filed 12 November 2009 - $28,000
Application filed 4 December 2009 - $1,000Application filed 18 June 2010 - $12,274.83
Of relevance of course to what order is made are the financial circumstances of each of the parties, as well as their conduct and the outcome of the various proceedings.
According to the wife’s financial statement filed 28 April 2010 she receives a New Start allowance of $216 per week, her claimed expenses are $201 per week comprising rent and child support payments of $41 per week to the husband, she has assets valued at $5,000, and she has superannuation of $10,000.
According to the husband’s financial statement filed on 21 June 2010 he also receives a New Start allowance of $180 and he says that he only receives child support of $19 per week from the wife. The husband’s claimed expenses are $135 per week being his rent, he has assets valued at $6,500 and superannuation of $26,175. He also claims though to spend $290 per week on food and household supplies and other such expenses. Where he gets this money from is not explained in his financial statement.
The husband also filed an affidavit on 21 July 2010 pursuant to an order that I made at the request of the wife. This affidavit was supposed to detail what the husband did with the money that he received from the property settlement. The affidavit comprises one effective paragraph wherein the husband says that:
2. Since receiving my share of the money from the settlement as ordered by Justice Strickland I have spent the money as follows to the best of my recollection:
Approx $30,000.00 in legal fees
Approx $21,000.00 in loan repayments
Approx $20,000.00 in rent
The balance was spent on general living expenses, relocation and debt consolidation.
For my part I do not view either financial statement as definitive of the financial circumstances of the respective parties. The wife has a history of working at least part time and I would expect her to be able to obtain employment. In addition, her partner has been in the throes of establishing a business, and it is quite clear that he assists in supporting the household. With the husband he has extensive qualifications and experience in the building industry, and I have no doubt that if he wanted to work he could readily obtain work. Further, given the lack of detail in his affidavit I have difficulty in accepting that he does not still have access to monies that he received from the property settlement. Accordingly, I find that the husband’s alleged financial circumstances do not prevent orders for costs being made, and particularly when the husband’s conduct as outlined throughout these reasons is also to be taken into account.
In considering any application for costs it is always my preference to fix the amount of costs orders rather than to send the same to taxation. In this case I have sufficient information to do that in relation to all applications except, as I referred to earlier, the solicitor’s costs sought in relation to the trial and preparation for that trial.
In relation to the costs sought in application filed on 5 November 2009 the costs sought of $1,600 are calculated on the Family Court scale and should be allowed, as should the disbursements claimed of $1,000. Both these costs and the disbursements are more than reasonable in the circumstances.
In relation to the application filed on 4 December 2009, the costs sought of $670 are again calculated on the Family Court scale, and they, and the disbursements are also reasonable.
In relation to the costs sought in the application filed on 18 June 2010, I had the benefit of an itemised bill of costs. It seems to me though that there are items claimed which would not be allowed on a taxation. For example, and I highlighted this during the hearing, in my view the preparation of the responding affidavit was unnecessary and the costs of that should not be allowed. There are other items as well that I am concerned about, but using a broad brush approach I would fix the solicitor’s costs at $4,500.
With counsel fees, I have the benefit of the actual accounts rendered, and I find that the charges are reasonable and appropriate in the circumstances, namely a total of $6,105 including GST.
Finally, in relation to the costs sought in the application filed on
12 November 2009, the costs sought are $28,000, $14,000 for counsel fees and $14,000 for solicitor’s fees.I have set above how the counsel fees are calculated, and I consider that they are reasonable and appropriate.
However, to repeat, it is not possible for me to fix the amount of the solicitor’s fees, and that will have to go to taxation unless it can be agreed between the parties.
Accordingly I propose to order the husband to pay costs and disbursements fixed in the total sum of $28,205, rounded down to $28,200, and to make a further order that the husband also pay to the wife the solicitor’s costs of and incidental to the trial that was heard on 5 to 9 May 2008, 22 and
23 October 2008, 15 September 2009, and 20 October 2009, including the costs of preparation for that hearing, but limited to the issue of property settlement.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 23 June 2011.
Associate:
Date: 23 June 2011
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Appeal
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