Popovic & Popovic (No 2)

[2023] FedCFamC2F 731

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Popovic & Popovic (No 2) [2023] FedCFamC2F 731

File number(s):	PAC 4697 of 2022
Judgment of:	JUDGE TAGLIERI
Date of judgment:	15 June 2023
Catchwords:	FAMILY LAW – costs – costs of review application – where husband seeks wife pay his costs of the application for  review – order that wife pay the husband’s costs of the review hearing
Legislation:	Family Law Act 1975 (Cth) ss 117(1) and 117(2)
Division:	Division 2 Family Law
Number of paragraphs:	18
Date of hearing:	15 June 2023 on the papers in Chambers
Place:	City G
Counsel for the Applicant:	Mr Givney
Solicitor for the Applicant:	Maclarens Lawyers
Solicitor for the Respondent:	Ms Godden, Godden Lawyers

ORDERS

PAC 4697 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR POPOVIC

Applicant

AND:

MS POPOVIC

Respondent

order made by:	JUDGE TAGLIERI
DATE OF ORDER:	15 June 2023

THE COURT ORDERS THAT:

1.The Wife pay the Husband’s costs of $3,731.00 on or before the date of completion of the sale of the property known as B Street, Suburb C, with such sum to be deducted from the amount to be paid to the Wife in accordance with Order 13(f) of the Orders dated 23 December 2022 at the latest.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Popovic & Popovic (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Judge Taglieri

1. I delivered judgment on 2 May 2023 (“the reasons for judgment”) in relation to an Application for Review filed in these proceedings on 13 January 2023 (“the Application for Review”).  I made an order largely dismissing the Application for Review.  The husband Mr Popovic (“the Husband”), who was the respondent to the Application for Review, has now sought an order for costs against the wife Ms Popovic (“the Wife”).

2. The parties consented to an order that the Court determine the application for costs in Chambers on the basis of written submissions.  I have considered the written submissions filed on behalf of the Husband on 17 May 2023 and those filed on behalf of the Wife on 24 May 2023.  The order sought by the Husband is that:[1]

   The wife pay the husband [sic] costs of $3,731, on or before the sale of the property known as [B Street, Suburb C] with such sum to be deducted from the amount to be paid to the wife in accordance with order 13 (f) of the Orders dated 23 December [2022].

   [1] Written submissions of the Husband filed 17 May 2023 at page 2.

3. The Application for Review concerned an order made by a Senior Judicial Registrar on 23 December 2022 requiring the sale of the parties’ former matrimonial home and the listing of the property for sale in March 2023.

4. In effect, the Wife’s Application for Review sought discharge of the interim order for sale of the former matrimonial home in circumstances where she resided in the home with the three of the four children of the marriage.

5. In determining that it was in the interests of justice to both parties to exercise the power to make interim property orders and in particular make an order for the sale of the former matrimonial home, I was influenced by the circumstances set out at [20] of the reasons for judgment.  Further, I considered that public interest considerations set out in the reasons for judgment at [21] were consistent with an interim order for the sale of the matrimonial home. 

6. In essence, while I acknowledge that the Wife would be somewhat inconvenienced if required to vacate the former matrimonial home upon its sale, this inconvenience was a consequence of the parties’ separation and there did not seem to be good reason to delay the sale of matrimonial home in all the circumstances.  I also accepted that the sale of the former matrimonial home would ultimately be inevitable and that there was no evidence adduced demonstrative of the Wife’s capacity to acquire the Husband’s interest in the former matrimonial home on a final basis.

7. Notwithstanding the above, I was persuaded that completion of the sale of the former matrimonial home should not occur within the high school certificate examination period as one of the children was sitting high school certificate exams.

   COMPETING SUBMISSIONS AS TO COSTS

8. The written submissions relied upon by the Husband forcefully emphasise the history of the proceedings and the rejection by the Wife of an offer he had made on 27 April 2023, which was premised on the former matrimonial home being listed for sale in December 2023 (“the offer”).

9. Although the offer was made “without prejudice save as to costs”, the Husband now seeks his costs on a party-party basis only and says that the Wife was, in effect, wholly unsuccessful on the Application for Review and unnecessarily caused him to incur legal costs in the review.

10. For the Wife, it is submitted that it would be consistent with the interests of justice and all the circumstances of this case for each party to pay their own costs.  It is emphasised that she:

    (a)Had obtained interest-only payments of the mortgage;

    (b)Was seeking to provide a stable situation for the children, particularly the child sitting her high school certificate this year;

    (c)Wished to avoid the uncertainties of a tight rental market;

    and for the foregoing reasons the outcome of the review was not a foregone conclusion.

11. The Wife also submitted that the Husband was not wholly successful, given the terms of the order for completion of the sale not to occur within the high school examination period.  Emphasis was also placed on the Wife’s parental responsibilities, allegations of the abusive conduct by the Husband, and the financial hardships and emotional responsibilities of being a single parent.

    EVALUATION AND DETERMINATION

12. It is uncontroversial that proceedings under the Family Law Act 1975 (Cth) (“the Act”) are ordinarily conducted on the basis that each party bear their own costs.[2]  It is also uncontroversial that the Court does have a power to award costs against a party, and in deciding whether it should do so, it must take into account a number of non-exhaustive considerations.[3]

    [2] Section 117(1) of the Act.

    [3] Section 117(2) and (2A) of the Act.

13. Furthermore, it is established that when having regard to the matters to be considered and in deciding whether to make an order for costs at all, the Court exercise discretion. 

14. The state of the parties’ respective finances as discussed in the reasons for judgment, and I evaluate the relevant considerations as follows:

    (a)The parties each have relatively modest financial means, although both are in employment.  The Husband’s earnings are likely to be greater than those of the Wife;

    (b)It appears that neither of the parties are in receipt of legal aid;

    (c)In declining the Husband’s offer of 27 April 2023, the Wife pressed to achieve an outcome that would allow her to remain in the former matrimonial home for an indefinite and non-foreseeable period of time;

    (d)In pursuing a hearing of the Application for Review, the Wife rejected a preferable timeframe for sale of the former matrimonial home after the exams which was more advantageous to her than the effect of the order of the Senior Judicial Registrar;

    (e)The Wife’s Application for Review was wholly unsuccessful in the light of the Husband’s offer of 27 April 2023.

15. In addition to the evaluation I have noted above, I do not ignore what is submitted in the Wife’s written submissions at [9] and [10].  However it is difficult to give those matters particular weight in the discretionary exercise when the parties’ evidence has not been the subject of cross-examination and final findings of fact are yet to be made.

16. I accept that an order reserving the Husband’s application for costs will not have the effect of “costs vanishing into the ether”, but it is strongly preferable that the costs application be determined by the judge who heard the Application for Review when relevant considerations are clear and fresh, as opposed to being potentially blurred by other events in the proceedings.

17. The costs sought by the Husband are relatively modest and I accept, noting the contents of Exhibit W-1[4], that the wife is likely to have the means of paying the sum claimed either immediately or at the latest upon completion of the sale of the former matrimonial home.

    [4] Tendered at the Review hearing

18. For all of the foregoing reasons there will be an order in effectively the terms sought by the Husband.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

Associate:

Dated:       15 June 2023