R and O
[2000] FMCAfam 22
•29 August 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & O | [2000] FMCA fam 22 |
| COST ORDER – Section 117(1) and s118 FLA |
| Applicant: | M S R |
| Respondent: | D H O |
| File No: | ZB2294 of 2000 |
| Delivered on: | 29 August 2000 |
| Delivered at: | Brisbane |
| Hearing Date: | 28 August 2000 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Neumann |
| Counsel for the Respondent: | Mr Hartley |
ORDERS
I order that the wife pays the husband’s costs of and incidental to these proceedings from and including 14 August 1998, such costs to be agreed or as taxed.
I order that such costs be payable within 30 days of agreement being reached or the costs being taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
ZB 2294 of 2000
| M S R |
Applicant
And
| D H O |
Respondent
REASONS FOR JUDGMENT
CHRONOLOGY
26 October 1994 : Parties separated after nearly 7 years of marriage. There are 2 children of the marriage, K (aged 10 years) and T (aged
7 years).
28 July 1997 : Decree Absolute of Dissolution of Marriage issues.
18 June 1998 : Wife files application in Lismore sub-registry of the Family Court of Australia with the assistance of Messrs Harris Fiford Crane, Solicitors, of Alstonville, seeking:
a)An order for final property settlement, in the sum of $30,000 or such further sum as the court may determine;
b)An order for lump sum spousal maintenance of $20,000.
5 August 1998 : Letter from solicitors for husband to solicitors for wife giving certain material by way of disclosure.
11 August 1998 : Husband filed a response seeking, by paragraph (1) an order that the wife’s “Application for final orders for property filed 18 June 1998 be dismissed”.
12 August 1998 : Matter listed for first return date (directions hearing) in the Family Court.
11 August 1998 : Husband’s offer of settlement filed – seeks order that the wife’s application for property settlement “be dismissed”.
13 August 1998 : Letter from solicitors for wife to solicitors for husband, referring to letter of 5 August 2000 and the documentation enclosed therein and raising some other issues. Importantly, in the final sentence an indication of a possible settlement was raised when the solicitors said:
“At this stage, we anticipate instructions that our client will accept the sum of $10,000 in settlement of her claim”.
7 October 1998 : Conciliation conference held in Lismore – the Form 17A’s, that are of course not sworn documents, were filed to assist the Registrar conducting the conference. The matter did not settle.
It is unclear what further attempts to settle the matter took place before the matter was transferred by a Deputy Registrar of Family Court to this Court on 28 July 2000.
The wife has now decided to discontinue the whole of the proceedings and the husband seeks an order for costs. The solicitors have estimated costs, on the Family Law Scale, between 18 June 1998 and 1 August 2000 (including a 15% care and consideration factor) to be $5,440.91.
The law
Section 117(1) of the Family Law Act lays down a general principle, that each party shall bear their own costs, subject to s117(2) and s118. s117 confers upon the Court a broad record discretion in relation to costs, which must of course be exercised having regard to the matters set out in s117(2A) so far as they are relevant.
Section 117(2a) considerations
I was assisted by submissions for both parties including a written submission on behalf of the wife.
In considering whether it is justifiable to make an order for costs I have taken into account the following matters raised by s117(A) namely:
a)The fact that, notwithstanding the current assertion that the husband is now out of work, his financial circumstances and resources are superior to those of the mother;
b)In terms of the conduct of the parties it seems that:
i)The initial claim by the mother was in the form of an “ambit claim” made 6 weeks prior to her right (without leave) to pursue her claim expiring;
ii)
The father had made substantial disclosure of his financial circumstances as a result of a combination of his Form
17 (filed 11 August 1998) and a letter of disclosure dated
5 August 1998;
iii)Whilst the offer by the husband dated 4 August 1998 was a little unclear in its “terms” as to whether it was meant to also refer to the “spouse maintenance part of the claim”. I am satisfied that it was reasonable for the wife to assume that the offer related to the whole of the proceedings. Essentially, the difference between the offer and the husband’s response was that the husband, in the offer, was prepared to bear his own costs;
iv)The wife, by her solicitor’s letter of 13 August 1998, acknowledged receipt of the disclosed material and made a “compromise offer”;
v)It follows that my view was that if the mother argues that she commenced proceedings without being clear at that time, of the financial position of the parties then substantially, clarity had been achieved by 13 August 1998, when the wife was able to make an offer;
vi)The only relevant issue in relation to financial resources which was, in hindsight, still unclear was the husband’s superannuation entitlement. In respect of that issue:
·The husband’s form 17 revealed Employer Contributions of $11,000;
·The letter of 5 August 1998 referred to the husband’s superannuation at separation being $3,768.07;
·The wife’s solicitors in their letter of 13 August 1998 raised no queries as to the extent of the husband’s superannuation in 1998 (nearly 4 years after separation), even when the only apparent document in respect of that superannuation disclosed was “as at 1 July 1994”;
In the absence of that enquiry, it seems the wife was still able to form an offer, from which she has completely resiled as a result of her decision to discontinue her proceedings.
Because there has been no trial, the wife says it cannot then he the case that she has been “wholly unsuccessful in the proceedings”. It is further submitted that the wife’s application can not be described as “an application without merit”. It is unnecessary for me to decide whether the application had any merit. Certainly, in the absence of an application, it would seem the wife may not have received the benefit of the disclosure. With the benefit of that disclosure and it would seem, further advice, she has chosen to discontinue her applications. In the context of the applicant seeking some relief of benefit to her and save to the extent of disclosures being made to her, it follows that her discontinuance amounts to her being “wholly unsuccessful in the proceedings”.
c)The only other relevant matter to be considered is the apparent fact that the husband is currently in arrears for child support to the extent of $6,500. Any costs order which I may make against the wife, may become an issue in any applications for review or departure of child support, but that is not a matter for me to decide today.
Findings
It is not unusual for parties at separation to have different levels of knowledge of the family finances. Where, as in this case, proceedings are commenced some 4 years after separation, it was not unreasonable in my view for the wife to commence proceedings, not only to protect her claim but also to ascertain the quantum of any claim and its likelihood of success.
This application could not be regarded as frivolous or vexatious, however after offers and disclosures had been made to her, the wife was able to determine whether to proceed or seek to settle the matter if possible. The husband’s position from the time of the filing of his response has been consistent.
The husband should not be penalised by incurring costs after the wife had enough opportunity to examine the documents disclosed and consider the offer to settle but chose to continue with her application.
I therefore find that this is a matter where the husband is entitled to an order for part of his costs. It is my view that on the face of the material, the wife was essentially in the same position on 13 August 1998 as she is now, and could have made the decision on or before 13 August 1998 to discontinue on the terms offered by the husband that each party pay their own costs. That offer was clear and capable of acceptance by 26 August 1998.
I order that the wife pays the husband’s costs of and incidental to these proceedings from and including 14 August 1998, such costs to be agreed or as taxed.
I order that such costs be payable within 30 days of agreement being reached or the costs being taxed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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