R and R
[2010] FCWA 19
•3 FEBRUARY 2010
[2010] FCWA 19
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | R and R [2010] FCWA 19 |
| CORAM | : | MONCRIEFF J |
| HEARD | : | WRITTEN SUBMISSIONS IN CHAMBERS |
| DELIVERED | : | 3 FEBRUARY 2010 |
| FILE NO/S | : | PTW 2684 of 1987 |
| BETWEEN | : | R Applicant |
| AND | ||
| R Respondent | ||
| Catchwords: |
FAMILY LAW - costs - threshold issue
Legislation:
Family Law Act 1975 s 79A and s 117
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms T Farmer |
| Respondent | : | Mr S Jones |
Solicitors:
| Applicant | : | Slater Gordon |
| Respondent | : | Carr & Co |
[2010] FCWA 19
Case(s) referred to in judgment(s):
Nil
[2010] FCWA 19
1 The parties in these proceedings entered into consent orders on 10 March 1997. By an application filed on 22 April 2008, the applicant wife sought to set aside those consent orders relying on s 79A of the Family Law Act 1975.
2 The matter came before me on 11 September 2009, for hearing in relation to the s 79A application. It had been determined by an order made on 22 December 2008 that there be a separate hearing of the issues raised by the wife’s s 79A claim, in other words, as to whether or not the threshold issue of s 79A had been satisfied.
3 When the matter came on for trial counsel for the wife and the husband jointly
sought an expression of a preliminary view by me, which I gave. I indicated that on the material before me it was my preliminary view that the wife’s application had merit and that on the basis of the evidence presented to me my preliminary assessment was that it was more likely that the wife would succeed with her application than not.
4 As a consequence of my expressing such a preliminary view counsel for the
parties sought to have the matter stood down. Negotiations occurred between the parties and ultimately an agreement was reached which became the subject of orders in the following terms:
1. The orders made on 10 March 1997 be set aside.
2. The parties provide a list of all documents relevant to property settlement proceedings to the other within 60 days, including but not limited to tax and accounting records.
3. The matter be listed for a conciliation conference after 15 December 2009.
4. The parties file any submissions in relation to costs relating to the s 79A application within 28 days.
5. The parties file any submissions in response to the other party's submissions within 14 days thereafter.
6. The Trial Judge determine the issue of costs in chambers.
7. The husband and the wife do all acts and things and sign all necessary documents to effect the sale of the property situate at and known as [N Street] being more particularly described as Lot XX on Plan XXXX and being the whole of the land contained in Certificate of Title Volume XXXX Folio XX and the proceeds of the sale be applied in the following manner;
a.
in payment of agent's fees and legal and other costs associated with the sale;
b. in adjustment of rates and taxes; c.
in discharge of mortgage XXXXX to RAMS Mortgage Corporation Limited; and
[2010] FCWA 19
d. in payment of the balance then remaining into an interest bearing account in the parties' joint names pending the finalisation of the property settlement issues. 8. The husband as trustee for the [R Family Trust] and the wife do all acts and things and sign all necessary documents to effect the sale of the property situate at and known as [C Street] being more particularly described as Lot 1 on Plan XXXX and being the whole of the land contained in Certificate of Title Volume XXXX Folio XXX and the proceeds of the sale be applied in the following manner;
a. in payment of agent's fees and legal and other costs associated with the sale; b. in adjustment of rates and taxes; c. in discharge of mortgage XXXXX to Westpac Banking Corporation; and d. in payment of the balance then remaining into an interest bearing account in the parties' joint names pending the finalisation of the property settlement issues.
5 Those orders of course provided for each of the parties to file any submission in
relation to costs related to the s 79A application within 28 days. Submissions were filed by the respondent husband, on 9 October 2009, which was in time. The submissions for the wife were filed out of time on 16 October 2009. The wife did not seek an extension of time within which to file her submissions, nor offer any explanation as to the delay, however, given that the delay was for a period only of one week, and further that the submissions were not drawn to my attention until the end of January, I determine as a preliminary point that the wife should have leave still to file her submissions relating to costs notwithstanding the fact that they are out of time.
6 The wife seeks an order in her favour for costs on the preliminary determination
under s 79A and seeks that I fix costs in the sum of $15,315 plus a further amount of $1,500 of and incidental to costs issues between the parties. In the alternative, she seeks that the husband pay her costs to be taxed.
7 There is no breakdown of the amount of costs sought by the wife.
8 The submissions filed by each of the parties quite properly identify that the
question of costs is subject to s 117(1) of the Family Law Act 1975 which provides that, subject to subsection 117(2), each party to the proceedings shall bear his or her own costs.
9 Subsection 117(2) provides that if the Court is of the opinion there are
circumstances that justify doing so the Court may, subject to s 117(2A) make such
orders as to costs as it considers just.10 Subsection 117(2A) provides as follows:
[2010] FCWA 19
“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 proceedings and the terms of any such offer; and (g) such other matters as the court considers relevant.
11 The position for the husband is that he seeks that the Court should not depart
from the usual rule as to costs, ie; that each of the parties bear their own, but then
submits that either:
(a) no order for costs should be made at this stage, (my emphasis) - or (b) costs be reserved until the completion of the s 79 proceedings,
which I interpret to mean effectively the same thing
12 Neither of the parties is in receipt of Legal Aid and each of the parties have the
capacity to meet any costs order that may be made in the proceedings, although in the circumstances of this application, of greater relevance would be the husband’s capacity to meet a costs order.
13 The issues that are particularly relevant in consideration of this application are
the conduct of the parties, whether any party to the proceedings has been wholly unsuccessful in the proceedings and any other matter that the Court considers to be relevant.
14 On the face of it, it could be said that the wife has been entirely successful in the
proceedings and the husband wholly unsuccessful in that the wife has obtained the
preliminary relief that she sought.
[2010] FCWA 19
15 Each of the parties complain about the other’s procedural conduct and seek to
lay responsibility for delay and the lack of provision of information particulars at the feet of the other, however, in my finding, the determinative factor in this matter arises from s 79A itself.
16 Section 79A provides:
(1)
Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or (b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or (c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or (d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or (e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage; the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.” [my emphasis in each case]
17 Whilst the applicant wife has been wholly successful in the determination of the
threshold issue, the Court is yet to exercise its discretion as to the terms of any other
order under s 79 to be made in substitution for the order that has been set aside.
[2010] FCWA 19
18 Ultimately, it may well be that any variation to the original orders that the
applicant is able to achieve is not of such significance as to excite the Court to exercise its discretion to award costs overall. In other words the threshold victory may be a phyrric one and to make an order for costs at this stage may be premature, indeed, pre- emptive, as subject to the outcome on the substantive application, it is possible to envisage circumstances where indeed a costs order may not be made in favour of the wife.
19 In the circumstances I do not consider it appropriate to make an order for costs at
this time and propose to order that the question of costs on the threshold issue be adjourned for further consideration upon the conclusion of the substantive issue between the parties.
| Orders | ||||
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I certify that the preceding [19] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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