Rabino & Rainsford

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Rabino & Rainsford [2022] FedCFamC1F 137

File number(s): BRC 4468 of 2019
Judgment of: BAUMANN J
Date of judgment: 15 March 2022
Catchwords: FAMILY LAW – COSTS – Where the wife sought an order for costs – Where the husband ordered to make a contribution to the wife’s costs in a fixed sum
Legislation:

Family Law Act 1975 (Cth) ss 75; 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:

Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 135 ALR 160

Browne v Greene (2002) FLC 93-115

Leary v Leary [1987] 1 ALL ER 26

Rabino & Rainsford (No. 2) [2021] FamCA 551

Rabino & Rainsford (No. 3) [2021] FamCA 616

Division: Division 1 First Instance
Number of paragraphs: 31
Date of last submission/s: 20 September 2021
Date of hearing: On the papers
Place: Brisbane
Solicitor for the Applicant: Hirst & Co
For the Respondent: Litigant in person

ORDERS

BRC 4468 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS RABINO

Applicant
AND:

MR RAINSFORD

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

15 MARCH 2022

THE COURT ORDERS:

1.That the husband pay a contribution to the costs of the wife fixed in the sum of $50,000, by no later than 4.00pm on 29 March 2022, payable from the funds held in the Trust Account of Hirst and Co Solicitors.

2.That the remaining balance of $120,000 held in the Trust Account of Hirst and Co Solicitors be paid to the husband.

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 the pseudonym Rabino & Rainsford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

  1. After a property proceedings trial over two days was completed on 15 May 2020, it was necessary to receive further submissions before final orders were pronounced on 23 August 2021.

  2. In effect, the orders were based on combined nett pool of assets totalling $1,764,955 (see Appendix One to Reasons in Rabino & Rainsford (No. 2) [2021] FamCA 551). A significant issue at the trial was whether the husband’s estimated severance payment of $547,635 should be included in the balance sheet (as the wife contended) or be regarded as a “financial resource”…

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Details
Case
[2022] FedCFamC1F 137
Decision Date

CaseChat Overview and Summary

Rabino & Rainsford involved a dispute between a husband and wife regarding the costs of their family law proceedings. The husband argued that he should not be required to pay the wife’s costs from a specific date, while the wife claimed that the husband’s behaviour and lack of disclosure warranted a significant contribution to her legal expenses. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the husband had acted unreasonably by not accepting a settlement offer and whether his failure to make full and timely disclosure justified an award of costs on an indemnity basis. The court had to consider the husband’s conduct during the proceedings, the impact of his non-disclosure on the wife, and the principles of fairness in determining the appropriate costs order.

In its decision, the court found that while the husband had not erred in rejecting the settlement offer, his conduct during the proceedings was exceptionally poor, warranting costs on an indemnity basis for the hearings on specific dates. The husband’s failure to make full and timely disclosure also justified an indemnity costs award for additional expenses incurred by the wife. However, the court deemed the claim for costs of the costs application itself to be excessive, and thus, a more reasonable sum was awarded on a party/party basis. Ultimately, the court fixed the husband’s contribution to the wife’s costs at $50,000, deducting this amount from the funds held in the Trust Account of the wife’s solicitors, with the balance to be returned to the husband.

The court ordered that the husband contribute $50,000 to the wife’s costs, to be deducted from the Trust Account. The balance of $120,000 held in the Trust Account would be returned to the husband.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this case, I am not persuaded the husband erred in not accepting the offer made 8 February 2019 and repeated on 22 November 2019.CONCLUSION In my assessment, it would not be just for the husband to pay the wife’s costs of the proceedings from 8 February 2019, however it is just for the husband to make a contribution to the wife’s costs of:(a)The hearings on 9 December 2019 and 5 March 2020; (b)Additional costs incurred in respect to the failure of the husband to make full and timely disclosure; and(c)This costs application. The quantification of costs could be achieved by a thorough assessment by a Registrar (which I would have the power to order), however that process itself will expend further funds and cause more delay. I am conscious of the fact that $170,000 has been held in the Trust account of the wife’s solicitors pending determination of this costs dispute, and to that extent, I regret my delay in publishing these Reasons. I have formed the view that it is in the interests of justice and for the benefit of these parties to fix costs (see r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and Leary v Leary [1987] 1 ALL ER 26 at [265]). The components of the ultimate sum awarded is:(a)In respect of the hearing on 9 December 2019 and 5 March 2020, the conduct of the husband requires costs to be awarded on an indemnity basis because this behaviour and obstinance was exceptionally poor. I allow a fixed sum of $25,000 based on the husband’s estimate of party/party expenses of $12,700 approximately;(b)I allow a further $20,000 for costs, on an indemnity basis, relating to the failure of the husband to make full and timely disclosure, not in any way as a “penalty” but as an estimate arising from the wife’s evidence of her expenses; and (c)I regard the claim of $20,000 (on an indemnity basis) for the Application for costs as excessive. The Court’s determination is to be logical and reasonable (Beach Petroleum NL & Claremont Petroleum NL v Johnson (1995) 135 ALR 160 at [164]). On a party/party basis of $5000 is allowed. In total therefore, I will make an order that the husband make a contribution to the costs of the wife fixed in the sum of $50,000, to be deducted from funds held in the Trust Account of Hirst and Co Solicitors. The balance held of $120,000 shall be paid to the husband.

Ratio Decidendi

Legal Principle Established

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