REICHSTEIN & REICHSTEIN

[2012] FamCA 90

FAMILY COURT OF AUSTRALIA

REICHSTEIN & REICHSTEIN [2012] FamCA 90

FAMILY LAW - COSTS – application by the wife seeking costs against the husband in relation to the property issues – where there were both children’s and property issues in dispute – whether the circumstances justify the making of a costs order – consideration of s 117(2A) factors – where the husband was not wholly unsuccessful in relation to the children’s issues but wholly unsuccessful in relation to property issues – where the Court found that the division of time spent on the issues would be approximately 70 per cent to property issues and 30 per cent to children’s issues – orders that the husband pay 70 per cent of the wife’s costs on the scale.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Reichstein

RESPONDENT: Ms Reichstein

FILE NUMBER: ADC 1379 of 2011

DATE DELIVERED: 18 January 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 18 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Berman SC

SOLICITOR FOR THE RESPONDENT: Rossi Legal

Orders

1. The father pay 70% of the mother’s costs on the scale for the period from 5 August 2011 up to and including today’s hearing at an amount to be agreed between the parties or taxed by a Registrar of this Court.

2. All outstanding applications be otherwise dismissed and removed from the pending list.

IT IS NOTED that publication of this judgment under the pseudonym Reichstein & Reichstein has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 1379 of 2011

Mr Reichstein

Applicant

And

Ms Reichstein

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Listed before me today were a significant number of applications in vigorously contested proceedings between the parties which first commenced between them on 10 November 2003, over eight years ago.  The proceedings appeared first resolved by orders made by Mushin J on 6 March 2006 after contested trial proceedings.  That though was by no means the end of the matters contested between the parties.  The husband filed a Notice of Appeal against that decision and ultimately he was successful in a number of respects in relation to that Appeal. 

2. After a reasonably lengthy period of dormancy the proceedings were reinvigorated and re-agitated by an Initiating Application filed by the husband on 14 April 2011.  That application related to the husband’s desire to take the children on a trip overseas.  His application in that respect was opposed by the wife.  Ultimately, in contested proceedings before Dawe J on 19 May 2011, he was successful. 

3. The wife though raised further proceedings between the parties in a Response filed by her on 11 May 2011 to the husband’s aforesaid Initiating Application.  Apart from seeking to dismiss the husband’s application, she sought a raft of orders in relation to children’s issues.  Those children’s issues were only brought to a conclusion today when, after a number of submissions made by each of the parties and some discussions held between them, they agreed to some consent orders in final form. 

4. The husband though responded to that Response filed by the wife by filing with the Court an Application in a Case on 5 August 2011 in which he raised again issues of property settlement.  The matters of a property nature raised by him in that Application in a Case related to some luxury cut-crystals, some charm bracelets (which each contended to be for or owned by the children) and a further plea that the final property orders made by the Full Court on 25 September 2006 be set aside and that the Appeal be re-heard.

5. After a period of some time, the husband understood that his application brought to the Court was in an improper form and ultimately on 31 October 2011, he filed a Reply which raised the issues in a proper format and indeed pleaded them in a format which was appropriate for the Court to consider.  In paragraph 6 of that document he sought an order pursuant to section 79A that the property orders made by the Full Court on 25 September 2006 be set aside.

6. Prior to the filing of that Reply by the husband there were though a number of hearings before the Court and a number of documents were filed by the parties, including various Applications in a Case, Responses to Applications in a Case and affidavits.  It is my reading of the materials, and indeed accepted by Mr Berman SC, that the issues raised as between the parties were in effect 20 per cent of the time devoted to children’s issues and 80 per cent to property issues.  It is thus inappropriate, in my view, to make any orders as against either party, but particularly on the application of the wife as against the husband, for costs in relation to those children’s issues which were agitated until today when final resolution was achieved by agreement.

7. The property issue though is a very different matter.  The various applications of the husband in relation to those property matters were ill-founded in a number of respects. He quite appropriately acknowledged, but only after orders made by the Court, that the orders that he had sought in his Application in a Case on 5 August 2011 were improper both as to the form in which they were brought before the Court and as to the substance of the orders that he was seeking.  He then endeavoured to address the situation by filing a Response to an Application in a Case on 23 September 2011 on which there was also handwritten the word “Reply” and for the first time then raised his application pursuant to section 79A.

8. Again, the husband subsequently acknowledged that such a document was not in the proper form and hence the reason why he filed ultimately the Reply document on 31 October 2011.  I am thus satisfied that the property issues in agitation between the parties emerged as a consequence of the Application in a Case filed by the husband on 5 August 2011 and have required the wife’s attention since that date.  It has required Responses in various forms to be filed by her through her solicitors and required the attendance of Counsel on a number of occasions to deal with those issues that were raised in relation to property matters.

9. The wife now makes an application for costs in relation to all events which have occurred since the filing of that Application in a Case by the husband on 5 August 2011.  I have been provided today with a schedule of fees to 25 November 2011, the last entry on that document at page 2 being acknowledged by Mr Berman SC as being an inaccurate entry when reference is made to 29 November 2011.  The totality of the costs raised in that document are as to an amount of $8,249.45. 

10. Mr Berman SC of Counsel for the wife indicated that it was his instructions that the wife was prepared to accept 80 per cent of that amount in full satisfaction of any entitlement she believed that she had as to costs.  However, if the matter was not concluded on that basis today then she also sought an amount of 80 per cent of the costs incurred today, which Mr Berman set at $3,080.00, being the full amount.  The husband opposes any order for costs being made against him. 

11. In making any order for costs, I have to consider section 117 of the Act.  Those factors are set out specifically in section 117(2A) of the Act, and subparagraph (a) requires me to consider:-

    the financial circumstances of each of the parties to the proceedings.

    In my view, that is not an issue of significance in the determination of the costs application of the wife.  The husband acknowledges that he is in full-time employment.  He has, in previous matters agitated before the Court, declined to file a Statement of Financial Circumstances and in the ultimate regard, the Court did not oblige him to do so.  However, given that he has acknowledged that he is in full-time employment, I am satisfied that he has the financial capacity to meet any order for costs that the Court might make.

12. Subparagraph (b) is not relevant, as it makes reference to an issue of legal aid. 

13. Subparagraph (c) requires me to consider:-

    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, admission of facts, production of documents and similar matters. 

    In this regard, the matter of particular relevance is the fact that on a number of occasions the documentation presented to the Court by the husband was inappropriate, both as to the pleading of the issues and as to the documents filed.  That thus is a matter of relevance for my consideration.

14. Subparagraph (d) requires me to consider:-

    whether the proceedings are necessitated by the failure of a party to the proceedings to comply with previous orders of the Court. 

    That is not a matter of relevance for my consideration today. 

15. Subparagraph (e) is the subparagraph of greatest relevance and it requires me to consider:-

    whether any party to the proceedings has been wholly unsuccessful in the proceedings. 

    The husband has not been wholly unsuccessful in that the children’s issues agitated between the parties resulted in some different orders being made from those made by Mushin J at the conclusion of contested trial proceedings on 6 March 2006.  Ultimately, the parties were able to agree on a variation of those orders.  Thus, on the estimate provided by Mr Berman SC, with which I agree, the proceedings that attracted the concentration of the parties at recent times and certainly today in large part were those devoted to property issues.  On the husband’s own admission and on his quite proper concession that his application in respect of property issues ought to be dismissed, it is quite clear that he has been wholly unsuccessful in that part of the proceedings.

16. Subparagraph (f) requires me to consider:-

    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.  

    If there were any such offers passing between the parties, they are not matters upon which either of them has asked me to rely today. 

17. Subparagraph (g) requires me to consider:-

    such other matters as the Court considers relevant.

18. Thus, on an analysis of the provisions of section 117, in my view it is quite clear that it is appropriate to make an order that the husband pay a portion of the wife’s costs in these proceedings.  It is difficult for me to make a particularly accurate estimate of the amount of material and time that was devoted to the children’s issues, but I do note that there was, among other things, a section 11F conference and a report subsequently provided on 10 October 2011.  In my view then, being somewhat uncomfortable with the estimate of the amount of time devoted to children’s issues, I believe a more proper reflection of the division of

resources and application of time to the two issues would be approximately 70 per cent of time devoted to property issues and 30 per cent to children.

I certify that the preceding eighteen (18) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 18 January 2012.

Associate: 

Date: