Rennie and Rennie (No 2)

[2016] FamCA 791

FAMILY COURT OF AUSTRALIA

RENNIE & RENNIE (NO 2) [2016] FamCA 791

FAMILY LAW – COSTS – Between parties – Whether circumstances justify a costs order – Whether the husband was wholly unsuccessful – Application dismissed.

Family Law Act 1975 (Cth) ss117(1), (2) & (2A)

APPLICANT: Ms Rennie

RESPONDENT: Mr Rennie

FILE NUMBER: BRC 1329 of 2014

DATE DELIVERED: 20 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: Submissions received
29 April and 6 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: Hopgood Ganim Lawyers

THE RESPONDENT: In Person

Orders

1. The wife’s Application for the husband to pay the wife’s costs of and incidental to the interim hearing that took place on 14 December 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rennie & Rennie (No 2) 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 BRISBANE

FILE NUMBER: BRC 1329  of 2014

Ms Rennie

Applicant

And

Mr Rennie

Respondent

REASONS FOR JUDGMENT

1. The parties in proceedings pending in this Court in which competing property adjustment orders are sought appeared before me on 14 December 2015 on which date competing interim applications each had filed, seeking various orders, were listed for hearing. The husband was represented by solicitor and Queen’s Counsel and the wife was represented by solicitor and counsel. 

2. The husband’s Application in a Case filed 15 September 2015 sought to discharge certain orders made by consent before me on 12 May 2015 that provided for the division of responsibilities within the parties’ business. It also sought the cessation of payments to the parties, from the business, for the provision of legal fees.

3. The wife’s Response to an Application in a Case filed 7 December 2015 sought orders dismissing the husband’s application and further, or in the alternative, orders in relation to payment of certain funds, the sale of three motorbikes and disclosure in respect of the business run by the husband.

4. The husband’s application was amended by a further interim application filed on 11 December 2015.  

5. My judgment was delivered on 10 February 2016 and all applications for interim orders were dismissed by me. The wife subsequently pressed an application for the husband to pay her costs of and incidental to the hearing of his interim application. I received written submissions from the solicitors for the wife on 29 April 2015 and written submissions from the husband, drawn by him not lawyers, on 6 May 2016. The husband opposed the wife’s application.

6. Before I was able to determine the costs application, long-scheduled leave began for me. I have only recently returned to work. I regret not having been able to determine the matter earlier than now.

7. In the meantime, the substantive property adjustment proceedings have been listed for trial before me over four days in late January-early February of 2017.

The Law

1. Pursuant to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) each party is to bear their own costs in proceedings under the Act unless the Court otherwise determines “there are circumstances that justify” making an order for costs (s 117(2) of the Act). If the Court does determine that there are circumstances that justify making a costs order it may make such order as to costs as it considers just.

2. In considering what costs order, if any, should be made, the Court is to have regard to a range of matters that are set out in s 117(2A) of the Act.

The Parties’ Submissions

1. In her submissions, the wife has set out those matters that are set out in s117(2A) of the Act. Separate submissions are made in respect of each s117(2A) matter considered relevant by the wife. It is submitted that the husband has been and remains in “a superior financial position to the wife”. Many matters of asserted fact are referred to in support of that submission.

2. Various aspects of the husband’s conduct, most particularly in respect of his alleged failure to disclose relevant documents in the proceedings, are also referred to.

3. Further, it is submitted that the husband’s application that I heard and determined was wholly unsuccessful, thus justifying a costs order being made against him as the wife had to incur costs to come to Court to respond to it.

4. Finally, for the wife, it is submitted that a written offer to settle this issue of costs was made to the husband and he did not respond thus leaving the wife with “little avenue but to make an application, thus incurring further costs”.

5. In response, the husband submits that his financial position is not superior to the wife’s and he puts in dispute many of the matters asserted as fact in the submissions made for the wife. He also puts in dispute the wife’s assertions that his disclosure has not met requisite standards and meets her assertion with an assertion of his own that her disclosure has failed to meet requisite standards.

6. In addition, the husband submits that my previous findings that the wife acted unilaterally withdrawing funds from the business account contrary to the existing orders that had been made by consent are indeed relevant to the determination of her costs application even though I was not persuaded by his bringing those to the Court’s attention that they justified the serious variation of the interim position that the previous orders, drawn up and agreed to by the parties themselves, put in place pending trial.

7. The husband also argued that the wife was not successful in her interim application either, making that a relevant factor.

8. Finally, he tells the Court through his written submissions that he did not receive any written offer to settle the costs dispute from the wife before he received her written submissions and the affidavit filed in support.

My Decision

1. Considering the matter over again and weighing up the competing submissions as to why I should or should not order the husband to pay the wife’s costs of the interim application, I am not persuaded that there are circumstances that justify the making of a costs order.

2. I now fully appreciate that whilst in my judgment delivered on 10 February this year I referred to, considered the merits of and dismissed the wife’s application for alternative or further interim orders of her own, that in fact at the hearing on 14 December 2015, towards the very end of the hearing, counsel for the wife informed the Court that the wife did not, that day, press for the alternative or further interim orders. Having been reminded of that fact by the solicitors for the wife in Court at the Trial Management hearing earlier this year and in their written submissions, I listened to the audio recording of the hearing made available by the transcription service and satisfied myself that the wife’s counsel had abandoned the application for orders sought by the wife in all respects save for the dismissal of the husband’s application.

3. This fact seems to be heavily relied upon in support of the submission that only the husband was wholly unsuccessful in his interim application. Simply viewed, that is correct. He sought a number of orders. On the day of the hearing the wife only sought dismissal of his application. She was successful in that and he was unsuccessful. However, the wife had sought those further or alternative orders in her Response to an Application filed on 7 December, 2016. They were not just orders in respect of the same issues raised by the husband. She filed two affidavits on the same day – 7 December. The husband then filed an Amended Application in a Case and a further affidavit a few days later, just a few days before the hearing.

4. I do not know when, if at all, the wife informed the husband before her counsel told the Court that afternoon of the hearing, that the wife did not press all those other parts of her application. It might be that the first the husband and his legal representatives knew of that was when they heard the abandonment fall from the lips of the wife’s counsel that afternoon. Accordingly, I cannot say for certain that the husband has not had some success on the day. Indeed, the wife did not press applications in which she was seeking some reasonably serious injunctive relief against the husband. He may very well have regarded that as a success that day.

5. The husband did not persuade me to make the orders he sought. However, as he has rightfully pointed out, I did make findings that the wife unilaterally transferred money from the business account when she was, by orders she joined in asking this Court to make in the first place, clearly not authorised to do so. As I said in my February judgment, that I did not grant the husband the injunctions he sought was not to be construed as “mute acceptance of prima facie contraventions of the existing orders”.  It was a very evenly balanced matter that ultimately fell the wife’s way for a variety of reasons, not the least of which was my view that it was critical to maintain the involvement and oversight of both of them in the ongoing operation of the business as each of them seeks to retain the business at the end of the substantive proceedings.

6. I have just not been persuaded that the dismissal of the husband’s application or any of the other matters referred to in the submissions of the wife justify the making of a costs order against the husband as sought by the wife. I particularly do not consider the fact that a written offer to settle this costs application was not responded to by the husband is relevant to determining the costs application relating to the previously determined interim proceedings. In any event, the husband says he did not get that offer before he got the written submissions and affidavit and I cannot determine whether that is correct or not right now.

7. I will dismiss the wife’s application for costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 20 September 2016.

Associate: 

Date:  20 September 2016