RENNIE & RENNIE

[2014] FamCA 650

FAMILY COURT OF AUSTRALIA

RENNIE & RENNIE [2014] FamCA 650

FAMILY LAW – leave to grant an oral application – costs

APPLICANT: Mr Rennie

RESPONDENT: Ms Rennie

INTERVENOR:

FILE NUMBER: MLC 1428 of 2014

DATE DELIVERED: 5 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: 5 August 2014

JUDGMENT OF: Bennett J

HEARING DATE: 5 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Carter

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

IT IS ORDERED THAT

1.Leave is granted to the wife to make an oral application to amend her response filed 29 July 2014 to include an order that the injunction contained in paragraph 4 of the Order made on 3 June 2014 be and is hereby discharged.

2.I dismiss the husband’s Initiating Application filed on 24 June 2014 (stamped on 25 June 2014).

3.The husband pay the wife’s costs of and incidental to these proceedings from 4 June 2014 to date. In default of an agreement as to the quantum of those costs, which agreement be confirmed in writing by not later than Monday 1 September 2014, the costs be as assessed by a Registrar and for that purpose:-

a)      the wife file and serve her itemised bill of costs with the Court; and

b)     within 28 days of service upon the husband of the wife’s itemised bill of costs the husband file and serve a Notice Disputing Costs;

and the Registrar of this Registry of the Court advise the parties of the manner in which the matter will proceed from thereon.

AND IT IS NOTED that the effect of this Order is that monies currently held by Kennedy Partners in the sum of approximately $40,000 be released to the wife in partial satisfaction of the $137,104 owing to her pursuant to paragraph 2 of the Order made by the Honourable Justice Cronin on 3 June 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rennie & Rennie 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 MELBOURNE

FILE NUMBER: MLC 1428  of 2014

Mr Rennie

Applicant

And

Ms Rennie

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me in the judicial duty list and counsel for the wife asks me to determine the husband’s application filed 24 June 2014 and the wife’s response filed on 29 June 2014. I have pronounced orders in the matter and indicated that I would dictate my reasons for judgment after I have disposed of other matters in the duty list. These are those reasons.

2. Ms Carter appears for the wife. Ms Carter was instructed throughout the hearing by a solicitor. The wife attended court.

3. There was no appearance by or on behalf of the applicant husband. That is:-

   a)No appearance was entered on his behalf before court commenced at 10.00 a.m. today when all persons (and practitioners) having a matter listed in the Judicial Duty List were directed to enter their appearance;

   b)There was no response when my court officer called the husband, by name, from the door of the court at 11.40 a.m.

4. Additionally, counsel for the wife informed me that no correspondence had been received explaining the husband’s non-appearance although, as will become apparent, the wife was not at all surprised by his absence.

5. I asked for enquiries to be made as to whether the husband had lodged a request to attend by electronic communication which had not reached the court file. I was informed that he had not done so although such a request had been filed in anticipation of the last hearing on 3 June 2014. I was informed that last Friday (31 June 2014) the husband left a message on the Case Co-ordinator’s voicemail asking about the listing of this application. The Case Co-ordinator returned the husband’s call yesterday and confirmed that Mr Rennie knew of the date and time that the matter was listed in the Judicial Duty List at 10.00 a.m. today. He gave no indication that he was not able to attend, nor did he make any request to appear by telephone.

6. Without objection by the wife, I directed that my court officer place a call to the mobile telephone number which appears on the husband’s request to attend by electronic communication filed on 2 June 2014, that is, ... On two occasions, that service went to voice mail. I asked that it be called a third time and the message be put on loud speaker. Again there was no answer and the recorded message was, as before, “If you want to leave a message you know how to do it.”

7. Counsel for the wife confirmed that she had no other telephone number for the husband.

8. On 25 June 2014 Pearce Webster Dugdales filed a Notice of Address for Service on behalf of the husband. On 30 July 2014 that firm filed a Notice of Ceasing to Act. It provided the same telephone number for the husband as the mobile service which my court officer called. Item 4 of that form reads:-

   The next time this case is listed before the Court is on 5/08/2014 at 10.00 AM”

9. I am satisfied that the husband has been accorded procedural fairness of today’s hearing which is, after all, the return date of his own application.

History

1. Much of the history of this matter is rehearsed in the reasons for decision delivered by Cronin J 3 June 2014. I have regard to those reasons. Save where indicated, I adopt that history as accurate.

2. On 3 June 2014, Cronin J ordered, inter alia, that:-

   (2)      That [Mr Bishop] as the executor of the estate of the late [Ms Bishop] pay to Kennedy Partners as the solicitors for Ms Rennie from the entitlement of [Mr Rennie], the sum of $137,104.

   (3)      That Kennedy Partners as the solicitors for the applicant be restrained from distributing the proceeds referred to above until 4.00pm on 24 June 2014.

   (4)      That if the husband [Mr Rennie] files an application supported by affidavit prior to 4.00pm on 24 June 2014 seeking to:

   (a)      set aside these orders; and

   (b)      set out why the applicant is not entitled to those funds,

   the injunction to Kennedy Partners to hold the funds in trust is extended until further order.

   (5)      If the husband fails to comply with the foregoing order to file an application to set aside these orders, as set out, the injunction is automatically discharged and Kennedy Partners may thereafter distribute the proceeds accordingly.

3. The husband was represented by a solicitor from Pearce Webster Dugdales when the above Order was made.

4. Cronin J’s order has not been varied or set aside although that is what the husband now seeks to do. The husband has not filed a Notice of Appeal against the Order made on 3 June 2014.

5. Subsequent to 3 June 2014, the solicitors for the estate of the husband’s late mother paid $41,000 to the wife’s solicitors. It was explained, and the wife accepts, that it was a partial payment and other monies will be disbursed as and when received into the estate. Counsel for the wife is instructed that the best estimate provided by the solicitors for the estate is that further monies may be available to be disbursed “within two or three weeks”.

6. The husband subsequently filed an initiating application. The application is stamped as if it was filed on 25 June 2014 but there is a note attached to the file copy of the application which reads “Received at Registry 3:52pm on 24 June 2014 Registrar Mestrovic accepts for filing in time.”

7. As it happened, no issue was taken by those representing the wife that the husband had filed an application and that the injunction restraining payment of the monies to the wife continued. Accordingly, the $41,000 remains in the trust account of the wife’s solicitors. However, it was not until today that the wife was aware that the husband’s application has been received by the court, and deemed filed, on 24 June 2014 instead of 25 June 2014. The effect was that it was then necessary for the wife to seek to amend the orders she sought in her response filed 29 July 2014 to include an order that the injunction in paragraph 3 of the Order made 3 June 2014 be discharged. This is because, if the husband’s application had been deemed to be filed on the date it was stamped, as one would expect, the injunction would have already expired.

8. I granted leave for the wife to amend the orders she seeks.

Husband’s application filed 24 June 2014  

1. Relevantly, the husband seeks final and interim orders as follows:-

   (1)That an extension of time within which to institute an appeal under Section 102(1) of the Child Support (Assessment) Act be granted.

   (2)That leave be granted to institute an appeal under Section 102(1) in relation to the orders made in the Family Court at Dandenong on 28 September 1995.

   […]

   (5)      The Orders of 3 June 2014 be stayed.

   (6)      The Orders of 3 June 2014 be discharged.

   (7)      Any other Orders as deemed by this Honourable Court.

   The husband recites that, assuming that he is granted leave to appeal, he would seek on appeal that the Order made 28 September 1995 be discharged or, in the alternative, the sum of $7,000 and $5,000 be deducted from the lump sum of $40,375 in paragraph 2 of the Order and that paragraph 3 of the Order be discharged.

The wife’s response

1. As indicated, by her Response filed on 29 July 2014, the wife sought that the husband’s application be dismissed and, with leave, that the injunction be dissolved so that the funds held by her solicitors could be disbursed to her. She also sought costs on an indemnity basis. By way of interim relief, the wife sought security for costs in the sum of $38,592.81 and some other orders.

Listing in the Judicial Duty List

1. Upon the husband filing his application on 24 June 2014, it was endorsed with today’s date as the Court date.

2. In paragraph 22 of Cronin J.’s reasons for decision delivered on 3 June 2014, his Honour stated:-

   If [Mr Rennie] has a cause of action or has a defence, he needs to file that application within 21 days.  That application will be listed back before me at the first available opportunity after that time.  The material in support of the application will need to justify why he has sat on his hands for at least 10 years, and certainly for the last couple of months, since he became aware that things were on the move in relation to the enforcement.

3. The husband’s application was not listed before Cronin J. today although it is listed in the Judicial Duty List where his Honour frequently sits or assists. However, his Honour’s reference to the matter being listed back before himself is merely a comment or a possibility. It was not a direction included in the Order which his Honour pronounced although it would have been easy enough to make it so. Seemingly, no special listing or allocation of this matter to Cronin J. was requested by the husband’s solicitors at the time they filed the husband’s application.

4. I am not troubled by the fact that they matter comes before me today instead of before Cronin J and that Cronin J is not available.

The legislative provisions upon which the husband relies

1. The Order of 28 September 1995 was made by Judicial Registrar Nikakis and provided, inter alia, that the husband forthwith pay to the Deputy Child Support Registrar the sum of $40,375 by way of lump sum child support to be credited against the husband’s liability for child support for the period commencing 1 July 1994 and concluding on 28 September 1997. Paragraph 3 of the said order provided that the husband forthwith pay to the wife’s costs fixed in the sum of $4,954.30. Cronin J ordered that the husband pay to the wife $137,104 which sum included the interest on the lump sum child support and costs for the last nineteen years.

2. The order made on 28 September 1995 was made by Nikakis JR in the exercise of delegated powers. Order 31B rule 26 of the Family Law Rules 1984 (now repealed) provided that an application for a review of the Judicial Registrar’s decision under the Assessment Act must be filed within one month after the decision was given or within such further time as the court allows, be set down for hearing as soon as practicable but not less than 21 days after the filing of the application and be served on the respondent and a copy sent to the Deputy Child Support Registrar. Regulation 18.08 of the Family Law Rules 2004 similarly provides that a review of an order by a Judicial Registrar is by an application which must be filed within 28 days of the Judicial Registrar’s decision. Having regard to repeal and transitional provisions in the Family Law Amendment Rules 2004 (No 2), in particular 4(2), it is the later rules of court, the Family Law Rules 2004 which apply to this case.

3. Relevantly, s 102(1) of the Child Support (Assessment) Act (“the Assessment Act”) provides that an appeal lies, with the leave of a Full Court of the Family Court, to a Full Court from a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction under this Act. This means that leave from the Full Court of this Court is a pre-condition to an appeal of an order made under the Assessment Act by the Family Court constituted other than as the Full Court. Where s 102(1) of the Assessment Act applies, the application for leave must be made to the Full Court.

4. Insofar as the husband by his application returnable in the Judicial Duty List seeks leave which can only be granted by the Full Court of this Court, his application is not properly made and should be dismissed.

Husband’s application to discharge the Order of 3 June 2014 and explanation for delay

1. The second limb to the husband’s application is that he seeks to stay and to discharge the order made by Cronin J on 3 June 2014. Whilst it is not clear to me what jurisdiction he relies upon, something of this nature appears to have been contemplated by his Honour at paragraph 22 of his reasons for decision (extracted above) and paragraph 4 of the Order which referred prospectively to the husband’s application “to set aside these orders and set out why the applicant is not entitled to [the $137,104]”.

2. Notably, his Honour has already made an order for payment of $137,104. It seems to me that the only latitude that may now be extended is in relation to the enforcement of the husband’s liability to pay that sum.

3. I will consider the husband’s explanation for delay and the prejudice to the husband and the wife of continuing or dissolving the injunction pursuant to which the wife’s lawyers are not permitted to pay funds out to the wife or on her behalf.

4. The starting point for any explanation about the husband’s delay is the date upon which he had notice of the Order.

5. I am satisfied that the husband had was accorded procedural fairness in relation to the hearing before the Judicial Registrar in September 1995. Cronin J makes the following observation in his reasons for decision on 3 June 2014:-

   […]     I have the benefit today of not only the order that the judicial registrar made but also the reason he gave for making it.  [Mr Rennie] did not attend and the reasons do not indicate how satisfied the learned judicial registrar was about service.

   2.        The judicial registrar understood that [Mr Rennie] was away working interstate.  I am entitled to presume because of the presumption of regularity that the judicial registrar was satisfied that either [Mr Rennie] knew of the application or at least was not prejudiced by it proceeding in his absence. 

   However, at page 9 of the reasons of Judicial Registrar Nikakis (28 September 1995), the Judicial Registrar says “I note that the husband has not appeared. I note that it would appear that he has endeavoured to keep his whereabouts secret from the wife. I note that the wife has been required to make application for an order for substituted service and I note the evidence before the court that satisfied me that the husband has knowledge of these proceedings. I would infer from all of those matters that the husband has endeavoured to make the conduct of these proceedings as difficult for the wife, as is possible.”

6. In the context of delay, the husband has made variable representations about his knowledge of the 1995 Order.

   c)The court file from Dandenong containing folium 1 to 17 commencing 4 April 1995 and concluding with a Notice of Address for Service filed by the husband on 12 July 2000, and signed by him personally, for “matters relating to the welfare” of the four children. The reasons for judgement dated 28 September 1995 are the last document filed and would have been the first document to be seen on the file.

   d)In a handwritten letter from the husband to the Child Support Agency dated 1 April 2004 (annexure “MJR-3” to affidavit of the wife sworn 2 May 2014), the husband refers extensively to the “Reasons for Judgement” for the 1995 Order. For instance, he says:- “Indeed the ”95” Order for Departure made by the Family Court appears to find sufficient “Reasons for Judgement” based on evidence presented by ex-wife to the court using the above project as the “common” practice of myself.”

   e)In a letter from the husband’s pro bono solicitors, Kimberley & Pilbara Lawyers dated 31 March 2014 (annexure “MJR-1” to affidavit of the wife sworn 2 May 2014) in relation to service on the husband of the 1995 Order, it was stated that “[Mr Rennie] says that he had no knowledge whatsoever of any orders being made or that he had a debt to your client. Obviously this is a critical issue.”

   f)At paragraph 3 of the husband’s affidavit sworn 24 June 2014, the husband deposes that “I did not receive notice of the Orders [made 28 September 1995] until late 1996.”

7. The husband deposes to ill health and there is correspondence from the WA Country Health Service pertaining to treatment from January to October 2013. Counsel for the wife did not object to the admissibility of the correspondence into evidence so I have regard to it. I accept that the husband received treatment for mental health issues in 2013 and I am prepared to infer that he may still be affected by mental health problems, but the evidence has no bearing on why the husband took no steps in the preceding 18 years to challenge the Order made in September 1995. I am satisfied that the husband was in receipt of mental health treatment which was directed to assisting him with life skills and day to day management of his affairs. My impression of the husband’s inactivity and failure in and around 2013 to do anything about the long standing liability to the wife is referrable to there being a lack of self interest in him doing so. I am not satisfied that the husband’s lack of activity was because he was or is incapacitated.

8. I refer to and adopt the findings and observations of Cronin J about the husband’s lack of adequate explanation for his delay.

9. I conclude that husband’s evidence in relation to delay is inconsistent and, viewed cumulatively, is unsatisfactory.

10. In relation to prejudice, I accept the submission of Ms Carter that the prejudice pertains to how the parties will be disadvantaged in the process rather than in the result.

11. In assessing the prejudice to the husband, it is instructive to look at what he has done to date with his opportunities for review.

    a)He could have reviewed the Judicial Registrar’s decision in 1995 but chose not to do so.

    b)His evidence is that he entered bankruptcy which he thought would expunge the liability but it did not do so. That was in no way a mechanism whereby the husband sought a re-determination of the Judicial Registrar’s decision on the merits.

    c)The husband was duly served with the wife’s 2014 proceedings but did not attend court on the first return date on 2 April 2014.

    d)On 2 April 2014, Macmillan J required the husband to file and serve relevant documents and a response by 30 April 2014 but the husband failed or neglected to do so. I refer to and adopt the observations of Cronin J as to the husband’s efforts to obtain legal advice and similarly conclude, as his Honour did [at 17] that there is no merit to the contention that the husband was waiting to obtain legal aid.

    e)On 3 June 2014, Mr Burke, solicitor, appeared on behalf of the husband before Cronin J and applied, unsuccessfully, for an adjournment. His Honour records [at 14] that “Mr Burke’s application for an adjournment today was on the basis that, last Friday and again yesterday, he received instructions from [Mr Rennie] who was going to send him some documents.”  Mr Burke remained at the hearing and was well aware of the outcome and the importance of the husband filing comprehensive and cogent material by the deadline of 4.00 p.m. on 24 June 2014. Documents were filed within time, in fact with 8 minutes to spare, but the evidence upon which the husband relies is not, in my view sufficient to demonstrate, as Cronin J. required, that “the applicant is not entitled to those funds”.

    f)The husband’s application filed on 24 June 2014 was allocated today as the hearing date and, very significantly, the husband has failed or neglected to appear. I am satisfied that the husband know full well that the hearing will proceed today. After all it is his application and the date and time was confirmed to him by the Registry last Friday.

1. I am mindful that the initial liability was about $40,000. The fact that it has increased to three times that amount is directly referrable to interest which has accrued for non-payment. The husband, not the wife, is responsible for the increase in the liability. For the sake of completeness, I should mention that Ms Carter made cogent submissions in relation to the alternative relief sought by the husband. He seeks that the Order made on 28 September 1995 be discharged but that, in the alternative, the sums of $5,000 and $7,000 be deducted from the $40,375 ordered to be paid by him in September 1995. I accept Ms Carter’s submission that a reading of the Judicial Registrar’s decision and the evidence of the wife in that case, should satisfy the court that those sums were proper components of the lump sum child support order made by the Judicial Registrar and that there is no basis upon which the lump sum child support award should be reduced by $7,000 and/or $5,000. However, even if the husband were to succeed on his alternative relief, the liability from 1995 would still stand at $28,375 which, with interest and all costs awarded to date, would likely still exceed the value of the husband’s entitlement in the estate of his late mother which is the only fund which the wife has been able to attach as a source of payment.

2. I accept the submission of Ms Carter to the effect that the court ought to have no confidence at all that, if the husband were to be afforded yet another opportunity to argue whether the liability of $137,104 should be enforced or otherwise, he would do so any more effectively than he has done to date.

3. Based on how the husband has comported himself to date, that is ineffectually, I am not satisfied that there is any significant prejudice to him in lifting the injunction pursuant to which the wife’s funds are withheld from her.

4. I also look at the prejudice to the wife.

5. I accept that the wife has incurred costs in the vicinity of $40,000 in these proceedings and has received no funds at all. I accept that the husband’s conduct in these proceedings in 2014 have put the wife to much greater expense than she would have incurred had he been diligent in seeking relief from the court. I accept the statement by counsel for the wife that the wife can simply not afford to continue to be represented in these proceedings.

6. Given that the value of the husband’s interest in his mother’s estate is less than the amount ordered by Cronin J to be paid by the husband to the wife, regardless of costs orders, I am satisfied that the prejudice to the wife cannot be compensated for by an award of costs.

7. I accept that the wife would have enormous difficulty in constructing a case if she was required to re-run the 1995 proceedings but it is not clear to me why or how that would eventuate in any event. 

8. I am satisfied that the wife has been innocent of delay in this case.

9. I am satisfied that there will be significant prejudice to the wife in the proceedings not being finalised today, particularly as the husband:-

   a)has failed and neglected to appear today to prosecute his own application;

   b)has not made an application to attend electronically (notwithstanding that he made an earlier application to do so);

   c)has not been contactable by telephone on the three occasions that my Court Officer called the telephone number provided to the court by his former solicitor in the Notice of Ceasing to Act.

10. In balancing the significant prejudice to the wife against the minimal prejudice that I am satisfied, realistically, will be suffered by the husband, I conclude that the benefit of re-litigating the means of enforcement of the liability determined by Cronin J. will be outweighed by the prejudice to the wife which prejudice could not be compensated by an award of costs.  

Conclusion

1. For the above reasons, I conclude that the husband’s application filed on 24 June 2014 should be dismissed.

Effect of this Order

1. This order entitles the wife’s solicitors to pay out to the wife the funds they hold pursuant to paragraph 3 of the Order made on 3 June 2014. It also means that those solicitors can pay out to the wife any further funds which they receive pursuant to paragraph 2 of Order made on 3 June 2014.  I note that further sums are thought to be two or three weeks away but, realistically, can be paid (and disbursed) at any time. Come what may, the husband has standing as a beneficiary under the estate to be informed when funds to which he is entitled are paid by the estate.

2. An appeal lies from this Order to the Full Court of this Court. A Notice of Appeal must be filed within 28 days of this Order (Rule 22.03). However, an appeal against this Order will not impact on the husband’s liability as determined  by Cronin J.

Costs

1. The wife seeks that the husband pay her costs of and incidental to these proceedings from 4 June 2014 to date calculated on an indemnity basis.

2. Section 117 of the Family Law Act1975 provides that each party to proceedings under the Act shall bear his or her own costs. The object of the rule is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose.[1]  However, the Court has a discretion to make an order for costs if it is of the opinion there are circumstances that justify that course and it would be just to do so. 

   [1]  In the Marriage of Kohn (1977) 30 FLR 175 at 177.

3. In considering whether to make an order in the exercise of my discretion, I must have regard to the matters set out in s 117(2A).

4. Section 117(2A) of the Family Law Act 1975 (“the Act”) provides:-

   (2A) 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 writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g) such other matters as the court considers relevant.

5. The weight to be attached to any of the considerations in section 117(2A) is wholly discretionary. While no single factor out-ranks any other, there is nothing to prevent one or other of them from being the sole foundation for a costs order.[2]  As Kay J observed in Brown & Brown[3] :

   In many cases there will be an outstanding feature . . . that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other s 117(2A) considerations.

   [2]  LAC and TRF and LKL [2005] Fam CA 158 at [41].

   [3] (1998) FLC 92-822 at 85,347.

6. In this case, the wife is a disability pensioner. I do not have details of the husband’s income but he describes himself as “unemployed”. The wife deposes to having incurred $40,000 in legal fees in relation to these proceedings initiated in 2014. My impression is that the financial circumstances of the parties (see s117(2A)(a)) are such that neither can afford to pay legal costs which are unnecessarily incurred.

7. The wife deposes to not having been eligible for legal assistance (see s117(2A)(b))for some years. The husband’s case before Cronin J was that he is also not eligible for legal assistance.

8. The conduct of the proceedings by the husband (see s117(2A)(c)) required the wife to expend more in legal fees than she should reasonably have been required to do. An example is the wife’s lengthy affidavit for this proceeding, sworn 28 July 2014, partially in response to the husband’s affidavit and otherwise to address the interests of justice criteria applicable to applications for an extension of time. This is a cost which did not need to be incurred, and would not have been, if the husband has made clear that he would not prosecute his application filed 24 June 2014.

9. These proceedings are wholly necessitated by the husband’s failure to comply with his obligations pursuant to orders of this court (see s117(2A)(d)). These proceedings are in the nature of enforcement proceedings. This consideration provides strong justification for the husband being responsible for, and paying, the wife’s costs. Similarly, the husband has been wholly unsuccessful in this proceeding (see s117(2A)(e)).

10. I am satisfied that there are circumstances which justify the husband paying the wife’s costs of the proceedings since 4 June 2014. I am satisfied that the husband should pay all, rather than just part, of the wife’s costs.

11. Counsel for the wife estimates her client’s costs to be approximately $14,000 calculated as follows:-

    a)Costs billed  $9,369

    b)Counsel’s fees  $2,500

    c)Instructing solicitor            $2,200

12. The above estimates are pursuant to a costs agreement. There was no estimate provided as to what the costs would be if calculated on a party/party basis in accordance with Schedule 3 to the Family Law Rules.

13. Ms Carter submitted that the proceedings were extraordinary in nature. In particular, her client has been required to incur costs pursuing the husband and he did not even bother to attend court today.

14. I am sympathetic to the wife in relation to the very large amount of costs she has incurred. It does not surprise me that they costs are in the vicinity of $40,000. However, I cannot identify particular facts and circumstances in this case which warrant the making of an order for costs other than on a party and party basis.

15. I will order that the husband pay the wife’s costs on a party/party basis and in a sum to be agreed, and if not agreed, as assessed by a Registrar of this court. As it is most unlikely that there will be any agreement, I will fix a date for the costs assessment by the Registrar.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 August 2014 ..

Associate: 

Date:  8 August 2014