Rickard and Griffin

[2011] FamCA 43

FAMILY COURT OF AUSTRALIA

RICKARD & GRIFFIN [2011] FamCA 43

FAMILY LAW – COSTS – Applications of husband and wife dismissed

Family Law Act 1975 (Cth)

Cachia v Hanes (1994) 179 CLR 404
Casley v Casely (Costs) [2010] FamCAFC 189

APPLICANT: Mr Rickard

RESPONDENT: Ms Griffin

FILE NUMBER: MLF 2650 of 2006

DATE DELIVERED: 8 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

SUBMISSIONS RECEIVED FROM

THE APPLICANT: IN PERSON

SOLICITOR FOR THE RESPONDENT: HOGG AND REID

Orders

1. That the application of the husband by way of written submission for costs is dismissed.

2. That the application by the wife for the costs arising out of the orders of 24 December 2010 and 24 November 2008 are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Rickard & Griffin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2650  of 2006

MR RICKARD

Applicant

And

MS GRIFFIN

Respondent

REASONS FOR COSTS JUDGMENT

1. On 24 December 2010, I made orders relating to the completion of property proceedings between the parties and that any application for costs including extant orders for reserved costs be completed by written submission. 

2. The wife sought costs supported by a submission.  The husband responded asking for an indulgence because of an illness of his father.  I have given that indulgence.

3. I have read the submissions of both parties.

4. The wife sought specific costs relating to hearings on 29 January 2009, 14 April 2009 and 24 November 2008.

5. In respect of the hearing on 20 December 2010, she sought further costs relating to the hearing itself.

6. The husband responded indicating there was no basis for an order for costs to be made against him.  However in paragraph 79 of his response submission he sought an order in the following terms:

   The respondent pay one half of costs relevant to the preparation, delivery of no less than three (3) partially completed copies of divorce proceeding documents, preparation and filing of those documents at Dandenong and attendance by the applicant in person at that divorce hearing and with that one half determined by the application to be $600 and,

   The respondent pay costs incurred by the applicant in engaging a lawyers (since dismissed) and listed as acting in early proceedings and with such costs being $26985 (sic) and,

   The applicant’s reasonable costs incurred in preparation and filing of documents, research, court attendances as a (self-employed) self-represented litigant and with those costs assessed at $40 per hour and totalling $6880 and,

   The applicant’s reasonable costs incurred in preparation for sale of the family home, secure storage of chattels and delivery of chattels to the respondent and with those costs assessed as totalling $3460.

7. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) requires that each party pay their own costs unless the Court is satisfied that there are circumstances that justify a departure from that rule in which case, as part of the consideration for making an order for costs, the Court shall take into account the matters set out in s 117(2A) of the Act.

8. In each case, the party seeking costs needs to satisfy the Court that there are circumstances that justify a departure from the principle to which I have referred.  I shall deal first with the husband’s application for costs.  There is no legal basis as a self-represented party to claim costs for work done except for work done by a lawyer (see Casley v Casely (Costs) [2010] FamCAFC 189 and Cachia v Hanes (1994) 179 CLR 404).

9. There is no evidence nor is there any submission that justifies the second of the four claims set out in paragraph 6 above. No evidence was presented in affidavit form or otherwise nor was any reserved costs order pointed to, that would enable me to say that the justification referred to in s 117 of the Act has been met.

10. The third of the four claims fails for the same reason as the first.

11. The fourth of the four claims is not a costs application but relates to the question of money spent associated with the family home.  That was a matter properly dealt with in the property proceedings, the jurisdiction for which is now exhausted.

12. There is no basis therefore to make any order in favour of the husband.

13. I then turn to the application by the wife.  The first hearing for which costs are sought was on 27 January 2009.  Dessau J determined that the wife’s costs which were “to be taxed” should be paid by the husband from his share of property proceedings.  No order was drawn to my attention either at the hearing in December 2010 nor in the submissions to suggest that the taxation has occurred.  The evidence presented attached to the submission of the wife was that her costs had been itemised and sent to the husband.  No indication was given that the costs have been taxed by the Court.  Accordingly, if that exercise is still outstanding, it is not a basis for me to deal with it in this judgment.

14. The second order relates to a hearing on 14 April 2009.  The parties were before Bell J on that day.  In respect of costs, his Honour made the following order:

    The father pay the mother’s costs of and incidental to today’s hearing as agreed or assessed.

15. No evidence was presented as to any agreement or assessment and accordingly, there is no basis for me to consider that claim further.

16. The third day relates to 24 November 2008 albeit that was the first in time.  That hearing was before Dessau J.  Her Honour noted that there was no appearance for the husband.  Her husband reserved the costs of the wife thrown away that day. 

17. The wife submitted:

    The proceedings commenced in October 2006, the history of the litigation being well known to the Court.  Since October 2006 in total the wife has incurred solicitor/client costs in excess of $100,000.

    The vast majority of the Family Court appearances (totalling in excess of 20) are attributable totally to the actions, omissions and criminal proceedings of [the husband].   

18. Notwithstanding the assertions in the submission, Dessau J said the following:

    26.Today the father is not at court.  One option for me was to hear the case unopposed.  That would no doubt be the mother’s preference, as she is here and has been ready to go ahead.  I must balance fairness to both parties.  It would be fair to her for the case to proceed.  In my view, it would not be fair to the father.  I say that, despite the fact that he should have appeared, but did not.  I say that because the professional evidence received only at the end of last week discloses a man who is very unwell; who, without the assistance of legal representation, is genuinely not well-placed to exercise judgment or properly represent his interests today.

    27.The father has written that he will not seek help.  Dr K and Mr L are obviously very keen that he do so.  It is impossible not to share that view.  I want to emphasise that the case cannot again be adjourned on this basis.  If the father again fails to appear, or if in appearing he has not done anything to seek the help advised by the experts, fairness would need to weigh in favour of the mother’s argument for the case to go ahead.

    28.The next available date to hear the case is 30 March 2009, for four days.  I propose adjourning the existing applications until then in order to secure that date. 

    …

    30.So far as the property issues are concerned, Mr Whitchurch for the mother has made an application on his client's behalf for at least a partial property settlement today, to cover either the outstanding child support and $20,000 in legal fees currently outstanding, or at least for the $20,000.  I am sympathetic to the wife's predicament in having this case adjourned today.  That said, there are so many uncertain circumstances as to what will need to be addressed in the property case that at this stage I am not going to make any interim orders.

    …

    32.The mother’s costs thrown away today shall be reserved.

19. It will be clear from the reasons to which I have just referred that Dessau J had some concerns about the absence of the husband and whether it was appropriate to proceed. For his part, the husband in his written submissions before me said that he was at court on 24 November 2008 and that that could be established if the relative video surveillance and security logs were checked. He said he was waiting for a video link in another court room. It is not at all clear whether the wife knew of his presence. The wife’s submission does not address that issue. Having regard to the material available to me to determine the matter, I could not find that there were circumstances justifying the departure from s 117 in respect of that day.

20. The final matter related to the hearing on 20 December 2010. The wife sought her counsel’s fees, the attendance of her solicitor to instruct counsel and the relevant preparation for trial. There were also attendances upon the husband’s superannuation trustee. The costs sought totalled $6579.30 determined according to the schedule attached to the Family Law Rules 2004.

21. The submission of the wife said that there were circumstances to justify the departure from the s 117 principle based on the two matters to which I earlier referred. None of those matters addresses the issue of the justification for an order save that the submission read:

    [The husband] sought orders which were clearly unjust and inequitable and thus unreasonable.  Refer to reasons paragraph 9.

22. In paragraph 9 of the reasons for judgment, I said:

    9.The orders he sought were that:

    (a)$120,000 together with accrued interest from the monies held by Moores Legal be paid to him;

    (b)33% of any death benefit the wife may receive from her mother’s estate be paid to him;

    (c)The “flagging” order on his superannuation be lifted and any interest lost as a result of that order be paid from the wife’s superannuation to his fund; and

    The wife have 0% of his superannuation;

    The husband did not pursue the “death benefit” proposal.

23. The wife sought orders which I explained at paragraphs 11, 12 and 13 of the reasons for judgment as follows:

    11.The orders the wife initially sought were that:

    (a)the trust funds from the sale of the home be paid to her;

    (b)the “cash portion” of the husband’s superannuation be paid to the wife “representing lump sum child support and arrears of child support”; and

    (c)otherwise, each keep what they had.

    12.Counsel for the wife conceded there were difficulties with the order relating to the superannuation cash component proposal. That was not pursued.

    13.The specific amended orders relating to superannuation sought by the wife were that:

    (a)a base amount of $137,737.95 be allocated to the wife out of the husband’s superannuation;

    (b)an injunction preventing the husband from effecting a death benefit nomination or from receiving his superannuation until the wife’s entitlements were satisfied.

24. In this case there was no dispute about the pool of assets. I assessed the contributions as favouring the wife. In dealing with the matters required under s 75(2) of the Act I found there was a justification for a further adjustment. Those assessments related to the non-superannuation assets. The superannuation assets were treated differently and I found the contributions were equal but that there was no justification for a further adjustment because of s 75(2) of the Act.

25. When one compares their respective applications for orders to the ultimate result, neither party achieved what they pursued.  I conclude in this case therefore that there was a contentious issue to be tried. 

26. Notwithstanding the complaints of the wife about the numerous hearings, the delays in the adjournments, she pursued an order specifically in relation to the property matter because the children’s issues had been earlier resolved.  I would not be prepared to take into account much of what had gone on relating to those issues when I had nothing to do with those hearings despite the orders for reserved costs were made to which I have already referred.  I have no indication as to the basis for those orders other than the general assertion of the wife.

27. In the circumstances, there is no basis for me to consider any matters further as there does not seem to be any justifying factor in this case relating to the hearing in December that would warrant an order for costs being made. 

I certify that the preceding Twenty Seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 February 2011.

Associate: 

Date:  8 February 2011