Roland & Roland
[2022] FedCFamC1F 153
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Roland & Roland [2022] FedCFamC1F 153
File number(s): MLC 765 of 2020 Judgment of: BENNETT J Date of judgment: 4 February 2022 Catchwords: FAMILY LAW – COSTS – husband’s application for costs- where circumstances do not justify an application for costs. Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 4 February 2022 Place: Melbourne (heard via MS Teams) Counsel for the Applicant: Mr Barrett Solicitor for the Applicant: Coote Family Lawyers Counsel for the Respondent: Litigant in person ORDERS
MLC 765 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ROLAND
Applicant
AND: MS ROLAND
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Pursuant to Rule 3.1 of the Federal Circuit and Family Court of Australia Rules (2021) (“the Rules”) I relieve the parties from compliance with the Rules so that this matter may proceed with undue formality, without the need for applications in writing, and by an application and response made orally.
2.The wife’s address for service be noted in the records of the Court as being J Street, Suburb K, 3141 pending filing and service of any Notice of Address for Service to the contrary.
THE COURT ORDERS BY CONSENT THAT:
3.The parties forthwith do all acts and things required to instruct R Lawyers to release to each of the parties the sum of $100,000 from those funds held on Trust following the settlement of B Street, Suburb C, with such sums to be categorised as part-property distributions.
4.In the event that the wife refuses to comply with paragraph 3 of this Order, a Registrar of this Court may be authorised pursuant to section 106A of the Family Law Act 1975 to execute the documents on the wife's behalf, and an affidavit from the husband's solicitors deposing to the wife's non-compliance shall constitute sufficient evidence of the wife's non-compliance.
IT IS FURTHER ORDERED THAT:
5.There be no order as to costs.
6.The husband’s solicitors be responsible for service of a sealed copy of this Order on R Lawyers as soon as practicable and the wife, for her part, notify R Lawyers by telephone immediately that she has today consented to the release of $100,000 to each of the husband and the wife and that orders have been made to that effect.
IT IS DIRECTED THAT:
7.The correspondence from Mr Q dated 8 December 2021 in relation to the lease renewal be marked Exhibit “C6” and remain on the Court file.
8.The letter from the practitioners for the husband to Macgregor Solicitors dated 10 December 2021 be marked Exhibit “C7” and remain on the Court file.
9.The notice to vacate be marked Exhibit “C8” and remain on the Court file.
10.The Settlement Statement in relation to the sale of B Street, Suburb C, Victoria be marked Exhibit “C8” and remain on the Court file.
AND IT IS NOTED that the wife acknowledged this day that she is responsible for rent for the property at J Street Suburb K from 19 January 2022.
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 Roland & Roland is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J:
This was a matter which I heard in September 2021 and in respect of which I have reserved my decision. I have indicated to the parties today that I will endeavour to deliver my decision by 14 February 2022 but I have not listed it the matter for judgement on that day at this stage. The principle asset with which these financial proceedings were concerned is the former matrimonial home at B Street, Suburb C. It was sold subsequent to the hearing before me and settlement was effected immediately prior to Christmas.
The husband has proposed that each party receive $100,000 on account of their entitlement by way of part property settlement and the wife has indicated that she has no difficulty with that so I have made orders in those terms. Just in case there is a change of mind, however, there will also be an order that requires a Registrar to step in and sign any documents which are necessary to give effect to that distribution in the event that the wife fails or neglects to do so. So the substantive matter is really resolved between the parties. What remains for decision is the wife’s liability for costs.
The husband makes an application that the wife pay his costs fixed in the sum of, $2475. That is calculated at about two and a-half hours of Mr Barrett’s time yesterday and the hearing today and some other time spent. The wife has indicated that she cannot afford to pay the costs sought from her. The court’s power in relation to costs is essentially set out in section 117 of the Family Law Act 1975 (Cth). The starting point is that each party ought pay their own unless there are circumstances by which I am satisfied that there should be an order for costs, that is, that one pay the costs of another.
That is the first hurdle in any costs application. Looking at the circumstances by which a costs order is sought by the husband it is put on his behalf that he has obtained a result which he effectively sought in correspondence passing between the parties’ practitioners on 10 December 2022, being a letter from the husband’s solicitor’s to the wife’s solicitors. That is Exhibit C7 in these proceedings. It is correct to say in that the husband indicated that he proposed that $100,000 be released to each of the parties by way of part property settlement.
The husband did not say that, if the wife did not agree, he would make an application for orders in those terms and seek costs of that application. The next significant correspondence which is now in evidence was a letter to my Associate on 1 February 2022 in which it was sought that this matter be listed before me for submissions or an application to be made. The relevant paragraphs are:
We write to request the court’s assistance in circumstances where the wife is not agreeing to the release of any of the net proceeds currently held on trust for the parties following the sale of the former matrimonial home, which settled on 22 December 2021.
Our client has suggested a nominal property settlement amount to each of the parties pending the release of her Honour’s judgement (sic). Our client’s main concern is that if the wife may not be in a position to renew her now expired tenancy agreement, which could result in further interim issues to be determined by her Honour.
Would her Honour be minded to indulge the parties with a brief Mention of this matter to allow submissions regarding a release of those net sale proceeds currently held on trust for the parties? Alternatively, our office could prepare an Application in a Proceeding.
That was the last correspondence of which I am aware passing between the solicitors for the husband and the wife acting on her own behalf to an email address.
In all of the circumstances of the case I am not satisfied that there are circumstances which justify a costs order being made in this case or for the amount sought. If I am wrong in that respect, the matters which I would be required to consider as to what if any costs order ought be made appear in s 117(3) and give primacy to are the financial situations of both parties.
The husband has obtained relief today by agreement which is consistent with the correspondence he previously sent. However, none of the correspondence notified the wife that she would be at risk in relation to costs. If I am wrong in my assessment that there are no circumstances which justify an order for costs being made in this instance. My consideration of the matters that I am required to take into account pursuant to the balance of section 117 in my view do not justify any order being made in any event.
The wife has indicated that she accepts that from 19 January 2022 she is responsible for the rent associated with that property. That is an expense of some $3465 per month or thereabouts.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 4 February 2022. Associate:
Dated: 16 March 2022
0
0