Rowlands and Rowlands

[2017] FCCA 683

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWLANDS & ROWLANDS [2017] FCCA 683

Catchwords:
FAMILY LAW – Costs where costs thrown away by reason of a late retraction of an objection to the issue of a subpoena – costs thrown away occasioned by an adjournment caused by a request for file further affidavits – disparity in financial circumstances.

Legislation:

Family Law Act 1975, s.117(2A)

Applicant: MS ROWLANDS

Respondent: MR ROWLANDS

File Number: MLC 4425 of 2015

Judgment of: Judge McNab

Hearing date: 10 February 2017

Date of Last Submission: 14 March 2017

Delivered at: Melbourne

Delivered on: 6 April 2017

REPRESENTATION

Counsel for the Applicant: Mr R Hoult

Solicitors for the Applicant: CBD Family Lawyers

Counsel for the Respondent: Mr P Indovino

Solicitors for the Respondent: Lennon Mazzeo Lawyers

ORDERS

1. The wife pay the husband’s costs in respect of costs reserved on 16 August 2016 and 19 August 2016 fixed in the sum of $7,500.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4425 of 2015

MS ROWLANDS

Applicant

And

MR ROWLANDS

Respondent

REASONS FOR JUDGMENT

1. The Court made final orders that included an order that any submission regarding costs be delivered by 10 March 2017. The respondent husband filed submissions on 3 March 2017 and the applicant wife filed responsive submissions on 14 March 2017.

2. The applicant seeks costs in respect of two court events at which costs were reserved. The first concerned the costs associated with dealing with an objection by the applicant to the issue of a subpoena which was listed for hearing before the Court on 16 August 2016. The subpoena was directed to the (omitted) Medical Clinic to produce medical records held by and in relation to the applicant. It was submitted that the records were relevant to the issue in the case regarding the applicant’s drug and alcohol intake.

3. The applicant objected to the issue of the subpoena on the grounds that it was fishing and was “highly personal in nature.”

4. The matter was listed on 16 August 2016 for determination of the objection to the issue of the subpoena. On that day, counsel for the applicant withdrew the objection to the issue of the subpoena and costs were reserved. The respondent seeks costs of that day fixed pursuant to scale items 3, 12 and 13(c) in the sum of $3,242.

5. The respondent also seeks costs in relation to costs reserved by orders of the Court made on 19 August 2016. By paragraph 8 of orders of that day, the Court made orders that the husband’s legal expenses be reserved. I am advised by the submissions made on behalf of the respondent that the matter was called on for final hearing before Baker J on 18 August 2016 however her Honour was part heard on the first day of the trial. On the second day that the matter had been listed for trial, 19 August 2016, counsel for the wife advised the Court that further affidavits were intended to be relied upon by the wife.

6. On 19 August 2016, the Court made orders for the filing of further affidavits that were intended to be relied upon by the wife with orders being made for the husband to file and serve any further affidavits that he intended to rely upon. The Court also made orders in relation to the children spending time with the father pending final hearing and for the parties to engage the family consultant Dr J to prepare an updated family report, and for Dr J to inspect documents from the (omitted) Medical Clinic.

7. The respondent seeks costs of counsel’s fees for each of the 18 and 19 August 2016 in the sum of $3,243 per day ($6,486 total) and solicitor’s costs on scale. A matter of significance is that counsel for the husband advised the trial judge on 19 August 2016 that the matter was ready to proceed from the husband’s point of view.

8. In relation to the costs sought on 16 August 2016, the matter was one of some complexity involving property and children’s matters and the fact that matters personal to the applicant, in particular the therapeutic relationship she had with her treating medical practitioners, may have naturally led the applicant to resist the issue of the subpoena in relation to those records. However there is no proper legal basis for the objection and I find that the documents that were sought were relevant and relied upon by the family consultant, and referred to at length by her in the preparation of her report to the court.

9. I am of the view that there was no reasonable basis to the objection of the production of documents or to the issue of the subpoena and the costs of $3,242 are effectively thrown away by the conduct of the wife.

10. In relation to the costs occasioned by the adjournment of the proceedings on 19 August 2016, in my view where the judge before whom the case was listed was part heard in another matter on 18 August, it is not appropriate that any costs thrown away by reason of an adjournment should include 18 August 2016. However, it does seem that in circumstances where the husband was in a position to proceed with the hearing of the matter on 19 August 2016 and the adjournment was wholly by reason of the application of the wife to file further affidavit material (which she subsequently did not do), in my view the costs of the day (19 August 2016) should be borne by the applicant subject to there being a reduction in the total quantum of costs taking into account the financial circumstances of the parties and the conduct of the litigation generally.

11. In making an order I have regard to the considerations relevant to the exercise of discretion as set out in section 117(2A) of the Family Law Act 1975. In relation to the financial circumstances of each of the parties I note that the wife is in a significantly less comfortable position than the husband. The wife’s income was approximately $30,000 (not including government allowances and child-support), which is less than the husbands income of about $114,000. The wife received 37.5% of the asset pool which is substantially less the husband. At the time that judgment was delivered, the wife had savings of about $40,000.

12. Neither party is in receipt of legal aid.

13. I have already noted above that the conduct of the applicant wife has brought about the throwing away of costs. In my view, the costs which have been thrown away on 16 and 19 August 2016 could have been avoided and were brought about by the conduct of the applicant wife alone. The orders of 19 August 2016 were necessitated by a failure of the wife to comply with previous orders of the court to ensure that all affidavits to be relied upon at trial were filed prior to trial.

14. I have taken into account that this was complex and difficult litigation where both parties were under pressure. To order full costs against the wife may result in further financial pressure on her which cannot assist in allowing the parties to move forward in the best interests of their children. Taking into account the disparity in financial circumstances between the wife and the husband, I order that the wife pay the husband’s costs in respect of costs reserved on 16 August 2016 and 19 August 2016 fixed in the sum of $7,500.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 6 April 2016