S and P
[2009] FCWA 10
•14 JANUARY 2009
[2009] FCWA 10
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY COURT ACT 1997 |
| LOCATION | : [REGIONAL CENTRE] | ||
| CITATION |
| ||
| CORAM |
| ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
P
Respondent
Catchwords:
FAMILY LAW - COSTS - Circumstances justifying order - where the Applicant misled the Court - where the Respondent incurred additional costs as a result - costs mandatory under Family Court Act 1997 (WA) s237A - Discretion as to amount of costs - Applicant ordered to contribute to the Respondent's costs
Legislation:
Family Court Act 1997 s 237, s 237A
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms G Braddock SC |
| Respondent | : | Mr F Castiglione QC |
[2009] FCWA 10
Solicitors:
| Applicant | : | Joe Scurria & Associates |
| Respondent | : | Slee Anderson Pidgeon |
Case(s) referred to in judgment(s):
Duroux v Martin (1993) FLC 92-432
Evans and Bartlam [1937] AC 473
Fitzgerald v Fish (2005) 33 Fam LR 123
Gardner v Jay (1885) 29 Ch D 50
I and I (No 2) (1995) FLC 92-625
Singhdeo and Singhdeo (No. 2) [2007] FamCA 425
[2009] FCWA 10
1 I am required to determine an application for costs made by [Mr P] against
[Ms S].
2 [Mr P] seeks an order that [Ms S]“pay a proportion of [his] costs of the
proceedings, such proportion to be in the Court’s discretion expressed as either
a percentage of the costs incurred or alternatively to be fixed”.
Background
3 The background to the proceedings may be found in the substantive reasons for
judgment delivered on 13 December 2007 in proceedings under the Family Court Act
1997.4 The proceedings involved competing applications for settlement of property
following the breakdown of the parties’ lengthy de facto marriage. There was also an application by [Ms S] against [Mr P] for spousal maintenance of $500 per week from the date of separation until the date on which [Ms S] received her property settlement, less an amount of $4,600 already paid pursuant to an interim order. In response, [Mr P] sought an order for repayment of all of the maintenance he had paid to date.
5 In my reasons for decision (paragraph 73 et seq) I referred to inaccurate
testimony given by [Ms S] concerning her income and other conduct on her behalf
which I described as an “abject failure to make a full and frank disclosure”.6 The outcome of the property proceedings was that the assets were divided in
proportions 57.5% to [Ms S] and 42.5% to [Mr P]. However, after taking into account superannuation entitlements, the distribution overall involved [Ms S] receiving $627,747 and [Mr P] receiving $719,351.
7 The application for spousal maintenance was dismissed. Although I accepted
that there was foundation for [Mr P]’s discontent relating to the payments of maintenance he had made, I determined that it was inappropriate to require [Ms S] to refund the maintenance. I did so on the basis that in the absence of evidence indicating inappropriate expenditure by [Ms S] since separation, if she had not received the spousal maintenance pursuant to the interim orders, [Mr P]“would have $4,600 more assets on his side of the ledger and [Ms S] would have $4,600 less assets or increased liabilities on her side of the ledger”. The net result would have been the same.
| The law | |
| 8 | Subsection 237(1) of the Family Court Act 1997 provides that, subject to certain provisions, including s 237(2) and s 237A, each party to proceedings shall bear his or her own costs. Subsection 237(2) provides that if the Court is of the opinion there are circumstances that justify doing so, the Court may, subject to s 237(3), make such orders as to costs as it thinks just. |
9 Subsection 237(3) provides as follows:
[2009] FCWA 10
“In considering what order (if any) should be made under subsection (2),
a court must 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 a court; (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; (f) whether a party to the proceedings has made an offer in writing to another 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.”
10 Similar provisions to those set out above are contained in s 117 of the Family Law Act 1975. Whilst the authorities to which I refer below all deal with that Act, they are of equal significance in determining a costs application pursuant to s 237 of the Family Court Act 1997.
11 The Full Court of the Family Court of Australia in Collins & Collins (1985) FLC 91-603 described the discretion conferred by s 117 as being a “broad” one, and noted that the s 117(2A) factors are not to be read in a restrictive way. The Full Court in Fitzgerald v Fish (2005) 33 Fam LR 123 also made clear that any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs. Nevertheless, as an earlier Full Court said in I and I (No 2) (1995) FLC 92-625 at 82,277, the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.
12 Subsection 237(1) of the Family Court Act 1997 is expressly subject to the provisions of s 237A, which provides as follows:
“(1) This section applies if
(a) proceedings under this Act are brought before a court; and
[2009] FCWA 10
(b)
the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
(2) The court must order that party to pay some or all of the costs of
another party, or other parties, to the proceedings.”
13 In the event that I find that [Ms S] knowingly made a false allegation or
statement in the proceedings I will be obliged to make an order for her to pay some or all of [Mr P]’s costs. There is no discretion involved, although there is a discretion in determining what amount should be ordered.
14 Such a wide discretion must, of course, be exercised judicially according to the ordinary rules of justice and fairness: Duroux v Martin (1993) FLC 92-432 at 80,407. Otherwise, as Bowen L.J. said in Gardner v Jay (1885) 29 Ch D 50 at 58 (cited with approval inter alia by Lord Wright in Evans and Bartlam [1937] AC 473 at 488):
“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the judge why should the court do so?”
15 In my view, in exercising the discretion pursuant to s 237A, it would
nevertheless ordinarily be appropriate to have regard to the various factors referred to in s 237(3). In this regard I respectfully concur with the views expressed by Ryan J in Singhdeo and Singhdeo (No. 2) [2007] FamCA 425 at [15].
[Mr P]’s submissions
16 The submissions provided on behalf of [Mr P] rely principally on various
findings that I made in relation to [Ms S]’s lack of credibility. These mainly concerned the information she provided to [Mr P]’s solicitors and to the Court concerning her employment with the [DBC]. I do not propose to set out here all of the matters to which [Mr P]’s submissions refer. It is sufficient to say that they properly draw attention to the findings I made about [Ms S]’s lack of credibility, in particular in relation to the evidence she provided concerning the application for maintenance.
17 [Mr P] contends that as a result of [Ms S]’s failure to make a full and frank
disclosure of her financial position, he was put to the expense of issuing various subpoenas described in paragraph (xiii) on page 5 of the submissions. On pages 6 and 7 of the submissions [Mr P] goes on to describe additional costs he claims to have incurred as a result of the failure of [Ms S] to provide a full and frank disclosure.
18 [Mr P]’s submissions drew attention to the provisions of s 237A and specifically
noted that the false statement relied upon pursuant to that section was the claim in [Ms S]’s statement of financial circumstances sworn in November 2007 that her income was “nil” when in fact she was employed at the time. [Mr P] also relies upon evidence given at trial by [Ms S]to the effect that her investment with Home Building
[2009] FCWA 10
Society was held on trust for her mother. The relevance of that issue is that [Ms S] conceded during the course of the trial that she had been mistaken in relation to the ownership of her interest in Home Building Society.
19 Attached to [Mr P]’s submissions were tax invoices relating to the proceedings
rendered by his solicitors, including the fees of his senior counsel. These total over
$80,000.
[Ms S]’s submissions in response
20 The submissions provided on behalf of [Ms S] properly acknowledge the
findings made in relation to credibility issues in the principal judgment. It was also properly conceded that the Court might be satisfied that the statements made by [Ms S] in the early stages of the proceedings about her employment constituted knowingly making a false statement. In that event, however, it was submitted that the appropriate order should relate to the additional cost and expense, if any, shown to have resulted from [Ms S]’s conduct in giving false evidence. It was suggested that the principal expense involved would have been the issuing of subpoenas which might have been avoided by an earlier disclosure by [Ms S] of her true position.
21 It was further submitted on behalf of [Ms S] that the assets to be retained by the
parties were not “great” and that the “incidence of costs is likely to have a significant bearing upon [[Ms S]’s] financial circumstances”. It was also submitted that the “relative strengths of the parties’ financial position should be the dominant feature in considering the cost implications”.
22 The submissions concluded by noting that the documents attached to [Mr P]’s
submissions gave no indication of the actual additional costs said to have been
incurred as a result of the matters about which complaint was made.
Discussion
23 I am not able to conclude to the requisite standard that [Ms S] knowingly gave
false evidence in relation to the Home Building Society shares but I am satisfied that she knowingly gave false evidence concerning the extent of her income at the time she made her statement of financial circumstances. Before considering what consequences should follow from this finding, I turn to consider briefly the matters referred to in s 237(3).
Section 237(3)(a)
24 The financial positions of the parties were comprehensively considered in my
substantive reasons for decision. It is true that I found the outcome of the proceedings would leave both parties in a position to obtain appropriate accommodation but would be insufficient to provide them with what they reasonably hoped to have available for their retirement. However, the fact remains that both received assets of fairly substantial value.
[2009] FCWA 10
25 The husband’s income significantly exceed the wife’s income. This, however, is a factor which was taken into account to a significant extent in making the 15% adjustment in favour of [Ms S] when assessing the parties’ property settlement entitlements.
Section 237(3)(b)
26 Neither party was in receipt of legal aid.
Section 237(3)(c)
27 The conduct of [Ms S] in failing to make a full and frank disclosure of her
financial position and indeed giving false evidence is a matter of considerable
importance.Section 237(3)(d)
28 Notwithstanding the submissions made on behalf of [Mr P], I am not satisfied
that the “proceedings” were necessitated by the failure of either party to comply with
previous orders of the Court.Section 237(3)(e)
29 [Ms S] was wholly unsuccessful in relation to her application for spousal
maintenance. I accept that [Mr P] also was unsuccessful in his application for reimbursement of maintenance but I found that he had been justified in seeking some redress.
Section 237(3)(f)
30 Neither party relied upon this provision.
Section 237(3)(g)
31 I do not consider there are any matters which are relevant.
| The outcome |
32 Given my finding in relation to s 237A, I am obliged to require [Ms S] to make some contribution to [Mr P]’s costs.
33 I am satisfied that [Mr P] incurred significant increased costs in seeking to put
before the Court information to reveal the extent of [Ms S]’s failure to disclose her true financial position. He was also put to expense in opposing her application for spousal maintenance which was entirely unsuccessful. In my view [Ms S] ought to make a significant contribution towards the costs [Mr P] incurred in establishing the
[2009] FCWA 10
inaccuracy of her evidence, as well as the costs he incurred in successfully defending
her application for spousal maintenance.34 I am disinclined to put the parties to the considerable expense and delay which
would be associated with attempting to agree the quantum of costs or having them assessed. I have a broad discretion when dealing with matters of costs. In the exercise of that discretion I have determined that [Ms S] should contribute to [Mr P]’s costs in an amount of $7,500.
| Order |
35 I will make the following order:
1.
The applicant, [Ms S]shall contribute to the costs of the respondent, [Mr P], in the sum of $7,500 payable within 28 days.
I certify that the preceding [35] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
0
3
4