S and S - [2002] FMCAfam 151

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2002] FMCAfam 151

FAMILY LAW – Unsuccessful application for interim spousal maintenance – applicant ordered to pay costs – s.117 Family Law Act.

Applicant:

S S

Respondent:

R S

File No:

PAM875 of 2002

Delivered on:

4 April 2002

Delivered at:

Parramatta

Hearing Date:

4 April 2002

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr M Nott

Solicitors for the Applicant:

McDonnell Schroder Solicitors
DX 8101 BLACKTOWN

Solicitor Advocate for the Respondent:

Ms A Parkin

Solicitors for the Respondent:

Coleman & Greig Solicitors
DX 8226 PARRAMATTA

ORDERS

That the applicant wife pay the respondent husband’s costs of the application for spousal maintenance assessed to be $2,500.00.
That the monies payable pursuant to order 1 be paid:
(a)The sum of $1,250.00 within 28 days.
(b)The balance to be paid at the same time as orders are otherwise entered pursuant to s.79.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM875 of 2002

S S

Applicant

And

R S

Respondent

REASONS FOR JUDGMENT

The application

This is an application by S S (“the husband”) that R S (“the wife”) pay the costs incurred by him defending her application for interim spousal maintenance. Those proceedings were commenced in the Family Court. They were transferred to this court on 7 February 2002 at 4.00pm for hearing. I heard the proceedings that day. Judgment was delivered on 8 February 2002.
I incorporate into these reasons the form of order made by me on

8 February 2002:
1.That the respondent husband by way of interim spousal maintenance pay as and when they fall due all periodic payments of principle and interest due in relation to the Wizard mortgage secured on the former matrimonial home.
2.I otherwise dismiss the applicant’s application for interim spousal maintenance.
3.I note that the respondent is not required to maintain payments to ASG and O’s school fees once the applicant wife is eligible by law to claim preliminary children’s expenses and support from Mr D.
4.I give leave to the father’s and mother’s solicitors to approach to arrange a listing for the father’s application for costs.
The gravamen of the costs application is that it is alleged the applicant wife was wholly unsuccessful in the proceedings. The application made by the applicant wife sought an order that the respondent husband pay $450 per week and otherwise a mechanism for that payment. During the course of the proceedings the orders sought by her were amended in accordance with a minute of order that was made an exhibit. She sought the payment of the mortgage and an additional periodic payment.
Upon receipt of the application for interim spousal maintenance the respondent instructed his solicitors to outline to the applicant his financial position including details of his income, fixed monthly and regular monthly commitments. That information was included in a letter dated 18 February 2002 sent by the respondents solicitors to the applicants solicitors. The letter is an exhibit, exhibit A, in this cost application. From that point on the applicant was aware that the respondent resisted her application for interim spousal maintenance. And that if she pressed her interim application and was unsuccessful then the respondent would make an application that she pay his costs of this aspect of the cause.
Implicit in the letter of 18 February 2002 is a commitment by the respondent husband to the payment of the mortgage. It is clearly included as one of the fixed monthly expenses met and by inference to be met by him. The respondent during the course of the proceedings in answer to a question to his solicitor from me, agreed that an order could be entered which required him to make the mortgage instalments. His agreement was subject to his entitlement to pursue an application for payment of his costs.
The matters that the court must consider on an application for costs are those matters contained in s.117 Family Law Act 1975. The normal rule is that each party will pay their own costs. However, the court may make an order for costs if it is satisfied that in the particular circumstances of the case it should do so. When the court is looking to consider whether an order for costs should be made the court must consider those matters contained in s.117(2)A. I will deal with those matters sequentially.
Subparagraph (a) - the financial circumstances of each of the parties to the proceedings. I have already made findings in relation to the parties' financial circumstances in the interim spousal maintenance proceedings and I do not repeat them. In summary the respondent is in full time employment and earns an income far greater than the income received by the applicant. Her income is limited to the provision of child support. She otherwise receives a Department of Social Security benefit which I do not take into account for the purposes of this application. The wife has some modest savings. The application of the sub- paragraph favours the wife.
Subparagraph (b) – does not arise. Neither party is in receipt of a grant of legal aid.
Subparagraph (c) – it would seem that the applicant submits in relation to subparagraph (c) that there was in essence a lack of full and frank disclosure by the respondent husband in the proceedings. As a consequence, it is submitted, the subsection favours the applicant. With respect to the wife’s solicitors submission I do not agree. I am not satisfied that I could, or should, make a finding that there had been a lack of financial disclosure by the respondent or that he failed to give credible evidence in the interim spousal maintenance proceedings.
Subparagraph (d) – does not arise.
Subparagraph (e) – this is the nub of the argument made by both parties. Mr Nott, for the applicant wife, says that because his client has secured an order in the nature of an interim spouse maintenance order she has been, if not wholly successful then at least largely successful in the proceedings as compared to the respondent husband. This is because otherwise the proceedings which he had originally sought be dismissed, quite clearly were not dismissed. He argues an asserted advantage to his client in that she has a spousal maintenance order rather than a contribution being made by the respondent to the property of the parties. That may ultimately be a distinction without real distinction. For the purposes of these proceedings that is so.
The respondent husband says that the wife is in no better position now than she was prior to the commencement of the proceedings. I accept that that is so. The wife is receiving from the husband however, it is categorised, the same amount of money at the end of the proceedings that she was receiving from him prior to the commencement. Is there, I ask myself, any material advantage in the fact that the arrangement for the payment of the mortgage is made pursuant to an order with the security that flows from it as compared to a voluntary payment.
Ultimately I am satisfied in the circumstances of this case that there is not. Primarily this is because the mortgage has been paid since separation on a continuing basis by the respondent. There have been arguments between the parties about the level of support the wife received from the husband during which he has made remarks to her that are objectively offensive. The evidence did not satisfy me, however, and would have ultimately flown in the face of the clear implication of the letter of 18 February 2002 that the respondent was planning to stop making the mortgage payments. The consistent course of conduct was that the mortgage was paid on a continuing basis and in those circumstances the wife has not achieved a material advantage as a consequence of the proceedings. On balance the subsection favours the husband as compared to the wife.
Subsection (f) – is relevant to the extent that the respondent husband conceded that he would agree an order could be entered providing for the payment of the mortgage.
Subsection (g) – Mr Nott made submissions in relation to the subsection but with respect to him I don't accept those submissions.
I am satisfied on balance that there should be an order for costs in favour of the husband. He has been, as compared to the wife, materially successful in the proceedings. The wife by comparison has not achieved an outcome that changes her financial position in any material way. She was on notice from 18 February 2002 of the possible consequences if she pressed on with the application and nonetheless she chose to do so. As indeed is her right. Exercising rights sometimes involve consequences and the consequences of this application will be an order for costs against her.
The respondent husband has sought an order for costs pressed primarily on an indemnity basis. I am not satisfied that this is one of those cases that falls into that category that would be sufficient to attract an order for indemnity costs. The ordering of costs is within the general discretion of the court as circumscribed only by the provisions of s.117.
I will order that the costs be quantified and that they be quantified in accordance with schedule 1 of the Federal Magistrates Court rules. The appropriate fee payable is stage 2 which is $1135 together with the daily hearing fee. The parties were at court for at least a full day and the appropriate amount to add to the stage 2 fee is $1365. This will require that the wife pay a total sum of $2500. The form 17 filed by the wife disclosed that she had approximately $3488 in the bank as well as shares with Telstra and NRMA of some $1775 thus she has approximately $5000 cash resources available to her.
I propose to order that, the costs order is paid in two parts. Part of it will be required to be paid which I assume she will source from those funds and shares identified in her form 17 which will be as to one half, the other half will be payable by her as part of the adjustment in the section 79 orders thus she will not completely or substantially exhaust the moneys that she has available by way of small back up.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 27 May 2002