Salton and Morand (No 2)

[2015] FamCA 579

FAMILY COURT OF AUSTRALIA

SALTON & MORAND (NO 2) [2015] FamCA 579

FAMILY LAW – COSTS – Where the respondent did not participate in the substantive proceedings – Where orders were made as sought by the applicant – Where the applicant sought that the respondent pay the costs of the proceedings as agreed or assessed – Where the applicant’s costs were modest – Where it was found that the respondent’s failure to engage in the proceedings was not, in itself, sufficient to justify a costs order – Application for costs dismissed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Salton

RESPONDENT: Mr Morand

FILE NUMBER: SYC 5438 of 2014

DATE DELIVERED: 22 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: In Chambers 22 July 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Robertson Saxton Primrose Dunn

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

1. That the application for costs, filed 23 March 2015, is dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salton & Morand has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5438  of 2014

Ms Salton

Applicant

And

Mr Morand

Respondent

REASONS FOR JUDGMENT

1. An application for property settlement by Ms Salton (“the applicant”) was heard on 23 February 2015. The respondent, Mr Morand, did not participate in the hearing and filed no material.

2. Judgement was delivered on 24 February 2015. The facts of the matter are set out in the reasons for judgement.

3. By an application in a case filed on 23 March 2015, the applicant seeks an order that the respondent pay her costs of the proceedings “as agreed or assessed”. No notice was given to the respondent in the application that costs were sought on an indemnity basis.

4. On 13 April 2015, directions were made for the filing of a response and affidavit material and written submissions. The respondent did not file any material. The applicant filed written submissions and indicated in those submissions that she did not wish to be heard further. Accordingly, the application is determined on the basis of the affidavit evidence and written submissions of the applicant.

5. The application falls to be determined having regard to the matters in s 117(2) of the Family Law Act1975 (Cth) which provides:

   (2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A) In considering what order (if any) should be made under subsection (2), the court shall 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 the court;

   (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f) whether either party to the proceedings has made an offer in writing to the other 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.

6. The applicant’s income is approximately $1,800 per week. She has the sole financial responsibility for the children aged nine and six years. That circumstance was taken into account in the substantive proceedings.

7. There is no current evidence of the income of the respondent.

8. Neither party is in receipt of legal aid.

9. The respondent has taken no part in the proceedings and has not responded in any way to the application.

10. The applicant was successful in the substantive proceedings in that orders were made in accordance with her application. However, it cannot be said that the respondent was unsuccessful in that he sought no order.

11. The applicant made two offers of settlement. On 30 April 2014 she offered to resolve the matter on the basis that she received 70 per cent of a fund held by the respondent’s solicitors. The respondent did not respond to the offer.

12. On 20 January 2015 the applicant offered to settle the matter on the basis of her application, indicating that the offer would be relied upon in relation to an application for costs. Again, the respondent did not reply.

13. By virtue of the orders made on 24 February 2015, the respondent received none of the assets available in Australia. There is little prospect of the applicant being able to recover any amount ordered to be paid by way of costs in circumstances where the applicant is unable to collect child support from the respondent and the respondent has no assets in the jurisdiction.

14. The applicant’s costs, calculated on a solicitor/client basis, are modest. They would be considerably less on a party/party basis.

15. The respondent’s failure to engage in the proceedings, which resulted in orders being made as sought by the applicant, is not, of itself, sufficient to justify the making of an order for costs, having regard to the amount in issue.

16. The application for costs, for those reasons, is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 July 2015.

Associate: 

Date:  22/7/2015