SELWOOD & SELWOOD

[2011] FamCA 646

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD [2011] FamCA 646

FAMILY LAW – COSTS – application by the husband seeking orders for costs against the wife – consideration of s 117(2A) factors – where the husband needed to bring proceedings to secure the orders which were ultimately made by consent – where the wife was not wholly unsuccessful in her application – orders that the wife pay 75 per cent of the husband’s costs in the proceedings.

Family Law Act 1975 (Cth) ss 117 & 117(2A)

APPLICANT: Mr Selwood

RESPONDENT: Ms Selwood

INTERVENOR: Ms K Selwood, Mr H Selwood and F Pty Ltd

FILE NUMBER: DNC 359 of 2010

DATE DELIVERED: 5 July 2011

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 5 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Norrington
SOLICITOR FOR THE APPLICANT:	DS Family Law

COUNSEL FOR THE RESPONDENT:	Ms Farmer
SOLICITOR FOR THE RESPONDENT:	Withnalls

COUNSEL FOR THE INTERVENOR:	Ms Giacomo
SOLICITOR FOR THE INTERVENOR:	Cater & Blumer

Orders

1. That the wife pay the husband’s costs in relation to today’s proceedings fixed at the sum of SEVEN HUNDRED AND FIFTY DOLLARS [$750], with such amount to be paid by the wife to the trust account of DS Family Law for and on behalf of the husband at the time that the parties receive the net proceeds of sale of the property situated at H Street, J Town in the Northern Territory.

IT IS NOTED that publication of this judgment under the pseudonym Selwood & Selwood 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 DARWIN

FILE NUMBER: DNC 359  of 2010

Mr Selwood

Applicant

And

Ms Selwood

Respondent

And

Ms K Selwood, Mr H Selwood and
F Pty Ltd
Interveners

REASONS FOR JUDGMENT

1. I have before me today for determination the husband’s Application in a Case filed in the Federal Magistrates Court on 4 April 2011 and subsequently transferred to the Family Court.  I also have before me the wife’s Response to that Application in a Case filed similarly in the Federal Magistrates Court on 28 April 2011.

2. After argument this morning, I indicated that I was proposing a number of orders on the husband’s aforesaid Application in a Case which essentially reflected the orders that he was seeking bar that the wife was also to receive an amount of $75,000 from the sale of the J Town property.  I prompted the parties to engage in some further discussions to see if there were any other issues that they would need resolved prior to the matter being listed for trial.  They accepted that opportunity and I am pleased to say that they presented to the Court a comprehensive Minute of Order to be made by consent. I accordingly made those orders.

3. I have now been asked by the husband’s legal representative to make an order for costs in relation to the husband’s aforesaid Application in a Case essentially on the basis that the application was promoted by the wife’s refusal to comply with earlier requests that the property be sold and that as a consequence, Court action was prompted.

4. The legal representative for the wife responded saying that the wife has been successful in her Response to the husband’s Application in a Case in a wide variety of respects.  Certainly the consent orders that I have just made reflect a number of the orders that the wife was seeking.

5. Before I make any order for costs I need to consider the provisions of Section 117 of the Act and particularly Section 117(2A). The first matter which I must consider is:-

   (a)the financial circumstances of each of the parties to the proceedings;

   That is easily resolved by the consent orders that were made this morning in that each of the parties is to get an amount of $75,000 from the sale of the J Town property.  Thus there is no question that both of them can afford to meet any order for costs that I make.

6. Sub-section (b):-

   (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;
   

   is irrelevant in this matter as neither party receives legal aid.

7. Sub-section (c):-

   (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;

   in my view, is linked in this particular case with sub-section (f):-

   (f)whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

   I note that a proposal was made by the husband through his solicitors in a letter directed to the wife’s solicitors dated 6 May 2011.  In that correspondence he proposed the sale of the property at J Town.  That order, of course, has now been made and in the end result was made by consent between the parties.  I am thus satisfied that the proceedings were essentially prompted and required by the wife’s refusal to satisfy the request that the husband made on 6 May 2011.

8. I have before me a letter in response dated 9 June 2011 from the wife’s solicitors.  It does not indicate any agreement to the proposal of the husband.  I have not been informed today that there is any other correspondence which would represent a different position to the Court.  Thus I am satisfied that the husband needed to bring proceedings to secure the orders that he has achieved today.  I accept though that a number of other less significant orders were made which favour the aforesaid Response filed by the wife.

9. Thus, in respect of sub-paragraph (e) which requires the Court to consider:-

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

   it is my view that it cannot be said that the wife was wholly unsuccessful but there is no question that the husband was wholly successful in the application that he brought for the sale of the J Town property and the distribution of proceeds to provide a “fighting fund” which will be necessary for the parties to use in order to ready the matter for trial.

10. Therefore, in my view it would be appropriate to order that the wife pay 75 per cent of the costs of the proceedings before the Court today and in relation to the preparation of the documents which promoted today’s proceedings.  The husband, through his solicitor, is asking for costs in the sum of $1,000.

I certify that the preceding ten (10) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 5 July 2011.

Associate: 

Date: