Shamon & Shamon (No 3)
[2022] FedCFamC1F 359
•23 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon (No 3) [2022] FedCFamC1F 359
File number(s): SYC 2375 of 2021 Judgment of: REES J Date of judgment: 23 May 2022 Catchwords: FAMILY LAW – COSTS – Where no departure from the normal rule that each party should pay their own costs is warranted – Application for indemnity costs not considered. Legislation: Family Law Act 1975 (Cth) s 117(2A) Division: Division 1 First Instance Number of paragraphs: 22 Date of last submission/s: 20 May 2022 In Chambers: 23 May 2022 Place: Sydney Solicitor for the Applicant: Lawbridge Lawyers & Consultants Solicitor for the Respondent: Barkus Doolan ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHAMON
Applicant
AND: MR SHAMON
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS:
1.That the husband’s application for indemnity costs of the application filed 8 March 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Shamon & Shamon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
On 18 March 2022, I made orders by consent in financial proceedings between Ms Shamon (“the Wife”) and Mr Shamon (“the husband”).
The wife, having been appointed as trustee for sale of a property occupied by the husband, sought to have him removed from the property. The orders that were agreed allowed the husband to remain in the property until completion of the sale and that he be responsible for any damage caused during his occupation.
The husband now seeks an order that the wife pay the costs of that application on an indemnity basis. That application is contained in his response filed 15 March 2022. The husband does not seek costs on a party and party basis.
Both parties were directed to file an affidavit and written submissions in relation to the issue of costs. The husband’s submissions were to be filed by 15 April 2022. They were not filed until 6 May 2022.
The wife’s material was to be filed by 6 May 2022 but was not filed, presumably because she had not received the husband’s material. At the date of judgment, no material had been filed on behalf of the wife. The husband was to file any submission in reply by 20 May 2022.
This application is governed by the provisions of s 117(2A) of the Family Law Act1975 (Cth) (“the Act”) which are set out below:
(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.
Before the question of indemnity costs can be addressed, it is necessary to determine whether any order for costs should be made.
The respective financial circumstances of the husband and the wife are the significant issue in the substantive proceedings. The wife asserts that the husband has alienated valuable assets by transferring them to members of his family or by borrowing funds secured against them. A detailed statement of the competing allegations can be found in the judgment of McClelland DCJ delivered on 22 June 2021.
That matter cannot be resolved here and I am unable to make any comparison of the parties’ respective financial positions.
Neither is in receipt of legal aid.
On behalf of the husband, it is submitted that the wife’s failure to make any offer of settlement in relation to the application should be considered pursuant to s 117(2A)(c) of the Act.
However I am not persuaded that is a reasonable position to take.
The wife’s application seeking the removal of the husband from the property was filed on
8 March 2022 and served the same day. In the affidavit in support of the application she deposed to extensive correspondence with the husband’s solicitors attempting to arrange matters such as inspections and arranging for photographs to facilitate marketing the property starting on 12 January 2022. The wife deposed to conversations with the selling agent about damage to the property on 1 March 2022 and further damage on 5 March 2022.
The husband did not file his response until 4.39 pm on 15 March 2022. The orders he sought were that the wife’s application be dismissed and that she pay indemnity costs. That was not the basis on which the matter settled.
In so far as the husband made an offer of settlement, that offer was contained in his affidavit in support of his response which was also filed on 15 March 2022 at 4.39 pm.
That offer was accepted by the wife and consent orders were made on 18 March 2022.
The wife was appointed as trustee for sale of the property as a consequence of the husband’s failure to comply with previous orders.
On 22 June 2021, McClelland DCJ ordered the husband to pay the wife $80,000 by way of interim property settlement and a weekly sum for spousal maintenance. He did not comply with that order.
On 26 November 2021, when the husband had not complied with any of the orders of McClelland DCJ, a Senior Judicial Registrar appointed the wife a trustee for sale to sell the property and, from the proceeds, to be paid the amounts owed to her pursuant to those orders, including ongoing spousal maintenance.
The husband was in default in filing the material in relation to this application as has been earlier explained.
I do not consider that the circumstances of this case warrant any departure from the normal rule that each party should pay their own costs.
In those circumstances, it is not necessary to consider the application for indemnity costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 23 May 2022
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