Sorenson and Sorenson

[2007] FamCA 773

FAMILY COURT OF AUSTRALIA

SORENSON & SORENSON [2007] FamCA 773

FAMILY LAW – PROPERTY SETTLEMENT– COSTS –Review Application with respect to orders made by Judicial Registrar

APPLICANT: MRS SORENSON

RESPONDENT: MR SORENSON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAF 454 of 2005

DATE DELIVERED: 2 August 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Coleman J.

HEARING DATE: 4 & 5 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr. McPherson

SOLICITOR FOR THE APPLICANT: Malouf Solicitors

COUNSEL FOR THE RESPONDENT: Ms Baumgarten

SOLICITOR FOR THE RESPONDENT:

Simone Baumgarten

Burston, Cole & Mulock

INDEPENDENT CHILDREN’S LAWYER:

Orders

1. That there be no order for costs of the review application.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Coleman delivered this day will for all publication and reporting purposes be referred to as Sorenson & Sorenson

FAMILY COURT OF AUSTRALIA AT  PARRAMATTA

FILE NUMBER: PAF 454 OF 2006

MRS SORENSON

Applicant

And

MR SORENSON

Respondent

COSTS JUDGMENT

1. Consequent upon the delivery of judgment in the substantive proceedings between the parties on 6 June 2007 the husband sought an order for costs. In succinct written submissions prepared by his learned Counsel and dated 18 June 2007 the basis of such application was articulated. The wife resists the husband’s application for costs and in written submissions by her learned Counsel dated 9 July 2007 reveals the basis of such opposition.

2. On behalf of the husband an order for costs from the date of an offer of settlement (31 July 2006) was sought. Counsel for the husband provided a copy of such offer together with correspondence which followed the making of the offer and an offer of settlement filed on behalf of the wife on 26 August 2006.

3. Counsel submitted, correctly there is no doubt, that the application is governed by provision of section 117(2A). Counsel referred to the effect of the orders made by the Court consequent upon the Court concluding that the assets of the parties should be divided as to 55 per cent to the wife and 45 per cent to the husband.

4. Reliance was placed upon the reality that a portion of the husband’s 45 per cent entitlement “comprises of superannuation and of course monies which were added back into the pool of assets by agreement or following the findings of the learned Judicial Registrar”.

5. To the extent that reliance is placed upon the division of assets of the parties, two observations are relevant. The Court’s decision of 6 June 2007 has not been the subject of appeal. So far as the husband was to receive as part of his entitlement, or notional entitlement, monies which may not be available to him, that was taken into account by the Court in determining the entitlements of the parties (paragraphs 56 to 58, Reasons for Judgment).

6. The Court does not perceive, in the circumstances, that the financial circumstances of the parties enhance the husband’s application for an order for costs.

7. Neither party is in receipt of Legal Aid and even if either or both parties were, that would not be a matter of significance in the context of this case.

8. Fairly, no submissions were made in relation to the conduct of the parties in relation to the litigation. It was, accurately in the Court’s view, submitted that “both of the parties proceeded sensibly in relation to the conduct of the review proceedings”. The Court’s Reasons for Judgment in the substantive proceedings recognise that reality.

9. In substance, the real basis of the application on behalf of the husband was the offer of settlement of 31 July 2006. It was submitted, with some justification, that the offer was more generous to the wife than were the Court’s orders of June 2007.

10. In response, to the husband’s costs claim, reliance was sought to be placed upon financial circumstances of the wife. Without wishing to seem dismissive in relation to the wife’s health and prospects of employment, those factors were taken into account by the Court in the determination of a just and equitable proportionment of the parties’ assets, and impacted in the wife’s favour in that regard.

11. Sensibly, the focus of the submissions made by Counsel for the wife related to the offer of settlement upon which the husband’s claim was substantially, if not wholly based. Reliance was placed upon the fact that the amount payable to the wife pursuant to the orders the subject of the review application was increased by almost $20 000 by the orders of this Court of 6 June 2007.

12. It was submitted, accurately there seems little doubt, that the review was filed of necessity by virtue of a material error in the calculations of the Judicial Registrar which error was sought to be rectified by the parties with the Judicial Registrar prior to the filing of the review. The submission that “the Review is necessary, it was successful, but in all the circumstances …neither party was ‘wholly unsuccessful’” is a reasonable summary of events.

13. Without referring to each of the matters raised by Counsel for the wife, or necessarily accepting that the submissions there made are necessarily substantiated, the Court accepts that there was some ambiguity in the offer of settlement of July 2006. It is correct to submit that, in the exercise of its discretion de novo, the Court did reach different conclusions with respect to contributions and section 75(2) entitlements. It is also correct to submit that, to the extent that the orders of this Court provided the wife with approximately $13 000 less than the husband’s offer may have provided, that represented less than 1 per cent of the asset pool.

14. Sensibly, particularly in the light of the terms of the wife’s offer to settle of 25 August 2006, Counsel for the wife sought only to resist the husband’s application for costs of the review. It may be that, with hindsight, the wife would have been better off to have accepted the husband’s offer of settlement of 31 July 2006. That is a circumstance to be taken into account.

15. The review, as both parties sensibly acknowledge, was conducted with expedition and economy, for which the parties are to be commended. There were issues of significance for determination on the hearing of the review application as the Court’s Reasons for Judgment of 6 June 2007 hopefully reflect.

16. In reality, other than by, in effect, allowing costs to follow the event as it were on a particular construction of the husband’s offer of settlement of July 2006, there are no other facts or circumstances which would lead the Court to form the opinion required by the legislation.

17. The Court is not, in all the circumstances, of the opinion that circumstances justify an order for costs. Had the result been as it was, and the case been conducted before this Court in the way in which it was on behalf of the wife, no doubt on her instructions, before the learned Judicial Registrar, a different conclusion might be reached. On the facts as found by this Court, and the circumstances as revealed by the submissions of Counsel for the parties, the Court is not satisfied on the balance of probabilities that circumstances justify the making of a costs order.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:

Date:  2 August 2007