STOCK & MAUDLIN (No.2)

[2019] FCCA 3721

FEDERAL CIRCUIT COURT OF AUSTRALIA

STOCK & MAUDLIN (No.2) [2019] FCCA 3721

Catchwords:
FAMILY LAW – Spousal maintenance – application for discharge of spousal maintenance order – where respondent was substantially unsuccessful – where applicant had made settlement offer in writing – where respondent was imprudent to reject previous offer – where there was arrears owed to respondent by applicant – costs less arrears ordered.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR STOCK

Respondent: MR MAUDLIN

File Number: DNC 483 of 2018

Judgment of: Judge Young

Hearing date: 2 December 2019

Date of Last Submission: 2 December 2019

Delivered at: Darwin

Delivered on: 2 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: In person

Solicitors for the Respondent: In person

ORDERS

1. That order 3 of the orders of 14 October 2019 that the applicant pay the respondent the sum of $3,400 be discharged.

2. That the respondent pay the applicant’s costs fixed in the sum of $4,000.00.

IT IS NOTED that publication of this judgment under the pseudonym Stock & Maudlin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 483 of 2018

MR STOCK

Applicant

And

MS MAUDLIN

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for costs arising out of the successful application by Mr Stock to discharge a spousal maintenance order. The proceeding is explained in more detail in my decision of 14 October 2019. Mr Stock now seeks a costs order. The relevant matters in relation to a cost order in this jurisdiction are set out in section 117 of the Family Law Act 1975. Generally, each party to a proceeding bears his or her own costs. However, under subsection 117(2) if, in proceedings under the Act, the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to subsections (2)(a), (4),(4a), (5) and (6) make orders as to costs.

3. I was taken by the applicant to various matters in section 117(2)(a). The other matters are not really relevant in this proceeding. In particular, at (a), to the financial circumstances of the parties, Mr Stock earns $49,244 a year. His partner, Ms D, earns $67,298 a year. They have no children to support. The respondent earns $40,716 a year made up principally of workers’ compensation payments at the moment. The complexity about that is that I have found Ms Maudlin was not frank about her financial circumstances and the circumstances of her relationship with Mr B. That was one of the reasons for the discharge of the spousal maintenance order. I am generally not satisfied that Ms Maudlin’s financial statement, where she asserts an income of $40,716, is accurate.

4. In relation to (b), neither party has been in receipt of legal aid as far as I am aware.

5. In relation to (c), the conduct of the parties etc., I found that Ms Maudlin had not made full and frank disclosure in the proceedings. Indeed, the second day of the hearing was necessitated by the discovery, after I had reserved judgment, of the fact that Ms Maudlin was operating what appeared to be a small business or shop from her home in a country area.  I was not, in the circumstances, able to make any finding about her income, if any, from that shop but the issue was that it had never been disclosed prior to, what I think can be called, stealthy inquiries by Mr Stock. I am satisfied that one aspect that ought to be taken into account very seriously is Ms Maudlin’s failure to provide full and frank disclosure of her circumstances, including her financial circumstances.

6. Part (d) is not relevant.

7. In relation to (e), whether any parties in the proceedings have been wholly unsuccessful in the proceedings, Ms Maudlin has been significantly unsuccessful in that the spousal maintenance order was discharged, although, a sum of arrears was preserved in the sum of $3,400. She has been very substantially unsuccessful though not wholly unsuccessful.

8. In relation to (f), whether either party to the proceedings has made an offer in writing, the applicant, Mr Stock, made a series of offers in writing. The first was on 17 January 2019, which was well after proceedings had been commenced on 27 September 2018. That offer was an offer to pay the respondent $8,000 in cash, subject, of course, to the discharge of the spousal maintenance order. That order was simply rejected on 18 January. On 4 February 2019 there was a further offer made of $10,000 but that was to consist of an amount of split from the applicant’s superannuation fund. It appears, in construing that offer that it is a separate offer to the offer made of splitting the applicant’s superannuation fund to comply with an order of Watt J, which had been made about 20 years ago, but which, because of the nature of the order, did not give rise to any current right of the respondent to access the superannuation. This is a separate matter.

9. So there was an offer to split the $10,000 from superannuation fund. It was not apparent from the correspondence that the respondent would have had an immediate right to convert that entitlement to cash. It appears, judging from her subsequent conversion of the $50,000 split related to Watt J’s order, that she probably was able to access that as cash, almost immediately. That offer was rejected. She counter-offered with $12,000 as a superannuation split the following day. A week later, there was an offer from the applicant of $11,000, again, by way of a superannuation split. That offer was simply rejected on 17 February but with a counter-offer from the respondent for payment of arrears in the “range” of $8,000 to $12,300 (it is noteworthy that the claimed arrears were about $10,000 to 11,000 at the time), costs of $15,000 and ongoing spousal maintenance of $100 a week.

10. On 17 February, the applicant offered or repeated the offer of $11,000 by way of superannuation split which was not accepted.

11. I am satisfied that the respondent was imprudent to have rejected the first offer of $8,000 in cash. Whether or not it was imprudent to have rejected an offer of a superannuation split, I am not sure and I don’t make any particular finding about that.

12. The costs sought by the applicant are $8,949. Part of that is a preparation fee for final hearing; part is the hearing fee for two half-days, plus an advocacy loading and a disbursement of a setting down fee. I am satisfied that those amounts claimed are reasonable and according to scale.

13. I propose to make an order for costs in approximately that amount.

14. However, there are arrears of $3,400 still outstanding. I propose to set-off that amount of $3,400 against the costs order which would leave a balance of $5,549. Bearing in mind what I consider is probably a significant disparity between the financial circumstances of each of the parties, I propose to make an order that the respondent pay the applicant a sum of $4,000 in costs. That will be after the set-off and discharge of arrears.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  18 December 2019