Sweetland and Sweetland

[2009] FamCA 792

FAMILY COURT OF AUSTRALIA

SWEETLAND & SWEETLAND [2009] FamCA 792

FAMILY LAW – PROPERTY – Contravention
FAMILY LAW – COSTS – Between parties

Family Law Act 1975 (Cth)

APPLICANT: Mr Sweetland

RESPONDENT: Ms Sweetland

FILE NUMBER: BRC 5211 of 2007

DATE DELIVERED: 10 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 10 August 2009

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr J. Billimoria, Solicitor, as Town Agent for Logie-Smith Lanyon, Solicitors, of Melbourne, Victoria

Orders

1. Leave is granted to the Husband to withdraw the Contravention Application filed by him on 26 February 2009 and the matter is removed from the list of matters awaiting finalisation.

1. The oral application for costs made today by the Wife is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sweetland & Sweetland is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5211 of 2008

MR SWEETLAND

Applicant

And

MS SWEETLAND

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Initially, an application brought by the husband, and the application was in these terms:

   Payment was ordered to be received contemporaneously with date of settlement.  The respondent refused to pay her obligations to debts and threatened to hold settlement. 

2. That application was filed on 26 February 2009 together with an affidavit in support filed the same day.  The original hearing date of that application was due to be 23 March 2009. 

3. I am told from the bar table that the matter was adjourned three times.  It came before me today in the judicial duty list for determination. 

4. When the matter was mentioned before me, the husband indicated that he intended to withdraw the application for contravention.  That was not opposed.  The applicant was accordingly given leave to withdraw the application for contravention.

5. Upon that order being made, the solicitor who appears for the mother made application for costs. 

6. The general rule in respect of costs is, of course, that which is enshrined in Section 117(1) of the Family Law Act.  That section provides that each party to proceedings under this Act shall bear his or her own costs.

7. Accordingly, as that section makes clear, and as many authorities in this court have made clear, the awarding of costs in this jurisdiction is exceptional.  That exceptional relief is provided upon satisfaction of a discretion which is enlivened by the matters that are referred to in s 117(2A) of the Act. 

8. In respect of those specific considerations, Mr Billimoria who appears as town agent for the wife in this matter, concedes that there is no evidence before me of the financial circumstances of each of the parties as at the date of the application for costs, ie, today.

9. Secondly, the wife is not in receipt of legal aid and the husband appears for himself.  Accordingly, subparagraph (b) is irrelevant. 

10. A case is argued for the wife that the conduct of the parties to the proceedings sounds in an order for costs by reason of what the husband has or has not done in purported compliance with paragraph 2 of the orders made by consent on 8 December 2008.

11. Reference to the voluminous emails passing to and from the husband and the wife’s solicitors indicate a number of things, not least of which is that there were contested assertions and counter assertions about the varying obligations pursuant to the orders. 

12. Those assertions and counter assertions can, in my view, be seen to culminate in an email on 24 July 2009 from the wife’s solicitor to the husband. 

13. Among other things, that email asserts that the orders of 8 December 2008, which are the subject of the application for contravention, are “to be read together” with orders of 15 May 2007 so as to ascertain what the expression “taxation liability” in paragraph 26 of the earlier order means by reference to “income tax” in paragraph 2 of the orders of 8 December 2008.

14. In my respectful opinion, paragraph 2 of the orders of 8 December 2008 are at best, inelegant and at worst, impossible to interpret in terms of them specifying the obligations of each of the respective parties. 

15. In any event, the email to which I have just referred goes on to say, “arguably” the order of 8 December “replaces the earlier order of 15 May 2007”. 

16. Merely outlining the orders and subsequent assertions and counter-assertions in that way points to a difficulty in ascribing conduct to either of the parties that might sound in attracting s 117(2A)(c). 

17. It seems to me that each were contending for differing interpretations of obligations pursuant to orders which, on their face, were, in my respectful view at least, difficult to interpret. 

18. Moreover, and, in my view, importantly the approximate five months of emails passing to and fro between the solicitor for the wife and the husband (who at all times during that timeframe represented himself) at no time did the solicitor for the wife make any “offer in writing” within the meaning of section 117(2A)(f) of section 117.

19. In circumstances where the Act prescribes that, as a general rule, each party to the proceedings in this court should pay their own costs, one of the very few resources that parties have in order to bring to an end proceedings which, they assert, are unjustifiably brought, is to “file an offer”. 

20. A telling circumstance pointing against exercising the discretion, particularly when the husband represents himself, is that the wife through her solicitors, did not do so. 

21. In all of the circumstances of this case, I decline to exercise a discretion to order costs as against the husband.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  31 August 2009