Taisha and Peng & Anor

[2013] FamCA 1

FAMILY COURT OF AUSTRALIA

TAISHA & PENG AND ANOR [2013] FamCA 1

FAMILY LAW – COSTS – Applicant to pay one-half of first respondent’s costs

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANT: Ms Taisha

RESPONDENT: Ms Peng

RESPONDENT: Mr Pan

FILE NUMBER: MLC 5803 of 2011

DATE DELIVERED: 10 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way of Written Submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE RESPONDENT: Lander & Rogers

Orders

1. That the applicant pay one-half of the first respondent’s costs of these proceedings in an amount to be agreed and failing agreement as assessed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Taisha & Peng and Anor 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 MELBOURNE

FILE NUMBER: MLC 5803 of 2011

Ms Taisha

Applicant

And

Ms Peng

Respondent

And

Mr Pan

Respondent

REASONS FOR COSTS JUDGMENT

1. On 24 May 2012 I dismissed the applicant’s application in which she sought a declaration under s 90RD of the Family Law Act 1975 (Cth) (“the Act”) and if she was successful, a property settlement with the respondent. In those orders, I made provision for the application for costs by either party to be made by written submission. Those submissions were to be filed and served by 22 June 2012 and any reply thereto by 6 July.

2. The successful respondent filed her application on 19 June 2012 but no response was received from the applicant.  Because of the file’s movement within the Registry, these reasons have unfortunately been significantly delayed.

3. Section 117 of the Act provides that in proceedings in this Court, each party shall bear their own costs unless there are circumstances justifying a departure from that principle and if the Court is considering such an order, it must take into account the various matters set out in s 117(2A).

4. The submissions of the respondent commenced by acknowledging that legislative principle to which I have just referred.

5. The submission of the respondent indicated that whilst there was no precise financial information about the parties’ circumstances, it had always been the applicant’s case that she had been very successful estimating her earnings to be between $30,000 and $50,000 but in addition, that she had been the financial provider during the relationship as she perceived it.  It was therefore submitted that the Court could be comfortable in presuming that the applicant could afford to contribute towards the respondent’s costs.  The submission went further and said that the applicant had been wholly unsuccessful because of the obligation upon her to prove that a de facto relationship existed.  It was always the case that the applicant understood, according to her counsel, that the burden of proving that relationship existed, fell to her.  In the reasons for judgment, I observed that the applicant had failed. 

6. The written submission also pointed to the fact that there had been proceedings in VCAT relating to a partition and sale of the real property.  That proceeding was withdrawn to commence these proceedings.  In addition, the applicant had sought a specific order against the respondent’s husband.

7. In the reasons delivered with the orders, I said:

   Despite the reference in s 4AA(4) to the Court making its finding on such “matters” and giving those such weight as the Court considers appropriate, it was submitted by both parties that the standard of proof was the balance of probabilities.  Section 4AA does not create an evidential burden upon the respondent.

8. I pointed out the importance of the approach to determining the matter on the balance of probabilities and that I was using the Briginshaw test (see Briginshaw v Briginshaw (1938) 60 CLR 336).

9. In summing up the position, I observed:

   77.The secretive nature of the asserted relationship, the various circumstances of the living arrangements which changed from time to time and which are as consistent with a mother and daughter relationship as they are of a sexual relationship, the absence of any significant corroborative material to support the major assertions and the absolute denials of the family and the respondent’s other witness, all lead me to doubt the case of Ms Taisha.  I cannot guess because that is exactly what the trial judge did in Briginshaw.  I find that I am not persuaded to the appropriate standard as to the existence of a de facto relationship.

   The onus of proof

   78.The onus is on Ms Taisha to prove the existence of the de facto relationship.  On her evidence, I could not find that she has established that burden.

10. It was agreed between the parties that with the stark factual difference, one of them was not telling the truth. That being so, only one version was plausible. The applicant pursued her claim with vigour knowing that she carried the burden of proof. This was a situation in which there was little, if any, corroborative material and she accordingly took on the risk. In my view, unlike other family law cases involving facts that were not so stark, this was a situation where the applicant was acknowledging the risk because of the burden she carried. In my view, that is a justifiable reason for considering a departure from the principles in s 117 of the Act.

11. As I pointed out above, before making an order, the Court is obliged to look at the matters set out in s 117(2A). I agree with the submission of the respondent about the financial circumstances of the parties. Both were represented by counsel and there was never any suggestion of impecuniosity. As I understand it, neither party had the benefit of a legal aid grant. There could be no suggestion of any misconduct in relation to the preparation of the proceedings or non-compliance with order or obligations relating to discovery but it is clear that the applicant chose the court forum after considering her position at VCAT and that no doubt exacerbated the costs of the parties. Having regard to the fact that the essential first step was to establish the Court’s jurisdiction, the failure of the applicant to succeed must entitle the Court to find that she has been wholly unsuccessful. I am not aware of any offer otherwise to settle the proceedings. Accordingly, this is a case in which an order for costs should be made.

12. Having said that, some of the evidence called by the respondent was largely unhelpful.  I refer specifically to paragraph 61 of the reasons for judgment.  In my view, the respondent should not be entitled to all of her costs.  There was no submission about a costs agreement and accordingly, the scale in the schedule to the Rules should apply.  In my view, having regard to what I have said in paragraph 61 of the judgment, the applicant should pay one-half of the respondent’s costs by agreement and failing agreement as assessed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 January 2013.

Associate: 

Date:  10 January 2013