Thrussell & Thrussell (No 2)

[2019] FamCA 669

FAMILY COURT OF AUSTRALIA

THRUSSELL & THRUSSELL (NO. 2) [2019] FamCA 669

FAMILY LAW – COSTS – Where the Applicant seeks costs on an indemnity basis – where the Respondent was wholly unsuccessful in the proceedings – where there was an offer of settlement on the part of the Applicant – circumstances of an exceptional kind warrant the making of an order for costs.

Family Law Act 1975 (Cth) s. 117
Family Law Rules 2004 (Cth) r.19.08

Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT: Mr Thrussell

RESPONDENT: Ms Thrussell

FILE NUMBER: MLC 11833 of 2017

DATE DELIVERED: 18 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 15 May 2019

WRITTEN SUBMISSIONS: 7 June 2019

RESPONDENT TO FILE WRITTEN SUBMISSIONS BY (none filed or served): 9 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fuller

SOLICITOR FOR THE APPLICANT: Tisher Liner FC Law

THE RESPONDENT: In Person

Order

1. Within 14 days hereof the Respondent pay the Applicant’s costs of, and incidental to, the parenting proceedings from 8 April 2019 to date on an indemnity basis, fixed in the sum of $10,062.10.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thrussell & Thrussell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11833 of 2017

Mr Thrussell

Applicant

And

Ms Thrussell

Respondent

REASONS FOR JUDGMENT

1. On 30 May 2019 final orders were made in respect of the Respondent husband’s (‘the Respondent’) application for parenting orders first filed by the Respondent on 24 November 2017. Those orders were, relevantly, as follows:-

   …

   (2) The husband’s application as contained in his response filed on 24 November 2017 is dismissed.

   (3) The matter be removed from the list of active cases.

   (4)  The question of the husband’s payment, if any, of the wife’s costs and on an indemnity or other basis from 8 April 2019 be determined by the Court upon a consideration of any written submissions, together with any affidavit evidence sought to be relied upon by the parties. Such submissions are to be filed and served by the wife within 28 days of these orders, and thereafter by the husband within 28 days of service of the wife’s submissions and affidavits, if any, upon him. Proof of such service upon the husband is to be provided to the Court by the wife. Service can be effected by ordinary pre-paid post addressed to Mr Thrussell at N Street Town M.

2. Pursuant to order 4 of the above orders the Applicant wife (‘the Applicant’) sought orders such that the Respondent pay her costs of the parenting proceedings from 8 April 2019. The Applicant sought orders as follows:-

   That within 14 days, the Respondent Husband pay the Applicant Wife’s costs of, and incidental to, the parenting proceedings from 8 April 2019 to date on an indemnity basis, in the sum of $10,062.10.

   That in the alternative… the Respondent Husband pay the Applicant Wife’s costs of, and incidental to, the parenting proceedings from 8 April 2019 to date on a party/party basis, in the sum of $4,986.01.

3. In support of the orders sought by her, the Applicant filed an affidavit of Mr R, solicitor, sworn 5 June 2019 and filed submissions as to costs on 7 June 2019. An affidavit of service as to service upon the Respondent of these documents by both post and email on 11 June 2019 was affirmed by Ms Q on 11 June 2019 and filed 18 June 2019. All of the elements as to service in order 4 of the orders made 30 May 2019, were complied with.

4. No written submissions, affidavit evidence or material of any sort has been filed or served by the Respondent.

5. Section 117 of the Family Law Act 1975 (Cth) (‘the Act’) provides the Court with power to make orders in relation to costs. Section 117(1) creates a statutory presumption that each party to proceedings under the Act “shall bear his or her own costs”.[1] This presumption is subject to s.117(2) of the Act, which empowers the Court to “make such order as to costs…as the court considers just”[2] if it is “of opinion that there are circumstances that justify it in doing so.”[3] Section 117(2A) provides that in “considering what order (if any) should be made” for the payment of costs, “the court shall have regard to” the matters identified in ss.117(2A)(a) to (g) of the Act. Rule 19.08 of the Family Law Rules 2004 (Cth) (‘the Rules’) similarly empowers the Court to make an order for costs.

   [1]Family Law Act 1975 (Cth), s 117(1).

   [2] Ibid s 117(2).

   [3] Ibid.

6. In these proceedings neither party is in receipt of legal aid.

7. The making of a costs order is a discretionary exercise. Whilst the Respondent claimed, from the bar table, that he was in May this year impecunious, he had been able to take a transfer of the former matrimonial home from the Applicant and keep that asset, with its considerable encumbrances, in his possession and ownership. The Applicant received, as a consequence of the parties final consent property orders, entered into between the parties on 23 April 2018, no funds nor assets of any significance. The Applicant’s current, in May 2019, financial circumstances were fairly desperate as referred to in the Reasons for Judgment of 30 May 2019 in that the Applicant receives no child support payments from the Respondent and relies upon the generosity of her family members to assist in the payment of her and the children’s expenses. The only evidence the Respondent placed before the Court as to his financial circumstances is as contained in his financial statement filed in November 2017 when he deposed to receiving $2,520 net income per week from his employment in the transport industry. Even if that evidence does not reflect the Respondent’s current income receipt, and there is no evidence from the Respondent to support that assertion, such earlier evidence at the least goes to a considerable financial capacity to earn income by the Respondent, which he may by choice not be exercising.

8. The Respondent’s conduct throughout the running of his parenting order application resulted in a significant accrual of costs to the Applicant. The Respondent in essence failed to comply with orders of the Court and failed to prosecute his application. He was well aware of the futility in conducting two sets of proceedings being in Australia and in the Supreme Court of Country B but appeared intent on making the proceedings in both forums costly and more difficult for the Applicant.  Indeed the Applicant’s compliance with all of the orders of the Court imposed a cost on her not borne by the Respondent who failed, on many occasions, to so comply. Such multitude failures are referred to in the Reasons for Judgment of 30 May 2019.

9. The Respondent’s parenting application was wholly unsuccessful. The Applicant was wholly successful in having the Respondent’s parenting application dismissed in its entirety, an order which the Applicant first sought by way of her response to an application in a case filed on 12 January 2018. The Court accepted the arguments made on behalf of the Applicant that:-

   a)the Respondent had failed to prosecute his case; and

   b)Country B was the most convenient forum for the parenting dispute.

10. As set out in the Applicant’s submissions of 7 June 2019, through her solicitors, the Applicant made a written offer to the Respondent to settle the parenting matter. The offer was contained in a letter from the Applicant’s solicitors to the Respondent dated 8 April 2019. The offer was sent to the Respondent’s known residential address, being the former matrimonial home which was transferred to the Respondent in late October 2018. The offer was also sent by email to the Respondent’s known email address, which email address was on the Court record as the Respondent’s email address for service. A delivery receipt was received by the Applicant’s solicitors shortly after the email was sent. The Court finds that the Respondent received a copy of the offer.

11. The Applicant’s offer provided for the Respondent to withdraw his parenting application, the proceedings to be dismissed by consent, and each of the Applicant and Respondent to bear their own costs. The parenting proceedings in Country B were to continue. The Respondent implicitly rejected this offer by failing to respond on or before the deadline of 16 April 2019 as stated in the offer. The Respondent indeed did not provide a response to the offer at any time.

12. The Applicant relies upon the affidavit of her solicitor, Mr R, filed contemporaneously with the Applicant’s written submissions insofar as it provides details of the payment arrangements between the Applicant and her solicitors, Tisher Liner FC Law. The Court finds the Applicant incurred costs and disbursements of, and incidental to, the proceedings since 8 April 2019 totalling $10,062.10, comprised as follows:-

    a)$7,552.10 in solicitors’ fees;

    b)$1,650 in Counsel’s fees; and

    c)$860 in other disbursement costs namely the Court setting down fee.

13. The Court finds in this matter that there are circumstances of “an exceptional kind”[4] which warrant the making of an order that the Respondent pay the Applicant’s costs of, and incidental to, the proceedings on an indemnity basis from 8 April 2019 to date.

    [4]Yunghanns v Yunghanns (2000) FLC 93-029, [30].

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 18 September 2019.

Associate:

Date:  18 September 2019