Trotter & Payne (No 2)

[2012] FamCA 558

FAMILY COURT OF AUSTRALIA

TROTTER & PAYNE (NO. 2) [2012] FamCA 558

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

Colgate – Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

APPLICANT: Ms Trotter

RESPONDENT: Mr Payne

FILE NUMBER: MLC 5159 of 2008

DATE DELIVERED: 19 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: By way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hannan

SOLICITOR FOR THE APPLICANT: Harwood Andrew Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. By 4.00pm on the 16 August 2012 the husband pay the wife’s costs of and incidental to her application for enforcement filed 28 November 2011, including the costs of the submissions in support of the application for costs, fixed in the sum of $4,935.

2. The wife’s Application in a Case filed 28 November 2011 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trotter & Payne 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: MLC5159/2008

Ms Trotter

Applicant

And

Mr Payne

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application by the wife that the husband pay her costs of and incidental to her application in a case filed 28 November 2011 for enforcement of the child support agreement signed by the parties on 17 May 2007. The wife seeks the payment of those costs on an indemnity basis. The husband opposes the wife’s application for costs.

2. On 30 March 2012 I made orders that the husband pay to the wife the sum of $43,649.80, that being the sum owed to the wife pursuant to the terms of the child support agreement. I made further orders to give effect to my order in the event that the husband did not make that payment.

3. The general rule is that each party to proceedings in this Court bears his or her own costs. That general rule is subject to s117(2) of the Family Law Act 1975 (Cth), which provides that if the Court is of the opinion that there are circumstances that justify it doing so, it may make such order as to costs as it considers just. Section 117(2A) sets out the matters the Court must have regard to in determining what, if any, orders should be made for costs, in so far as they are relevant. Which matters must be present and what weight is given to them is for the court to determine in each case.

4. Generally orders for costs are made on a party and party basis, however the Court does have discretion to order indemnity costs. The decision to order indemnity costs should not be taken lightly and there must be some aspect of the case in question which sets it apart that would justify a departure from those cases in which the Court makes orders for costs on a party and party basis (Colgate – Palmolive v Cussons Pty Ltd (1993) 46 FCR 225.).

5. I am satisfied that the circumstances of this case justify a departure from the general rule that each party to the proceedings should bear their own costs and that there are aspects of this case which justify an order for indemnity costs.

6. This is the second time that wife has had to issue enforcement proceedings as a result of the husband’s failure to comply with the provisions of the child support agreement. On 16 July 2008 Mushin J made orders that not later than 10.00am the following day the husband pay $16,418.39 to the wife and a further sum of $4,005.85 to P School.

7. The child support agreement in this case required the parties to each pay half of the costs and associated costs of the children’s education, including private school fees and the children’s medical, dental and orthodontic expenses, including private health insurance. There was no provision for the payment of periodic child support and at the time the parties entered into the child support agreement they were living with the husband and wife on a week about basis.

8. The wife is a real estate agent. I do not have before me detailed evidence in relation to her current financial circumstances however it is clear from the evidence that the week about arrangement for the children broke down in February 2010 and that, apart from the husband paying his half share of the school fees in 2010, the wife has met all of the children’s expenses since that date.

9. Neither of the parties in this case is in receipt of legal aid. I have already found, based upon both the evidence of the wife and the husband’s own evidence, that the husband had the capacity to meet his obligations pursuant to the child support agreement. And I am satisfied that the husband has the capacity to meet the order for costs sought by the wife and is in a superior financial position to the wife on the basis of her financial obligations for the children’s support..

10. The wife’s application was wholly successful. The orders required the husband to pay her what she said was due and owing to her pursuant to the child support agreement. Of more significance to this application is that these proceedings were necessitated by the husband’s failure to meet his obligations pursuant to the child support agreement and that he failed to meet those obligations in circumstances where, given the previous enforcement proceedings, he should have been aware of his obligation to comply with the provisions of the agreement.

11. Not only had there been previous enforcement proceedings, there was also a notation to the parenting orders made by consent on 13 May 2010, reflecting the fact that the children were living on a full time basis with the wife, that the child support agreement would remain in full force and effect.

12. On 22 February 2012 the husband requested an adjournment of the proceedings. The wife did not agree to that adjournment, however that same day a letter was forwarded to the husband advising him that the wife would not agree to an adjournment but that if he provided a bank cheque to her solicitor in the sum of $43,939.21 by no later than 12.00pm on Friday 24 February 2012 she would withdraw her application. Whilst the payment the wife sought from the husband was less than the ultimate order, it was not significantly less, and, more importantly, the husband made no offer to pay any amount prior to the hearing save and except that he did depose in his affidavit that he would be prepared to pay his half of L’s Year 12 school fees. However, his proposal was conditional upon his share of the fees being paid out of the monies held in trust on behalf of the children. In the course of the proceedings he also acknowledged that he was responsible for half of the children’s school text books, uniforms and other school related expenses in the sum of $1,016.17.

13. The husband’s conduct demonstrates a blatant disregard for his obligations pursuant to that agreement. His evidence during the case was both evasive and disingenuous and he did not offer a satisfactory explanation for his failure to abide by the terms of the agreement.  

14. The husband did not make any submissions with respect to the quantum of costs sought by the wife or whether he required time for payment of any costs that might be ordered.

15. I am satisfied that the costs sought by the wife are reasonable. I propose to make and order for costs on an indemnity basis in the amount sought by the wife. I propose to allow the husband 28 days from the date of my order to pay those costs. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 19 July 2012.

Associate: 

Date:  19 July 2012