Ulrich and Ulrich

[2012] FamCA 579

FAMILY COURT OF AUSTRALIA

ULRICH & ULRICH [2012] FamCA 579

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Ulrich

RESPONDENT: Ms Ulrich

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: CAC 1209 of 2009

DATE DELIVERED: 24/07/2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 March 2012, 2-5 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Puckey

SOLICITOR FOR THE APPLICANT: Evans Family Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That the husband’s application for costs by way of written submissions dated 8 June 2012 shall be and is hereby dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ulrich & Ulrich 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: CAC 1209  of 2009

Mr Ulrich

Applicant

And

Ms Ulrich

Respondent

REASONS FOR JUDGMENT

1. I gave judgment and made final parenting and property orders in this matter on 15 May 2012, after a five-day hearing.

2. I reserved the husband’s costs, for an application to be made in writing by a specified date.  In the event, the application was made by way of written submissions, forwarded to the court soon after the nominated date.  I see no disadvantage arising for Ms Ulrich (“the wife”) in that regard, and she has since responded with her own written submissions, without any complaint about the timing or the manner of the husband’s application.

3. Costs are determined under s 117 of the Family Law Act. Section 117(2) provides that the Court may make an order for costs if it is of the opinion that there are circumstances that justify it. The decision is discretionary.

4. Section 117(2A) sets out matters relevant to a costs order.

5. In this case, neither party was in receipt of legal aid.  Mr Ulrich (“the husband”) was represented by counsel who was instructed by a solicitor.  He is responsible for his own legal fees via a litigation funder.  He says the outstanding fees are around $116,000. 

6. The wife sets out that she was represented by five different firms in the course of the proceedings, resulting in legal fees of some $125,000-odd, but she represented herself throughout the final hearing.  She still has $28,000 owing in legal fees, secured against the property from which the parties will each receive their property settlement.

7. Each party is capable of earning a solid income.  In his last job, the husband earned $95,000 per annum.  He hoped to resume employment after the hearing.  The wife works as an allied health professional.  I noted in my judgment that she had earned $63,000 gross in the year to date, that is, as at May 2012.

8. Mr Ulrich’s wife, Ms D, earns about $400 per week.  They have equity of about $100,000 in a property.

9. Both the husband and the wife will receive money from the property settlement.  The husband’s reckoning, that the wife will receive about $175,000 taking into account sale expenses, a joint debt, her outstanding legal fees, and the reimbursement to her of a sum of $10,000, is a reasonable calculation. 

10. The husband will receive closer to $500,000.  He needs to house himself, Ms D, and the four children who live with them.  He needs to meet his debt for legal fees.

11. So far as the parenting orders are concerned, the husband was wholly successful, in the sense that the orders that he primarily sought were made.  However, the parenting case involved exquisitely difficult and sensitive issues, not unreasonably aired, and the complexity was highlighted by a Family Report that had made a slightly different recommendation to the later recommendation of a family therapist who had tried to reintroduce the mother and children. 

12. So far as the property proceedings are concerned, it is submitted for the husband that the wife had many opportunities to resolve the proceedings on terms far more favourable to her than those ultimately ordered.  His solicitor provided a schedule of offers. 

13. It is apparent that back in 2009, before the proceedings, the husband made an offer very favourable to the wife, compared to the final orders.  It was that she pay him $300,000 and retain the home.  As noted, after the defended hearing, he will receive a share of something like $500,000 from the sale of the property. 

14. What is apparent from the schedule however is that subsequently, his position hardened significantly from that early position.  On 8 March 2011, he offered settlement on the basis that the wife pay him $530,000.  By letter of 12 August 2011, he proposed that she receive only $120,000. 

15. The husband contends that the proceedings were protracted by the actions of the wife.  I am not satisfied that is a fair assessment overall.  Certainly in the early stages, the case could possibly have proceeded more expeditiously had the wife participated reliably.  However, the greatest delays resulted from court delay, and then the attempts at the therapeutic counselling between the mother and children.

16. The husband also contends that the wife pursued irrelevant and bizarre matters at trial.  That is to some extent a fair summary of my findings, but it overlooks my fundamental finding as to the ill-health that she suffers.  It was that, sadly, that underpinned many of the findings about her behaviour, and the ultimate result against what she was seeking.

17. As I noted at the outset, costs are a discretionary matter.  I am not satisfied that it would be a proper exercise of discretion in this case to order costs against the wife.  That in no way overlooks the inevitable difficulty of meeting costs for the husband. 

18. The parenting issues were difficult, understandably defended strongly by the wife, and her case was substantially tainted by her poor mental health, rather than for example, deliberate mischief or ill-intent on her part.  I am not suggesting those would be the only bases for a costs order, but they are examples of contrast to genuine mental health issues.

19. As to the property proceedings, they were always a very small part of this case.  It is hard to estimate a percentage of the costs to be apportioned to them but it would be small.  Although the wife had opportunities to settle at a very early stage in a way very favourable to her, it was at a time of great complexity in relation to the parenting issues, which no doubt eclipsed any real consideration of financial matters.  As the case proceeded, offers made by the husband were less favourable to her than those ultimately obtained.

20. The only order I propose is that the husband’s application for costs shall be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 24 July 2012 .

Associate: 

Date:  24 July 2012