Valadez and Valadez
[2008] FMCAfam 392
•22 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VALADEZ & VALADEZ | [2008] FMCAfam 392 |
| FAMILY LAW – Costs application – respondent wholly unsuccessful – costs application granted. |
| Family Law Act 1975, s.117(2A) |
| Valadez & Valadez [2008] FMCAfam 121 |
| Applicant: | MS VALADEZ |
| Respondent: | MR VALADEZ |
| File Number: | PAM5277 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 5 March 2008 |
| Date of Last Submission: | 18 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Browns the Family Lawyers |
| Respondent: | Self-represented |
ORDERS
That the respondent husband pay the applicant wife’s costs in the sum of $10,445 no later than 26 weeks after the date of the making of this order.
IT IS NOTED that publication of this judgment under the pseudonym Valadez & Valadez is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM5277 of 2006
| MS VALADEZ |
Applicant
And
| MR VALADEZ |
Respondent
REASONS FOR JUDGMENT
I made orders in this matter, and published full reasons, on 27 February 2008. The present application is the wife’s application for costs.
I directed that written submissions in relation to costs be filed by each party. The wife submitted her written submission together with a short affidavit in support on 18 March 2008. The date for the husband to provide his submissions in reply expired on Wednesday 2 April 2008. No such written submissions were received.
There is no need for me to set out in the present judgment the history of the matter, the issues in the case, or the findings that I have made. All of those matters are dealt with at length in my judgment which was published and which is reported as Valadez& Valadez [2008] FMCAfam 121.
An application for costs is, of course, determined by reference to the provisions of s.117(2A) of the Family Law Act. Part 21 of the Federal Magistrates Court Rules 2001 also sets out procedural matters in relation to costs orders.
Mr Brown is the solicitor for the wife. In his written submissions he advances the wife’s claim to costs on four different bases:
The first basis of the claim for costs arises out of the significant difference in the financial circumstances of the parties. I accept that this is the case. My findings reflect this.
The second basis for the wife’s claim for costs has regard to the conduct of the parties in relation to the proceedings, and in particular the husband’s failure to make adequate financial disclosure. This submission is sustained by the evidence. I need not repeat all of the evidence that led me to conclude that the husband displayed a ‘cavalier, almost indifferent attitude about production of documents’ and that he has been ‘less than frank’ about transactions. I am left in no doubt that his conduct substantially increased the cost of the proceedings to the wife.
The next basis for the wife’s claim is that she had been wholly successful in the proceedings. I agree that the outcome of the case, and my findings, support this submission. For all practical purposes, the final outcome of the case closely approximates to that which the wife sought. For all practical purposes, the wife was entirely successful in these proceedings, and the husband entirely unsuccessful.
The final basis in support of the wife’s submission for an order for costs against the husband is that there had been a series of offers in writing, and that each offer, in effect, represented a substantially better outcome for the husband than the order that was ultimately made. Under the circumstances there is no need for me to identify each of the offers made because even if I disagreed with this particular submission, the totality of the other bases for the claim for costs satisfies me that an order for costs is appropriate under the circumstances.
Part 21 of the Federal Magistrates Court Rules gives me a wide discretion in that I may either set the amount of the costs, or set the method by which the costs are to be calculated, or refer the costs for taxation or assessment under the Family Law Rules.
The particular circumstances of this case make recovery of costs highly problematic. In view of the findings I have made against the husband, I would be very surprised indeed if he were cooperative, let alone communicative with the wife and her solicitor about the question of costs. On the facts of this case, however, and having regard to the findings I’ve made against the husband in the substantive proceedings, I think it is an appropriate case for me to set the amount of the costs, and then to provide a reasonable timeframe for payment.
Schedule 1, Part 1 to the Federal Magistrates Court Rules sets out lump sum costs in Family Law proceedings. In this case I think it is appropriate to order costs against the husband, in favour of the wife as follows:
Stage 1: $1,500
Stage 3: $1,250
Stage 5: $3,195
Final Hearing Fee: 2 Days at $1,500 per day = $3,000
Advocacy loading at 50% $1,500
Total: $10,445
Having regard to the size of the order for costs, and knowing the husband’s financial circumstances as I do, it is appropriate to provide a generous time for the payment of costs. Accordingly, I order the husband pay the wife’s costs in the sum of $10,445 no later than 26 weeks after the date of the making of this order.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Deputy Associate: Monique Robb
Date: 22 April 2008
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