VAN DIEMEN & VAN DIEMEN

[2013] FamCA 42

FAMILY COURT OF AUSTRALIA

VAN DIEMEN & VAN DIEMEN [2013] FamCA 42

FAMILY LAW – COSTS – Costs thrown away by adjournment

APPLICANT: Ms Van Diemen

RESPONDENT: Mr Van Diemen

INTERVENOR:

FILE NUMBER: MLC 8968 of 2011

DATE DELIVERED: 15 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Tree J

HEARING DATE: 15 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dunlop

SOLICITOR FOR THE APPLICANT: David Stagg Tonkin & Co

COUNSEL FOR THE RESPONDENT: Mr Testart

SOLICITOR FOR THE RESPONDENT: Taylor & Preston Family Law Lawyers

INDEPENDENT CHILDREN'S LAWYER Mr G Combes

Orders

It therefore follows that my orders will be as follows:

1. I adjourn the trial of this application to a date to be fixed.

2. I order that within 60 days the husband to pay the costs thrown away by the adjournment, fixed at $1358 for the independent children’s lawyer, and $3233.33 for the wife.

3. I otherwise reserve the question of costs of the trial to the fresh trial judge.

4. I certify that this was a proper matter for the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8968 of 2011

Ms Van Diemen

Applicant

And

Mr Van Diemen

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs pursuant to section 117 of the Family Law Act, arising out of the adjournment of the trial of these proceedings. Section 117, subsection (1) provides that, subject to subsection (2A), and other subsections which are irrelevant for the purposes of today, each party to proceedings under this Act should bear his or her own costs. Section 117(2) provides that if, in proceedings under this Act, the Court is of the opinion that there are circumstances that justify it doing so, it may, subject to various subsections and the rules of the Court, make such orders as to costs, whether by way of interlocutory order or as otherwise, as the Court considers just. Section 117(2A) then details six specific matters which the Court shall have regard to in considering whether or not a departure from the ordinary order ought be made, but concludes with:

   (g) such other matters as the Court considers relevant.

2. I think it reasonably clear that the financial circumstances of each of the parties to these proceedings are virtually similar, or very similar, that subsection (b) does not apply and that subsections (c), (d), (e), and (f) likewise do not apply.  However, I am of the view that there is a matter which is relevant, namely, that the adjournment has been occasioned by virtue of the husband having, during the course of the morning, caused his counsel and solicitor to seek leave to withdraw from the further involvement in the case.

3. In view of the fact that that inevitably was likely to lead to the trial exceeding the time available, the husband, in my view, wisely sought to adjourn the proceedings, because I had intimated that if the matter were to exceed the time available, then the trial would abort, potentially with considerable waste of costs.  I’m particularly mindful of the fact that the husband’s solicitors and counsel withdrew without any explanation, and indeed, indicated that they were unable to provide an explanation.  Absent explanation, which I think was otherwise clearly called for in these circumstances, I can only infer that their withdrawal was occasioned by the husband, although I’m unclear precisely why or how.  It therefore follows that in my view, the husband’s conduct has led to the inevitable adjournment of these proceedings.

4. It therefore follows that I am satisfied that there are circumstances justifying the departure from the ordinary rule in relation to costs, and I propose to order the husband pay the costs of the wife and the independent children’s lawyer.  Those costs will be the costs thrown away by virtue of the adjournment.  I have invited the parties to provide me with submissions as to the appropriate quantification of those costs, and clearly it is desirable that those costs be fixed by me rather than the parties being required to undertake taxation.

5. I think it appropriate to fix those costs in accordance with a schedule 3 to the Family Law Rules, and particularly, to provide, in the case of the wife, for counsel’s fees to be fixed in accordance with item 204 in the sum of $1675.50, and for the solicitor’s costs to be calculated in accordance with item 108 of the scale, at a figure of four and a half hours, which I calculate as coming as $957.83.  I was invited to, and I accept, that also thrown away by virtue of the adjournment will be the costs of accommodation of four nights for the wife, in the sum of $600, which I think is reasonable in the circumstances.  I therefore fix the wife’s costs thrown away by virtue of the adjournment in the sum of $3233.33.

6. Far more modestly, I was invited to fix the costs for the counsel for the independent children’s lawyer at the sum of $1358, which is the amount applicable under the relevant Legal Aid scale.  I accede to the request to fix the costs in that sum.

ORDERS DELIVERED

RECORDED  :  NOT TRANSCRIBED

1. I’m mindful of the precarious financial circumstances of both parties, and it seems to me as though, in those circumstances – and I’m also, I should say, mindful of the fact that the parties will have occasioned considerable costs in this trial – I think, with the wisdom of Solomon, somewhere between the two parties’ positions is appropriate.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 15 January 2013.

Associate: 

Date:  15 January 2013