Vasilias and Vasilias (No. 6)

[2008] FamCA 860

FAMILY COURT OF AUSTRALIA

VASILIAS & VASILIAS (NO. 6) [2008] FamCA 860

FAMILY LAW – COSTS

APPLICANT: Mr Vasilias

RESPONDENT: Ms Vasilias

FILE NUMBER: MLC 6722 of 2008

DATE DELIVERED: 3 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 3 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms M. Cantwell

SOLICITOR FOR THE RESPONDENT: Hogg and Reid

Orders

1. The husband's application filed 24 July 2008 be and is hereby dismissed.

2. The husband pay the wife's costs of the said application, which I fix in the sum of $1050, such amount to be paid within 90 days of this date.

3. A transcript of today's proceedings be prepared, a copy placed upon the court file, and a copy provided to each of the parties.

IT IS NOTED that publication of this judgment under the pseudonym Vasilias & Vasilias is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6722 of 2008

MR VASILIAS

Applicant

And

MS VASILIAS

Respondent

REASONS FOR JUDGMENT

1. In the matter of Vasilias, the husband's application filed 24 July 2008 seeks an opportunity to obtain certain chattels from the former matrimonial home.  The question of property settlement between the parties was dealt with on a final basis by Cronin J on 31 January 2008, and paragraph 12 of that order provided effectively that each of the parties retain and become solely and beneficially entitled to all property (other than the property dealt with in the earlier paragraphs of that order) that was in the possession of each of them at the date of the order.

2. That therefore means that the issue of chattels of the parties to the marriage is a matter of res judicata, that is a judgment has been made about it, and it is not therefore open to the husband to seek orders that go to a different effect or seek a different outcome in circumstances where there has been no appeal, and no application brought under section 79A of the Family Law Act 1975. I will therefore dismiss the application. 

3. Having foreshadowed at an earlier time in the transcript, which I will order, that I thought that the husband’s application was without merit, Ms Cantwell on behalf of the wife foreshadowed an application for her costs. In that context, she tenders a letter from Hogg and Reid to the husband of 14 August 2008, and I will direct that that exhibit remain upon the court file. 

4. It appears that the husband was given the opportunity to reconsider his position by that letter.  However, the position is that Ms Cantwell now seeks her costs arising from the husband's application filed 24 July 2008, and it appears to me that the application was wholly misconceived having regard to the findings I have made and the fact that Cronin J had earlier this year made final property orders.

5. I have explained the background to that view to the husband earlier this day in a transcript which, as I say, I will direct be placed upon the court file. I incorporate those matters into these reasons.

6. In dealing with the wife's costs applications Ms Cantwell has informed me that the husband’s application was not in fact served on her or her client.  She became aware of the existence of the application because the date for hearing the application was changed, and the documents were then copied by her at court, and she then took instructions from her client this morning at a conference, and has appeared this morning.  That is the basis of the wife's application for her costs, which she puts at $1050.

7. In response to the wife's costs application, the husband informs me that he is in no position to pay.  The wife's counsel informs me that the wife is in extremely impoverished circumstances.  It is not in my view a case where the making of the order should turn on the parties’ financial circumstances.  It was wholly ill‑conceived, this application, and the wife should not have been put to incurring any legal costs as a result of this application.

8. Regrettably she has.  The costs have been very reasonably minimised in my view; that is, the wife has not gone into extensive documentation.  She did prepare a response as I understand it, and her solicitor was prepared to argue the issue of res judicata effectively or the fact that Cronin J was functus officio, and that no further application could be brought in relation to these chattels, but I have to say that on balance, notwithstanding difficulties the husband may have in raising the money, I consider it appropriate to make a costs order in the circumstances.

9. Where I have not got detailed evidence before me about financial circumstances, I will err on the side of caution in the husband's favour and allow a longer period of time than would usually be allowed for payment of the costs, but I feel that the amount sought by the wife of $1050 in respect of her solicitor's actions in defending this case, including her attendance at court today, is an appropriate amount, and I will make an order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate: 

Date:  9 September 2008