VINICOMBE & VINICOMBE

[2018] FamCA 104

FAMILY COURT OF AUSTRALIA

VINICOMBE & VINICOMBE [2018] FamCA 104

FAMILY LAW – COSTS

Family Law Act 1975 (Cth) ss 79A , 117.

APPLICANT: Mr Vinicombe

RESPONDENT: Ms Vinicombe

FILE NUMBER: CAC 970 of 2016

DATE DELIVERED: 27 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 27 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Yeend & Associates

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The respondent shall pay the costs of the applicant’s application in a case filed 21 September 2017 as agreed or assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vinicombe & Vinicombe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 970 of 2016

Mr Vinicombe

Applicant

And

Ms Vinicombe

Respondent

REASONS FOR JUDGMENT

1. The only remaining outstanding matter in this case is the question of whether the respondent should be required to pay the costs of the applicant in relation to the s 79A application.

2. On 27 October 2017, following the non-attendance of the respondent in relation to the costs application, further orders were made that provided that if the respondent was to rely on her financial circumstances to resist a costs application then she was to file and serve a financial statement within a period of 14 days from that date.  She filed a financial statement on 14 November 2017 in compliance with that order.  The applicant was then given 14 days from then to file written submissions in support of an application for costs with the respondent given a further 14 days to provide written submissions.  The respondent was only required to file such submissions in the event that she sought to resist the application for costs.  It may be observed that the applicant filed written submissions in accordance with those orders but that the respondent has filed no further submissions. 

3. The applicant’s costs application follows his application for a variation of the final property orders, entered into by consent by the parties, pursuant to s 79A(1). The judgment handed down on 27 October 2017 sets out the relevant circumstances which do not require repetition here. In short, the application was necessitated by the respondent’s failure to comply with essential parts of the orders relating to the transfer of property. This had come about because the respondent was unable to secure the finance that she had thought she would be able to secure at the time of entering into the consent orders. Despite there being a timeframe within those orders for the respondent to comply within 42 days of the date of entry into the consent orders, (19 December 2016) the applicant extended further time to the respondent to enable her to comply. He did not file his application pursuant to s 79A until 21 September 2017. That is, the respondent was given ample opportunity to comply but did not do so.

4. In relation to the s 79A application a number of orders were ultimately made with the consent of the respondent which enabled the applicant to secure in his name the property that was to come to him, notwithstanding the failure on the part of the respondent to obtain finance for the property that was to come to her. While the applicant sought orders for the immediate sale of the property that was to come to the respondent, those orders were not made. Rather, the respondent was given an additional 12 months to obtain finance and to comply with the provisions in relation to that property within the orders.

5. The applicant now seeks his costs in relation to the s 79A application. He seeks that costs be fixed in the sum of $3,000 and asserts that the actual costs incurred by him are $3,000. In essence this is a request for an order for indemnity costs. None of the circumstances necessary to justify the making of such an order, nor even the identification that this constituted such an order, were addressed in the written submissions for the applicant. Accordingly, whatever other order might be made in respect of costs it will not be made in those terms.

6. The general regime in respect of costs are set out at s 117 of the Family Law Act 1975. The starting point is that each party will bear his or her own costs with the question of departure from that point and the determination of the appropriate order being governed by the matters set out at s 117(2A) of the Act.

The financial circumstances of each of the parties to the proceedings

1. Of those matters, the financial circumstances of each of the parties is known, as revealed by their financial statements.  The applicant’s financial statement filed 21 September 2017 reveals a surplus in his average weekly income over his personal expenditure each week.  He is currently employed as a public servant.  The financial statement of the respondent filed 10 November 2017 also shows a surplus of income over expenditure.  She operates a business and she properly disclosed in her financial statement that her income had increased since she had last provided material to the Court and that she had capacity to earn further income, having three available places to fill at her business.  Although her financial statement showed a surplus in the region of $950 there was an error in the completion of her financial summary.  The surplus is closer to $550, as her total personal expenditure did not pick up all relevant items in reaching its total. 

Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party

1. Neither party is in receipt of legal aid.

The conduct of the parties to the proceedings

1. As far as is relevant here, the applicant held the respondent on notice for a considerable period of time as to the prospects of seeking enforcement and delayed filing any application.  This manner of conduct of the proceedings gave the respondent the best opportunity to comply with the orders. 

Whether the proceedings were necessitated by the failure of a party to the proceedings comply with the previous order of the Court

1. In this case the proceedings were wholly necessitated by the respondent’s failure to comply.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. It could not be said that either party has been wholly unsuccessful.  While the applicant received orders that enabled him to have the benefit of the property that was to come to him, he was unsuccessful in seeking the immediate sale of the property that was to go to the wife.  She successfully secured a further 12 months to attempt to finance that property. 

Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. I was not advised of the terms of any such order but was advised as to repeated indications that enforcement may be sought. 

Conclusion

1. The fact that the proceedings were necessitated by the failure of the respondent to comply with the orders is a sufficient reason to depart from the usual position that each party shall bear his or her own costs.  The quantum of the costs sought on an indemnity basis does not appear at face to be excessively large and it may be anticipated that costs assessed on a party party basis would be even more modest. 

2. The conduct of the applicant in affording significant time to the respondent to comply with the orders before commencing litigation, the litigation being necessitated by the failure of the respondent to comply with the orders, where each of the parties has an excess of income over expenditure, justifies a costs order in the usual terms.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 February 2018.

Associate: 

Date:  27 February 2018