Werner & Werner (No. 2)

[2021] FamCA 157

FAMILY COURT OF AUSTRALIA

Werner & Werner (No. 2) [2021] FamCA 157

File number(s):	SYC 7563 of 2019
Judgment of:	REES J
Date of judgment:	24 March 2021
Catchwords:	FAMILY LAW – COSTS
Legislation:	Family Law Act 1975 (Cth) s 117(2A)
Number of paragraphs:	10
Date of last submission/s:	23 March 2021
In Chamber:	24 March 2021
Place:	Sydney
Solicitor for the Applicant:	Dorter Family Lawyers and Mediators
Solicitor for the Respondent:	Pigdon Norgate Family Lawyers

ORDERS

SYC 7563 of 2019

IN THE MATTER OF SCHAPPELER

BETWEEN:

MS WERNER

Applicant

AND:

MR WERNER

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	24 MARCH 2021

THE COURT ORDERS:

1.That within 14 days of this date, the husband pay the wife’s costs of the review of the registrar’s decision determined on 16 March 2021 in the sum of $2,039.70.

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

Rees J:

1. On 16 March 2021, I heard and determined a review of a decision of a Registrar. In those proceedings, the husband, Mr Werner, sought to set aside orders made in relation to instructions to be given to a single expert.

2. The application was opposed by the wife, Ms Werner.

3. The reasons for judgment delivered on 16 March 2021 set out the factual basis for the decision made dismissing the husband’s application.

4. The wife now seeks an order that the husband pay her costs fixed at scale in the sum of $2,039.70. That application is opposed by the husband. Both parties have filed written submissions and the matter is to be dealt with in chambers.

5. The application is governed by the provisions of s117(2A) of the Family Law Act 1975 (Cth) which are set out below:

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)       the financial circumstances of each of the parties to the proceedings;

   (b)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;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)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; and

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

6. The wife is not in paid employment and is in receipt of spousal maintenance of $850 per week. In addition, the husband pays the mortgage payments on the property which she and the children occupy. The husband owns and manages the business which is the significant asset of the marriage. The single expert remuneration consultant estimates the reasonable income to be ascribed to the husband’s position to be about $500,000 per annum. Whist I accept that the husband disputes the validity of the opinion of the single expert, it serves to illustrate the disparity in the parties’ respective financial positions.

7. Neither party is in receipt of Legal Aid.

8. The husband’s application was dismissed. He was wholly unsuccessful.

9. No offers of settlement were made.

10. In those circumstances it is appropriate that the husband pay the wife’s costs in the sum of $2,039.70 as she seeks.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       24 March 2021