West & West
[2021] FedCFamC2F 684
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
West & West [2021] FedCFamC2F 684
File number: MLC 11526 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – COSTS – Where wife files interim application – where parties resolve interim application with part property settlement – where wife seeks costs – where husband opposes costs – order for fixed costs payable made. Legislation: Family Law Act 1975 (Cth), s.117 Division: Division 2 Family Law Number of paragraphs: 10 Date of hearing: 21 December 2021 Place: Melbourne Solicitor for the Applicant: Mr N Pastro (solicitor) Counsel for the Applicant: JP Legal Counsel for the Respondent: Mr W Henwood Solicitor for the Respondent: Pearsons Lawyers Pty Ltd ORDERS
MLC 11526 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WEST
Applicant
AND: MR WEST
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS THAT:
BY CONSENT:
1.The Husband and Wife do all acts and things and execute all documents necessary to cause $20,000.00 to be released to each of the Husband and Wife from the funds held in trust for them by the Husband's solicitors as part property settlement as soon as possible.
BY THE COURT:
2.The Husband pay the Wife's costs directly to her solicitor fixed in the sum of $3,300.00 (including GST) to be deducted from the Husband's share of the part property settlement provided in order 1 herein and such payment take place as soon as possible.
AND THE COURT NOTES THAT:
A.The parties expect order 1 to be completed by close of business on 23 December 2021 at the latest.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym West & West has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled reasons of a judgement delivered ex tempore on 21 December 2021. The applicant wife is Ms West (‘the Wife’) and the respondent husband is Mr West (‘the Husband’).
I am going to order costs payable in the sum of $3000 and that those costs be paid by the Husband, as soon as possible, and deducted from the $20,000 part property settlement ordered in these proceedings and paid forthwith to the Wife's solicitor.
My reasons for ordering the costs are these. I take into account section 117(1) of the Family Law Act 1975 (Cth) (‘the Act’), which is the starting position that each party shall bear their own costs, but that is subject to section 117(2A).
The financial circumstances of the parties are such that the Husband says he has not worked for 18 months. The Wife is not working, and is in receipt of social security only, and has to pay rent for her premises. Neither party is legally aided.
I must take into account the conduct of the proceedings, which includes, in this case, the request for emergency funds made on 3 December 2021, where the Wife's immediate circumstances were described as impecunious at best, and that appears to be or is an accurate description of her immediate financial circumstances, notwithstanding that sooner or later she will have a property settlement of some significant amount. There was no response to that request.
On 10 December 2021, there was another request for funds, and there was no response to that. On 13 December 2021, there was another request. Notwithstanding that it was 10 days after the initial “respond in three days” request, a further 24 hours was provided. There was no response to that request. On 15 December 2021 the Wife's solicitor issued these proceedings, and arranged for them to become before the Court urgently.
Mr Henwood, for the Husband, has argued with some skill that I should not make the costs order because, at the same time as those proposals were being made and not responded to, there was ongoing communications to attempt settlement overall, and that the matter was, in substance, settled or almost settled save for what was regarded as a small matter by Mr Henwood.
However, I cannot and will not refer to the 'without prejudice' negotiations. I do not yet know the extent to which it is reasonable or unreasonable not to settle those proceedings on the state of negotiations. I note that the application issued on 15 December 2021 provided for both parties to receive $20,000 as part property settlement. There is a long marriage, and there is no argument that both parties will receive at least $20,000 in whatever the property settlement is. The funds available in trust are something in the order of $700,000.
The parties married in 1988, and separated 32 years later, in January 2020. The application was entirely successful, and there was no indication that it would be agreed to until after the matter was stood down this morning, where, of my own motion, I determined to stand the matter down to give the parties an opportunity to settle the matter overall. I take into account, under 117(2A)(g), that, on the Husband’s case, he is not working, and he has no money in the bank, and he, too, would need some money to get him through until trial.
Implicit in my order for costs is a finding that the Husband should have agreed to this request regardless of how finely balanced the property settlement negotiations were. Though tempted by Mr Henwood's submissions, I ultimately do not accept them. I add in settling these reasons the substance of my discussion in the running as to the quantum of costs sought. The costs sought are less than scale and are reasonable in the circumstances.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 1 February 2022
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