West & West (No 2)
[2025] FedCFamC2F 56
•24 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
West & West (No 2) [2025] FedCFamC2F 56
File number(s): DGC 817 of 2023 Judgment of: JUDGE JENKINS Date of judgment: 24 January 2025 Catchwords: FAMILY LAW – COSTS – following final hearing in relation to validity of divorce order made in 2020 – application to declare divorce void dismissed – applicant seeking indemnity costs in circumstances where husband was both wholly unsuccessful and due to his conduct – limited information about each party’s financial situation – costs awarded on scale. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1 Items 7, 13, 14
Cases cited: Anison & Anison [2019] FamCAFC 108
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Division: Division 2 Family Law Number of paragraphs: 35 Date of last submission/s: 12 December 2024 Date of hearing: Determined in Chambers on the papers Place: Melbourne Solicitor for the Applicant: In Person Solicitor for the Respondent: In Person ORDERS
DGC 817 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WEST
Applicant
AND: MR WEST
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS THAT:
1.The husband pay to the wife the amount of $9,122.29 no later than 12 months from the date of these orders.
2.The wife’s application for costs filed 29 October 2024 be otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS:
This matter concerns the wife’s application for costs following the dismissal of the husband’s application to have their divorce declared void.
BRIEF BACKGROUND
The parties in this matter are Ms West (“the wife”) and Mr West (“the husband”).
The husband’s application to declare the divorce void came before me on 8 August 2024.
On 1 October 2024 I made orders dismissing the husband’s application and handed down my reasons for judgment. That judgment contains the history of the matter, which I shall not repeat here.
The wife filed her application for costs on 29 October 2024 along with a supporting affidavit.
The wife’s application was listed before me on 28 November 2024 via Microsoft Teams. The wife appeared on her own behalf. There was no appearance by the husband. On that day I made orders for the filing of written submissions.
Both parties filed written submissions in compliance with those orders.
The wife is seeking a costs order in the amount of $16,259.95 be paid by the husband within 14 days of an order.
The husband asks the court to dismiss that application.
RELEVANT LEGISLATION
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that subject to certain considerations that each party in a family law dispute is to bear their own costs.
The relevant considerations for the purposes of this application are contained in sub-section 117(2A) of the Act which states as follows:
(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.
Accordingly, I have considered each of those sections although I shall only refer to those which I consider to be relevant to the outcome of this application.
FINANCIAL CIRCUMSTANCES OF EACH OF THE PARTIES TO THE PROCEEDINGS
The wife submits that the husband has greater financial means, running a business and sponsoring overseas students. She submits that whilst she used to work part-time as an educator, she is now unemployed and is the sole carer and provider of financial support for the three children of the marriage although at least one of those children is now over 18 years. The two youngest children of the marriage were born in 2007 and 2009, being 17 and 15 years old respectively.
The wife does not say when she became unemployed and has not filed an updated financial statement. Her most recent financial statement filed on 3 May 2024 shows she had income of $1,300 with expenses of $2,000 per week. In that statement she states she received nil child support from the husband.
The husband says in his submissions that the wife earns $90,000 and he earns $50,000. He says he has closed his business but does not say when or why or where he now obtains his income from. He has likewise not filed an updated financial statement and the most recent financial statement filed by the husband in the divorce proceedings on 5 April 2024 shows his weekly income of $1,145.83 but with expenses of $1,377.64. In that financial statement he attests to paying $128.89 by way of child support for the children.
The husband also submits that the wife has access to his online banking app to pay for groceries and other expenses for the children and that he provides an allowance for the children. He also asserts the wife receives income from properties in Country C, that he has mounting debts, and that he is facing “the looming threat of bankruptcy.”
None of these assertions have been tested and I am unable to make any findings in regard to the matters in dispute.
THE CONDUCT OF THE PARTIES
The wife argues that the husband has “demonstrated an intention to harass” by filing numerous applications including not only what she deemed to be a “frivolous” application to declare the divorce order void, but also an application in the Magistrates’ Court for an intervention order which was struck out.
WHETHER ANY PARTY TO THE PROCEEDINGS HAS BEEN WHOLLY UNSUCCESSFUL IN THE PROCEEDINGS
The wife asserts in essence that the husband has been "wholly unsuccessful" in this case (with respect to the divorce proceedings).
The Full Court decision of Anison & Anison [2019] FamCAFC 108 considered the meaning of “wholly unsuccessful” and stated as followed:
37. It is well settled that paragraph (e) refers to a situation where proceedings as a whole have been unsuccessful. For example, where an application without merit has been dismissed.
(Emphasis added)
In this regard, it is evident the husband’s application with respect to the divorce order was dismissed in its entirety and therefore was wholly unsuccessful.
SUCH OTHER MATTERS AS THE COURT CONSIDERS RELEVANT
The application proceeded through the court system in a relatively straight forward manner. It did not appear to involve multiple interlocutory hearings or unnecessary adjournments.
DETERMINATION
Having taken into account all of the aforementioned considerations, I propose to exercise my discretion to award costs in favour of the wife. The husband’s application in relation to divorce was wholly unsuccessful and the wife has borne legal costs in responding to it.
However, it is evident the wife is seeking all of her costs of responding to the husbands applications, on a solicitor-client basis, or what is otherwise referred to as indemnity costs.
The leading case in this regard remains Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“Colgate-Palmolive”). In that case it was made clear that ordinarily the court will order costs on a party-party basis however at [24.5] the court set out the circumstances where the court may consider making an order for indemnity costs as follows:
…I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records).
The wife does not specifically address any of the criteria in Colgate-Palmolive, however, it is clear she argues that she should be paid her costs in their entirety due to the husband’s conduct, in particular based on bringing multiple sets of proceedings against her, and, because of credit findings that were made in the divorce proceedings.
However, I am unable to take into account the Magistrates’ Court proceedings as the circumstances in which they were brought and/or struck out, even if relevant, were not the subject of any cross-examination in this court.
Furthermore, although the husband’s credit was in question as his evidence was “inconsistent and inherently unbelievable” this did not mean I automatically accepted all of the evidence of the wife. In particular, I did not accept the wife’s asserted date as to the parties’ separation.
In any event, I am not satisfied this case falls into the small category of cases where indemnity costs should be awarded.
In all of the circumstances of this case, I am minded to order costs based on the court scale found at the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) at Schedule 1 (“the Schedule”).
I note however that the husband’s initiating application also concerned parenting and property matters which were not part of the discrete hearing on the issue of the divorce. As such, some of the costs of the wife in preparing for the first court event were concerned with responding to that application. I also note that she engaged lawyers primarily based in Sydney resulting in additional disbursements which would not have otherwise been incurred if she used solicitors in Melbourne.
Taking into account all of the available information I determine the appropriate costs on the scale of costs according to the Schedule to be:
Item 7 Preparation for final hearing – one day matter $5,353.45 Item 13(c) Daily hearing fee for a full day hearing $2,512.56 Item 14 Advocacy loading – 50% of the daily hearing fee in item 13 $1,256.28 Total: $9,122.29
The husband states he has income of $50,000. I have no current evidence as to his expenses and no evidence at all about his day-to-day expenses as he did not complete the part N in the financial statement he filed. However, even if a party is entirely impecunious this is not itself a reason not to make a costs court order.
On the limited information available, I am satisfied the husband would be able to meet the cost order if given sufficient time to pay. I will grant the husband twelve months as of the date of the orders to make this payment to the wife.
For all of these reasons, I make the orders as set out at the commencement of this judgment.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 24 January 2025
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