Westmore and Westmore (No. 2)

[2007] FamCA 456

FAMILY COURT OF AUSTRALIA

WESTMORE & WESTMORE (NO. 2) [2007] FamCA 456

FAMILY LAW – COSTS – Between parties

APPLICANT: Mrs Westmore

RESPONDENT: Mr Westmore

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2638 of 2005

DATE DELIVERED: 14 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bradshaw

COUNSEL FOR THE RESPONDENT: The husband in person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. The husband shall pay to the wife costs fixed at $8000 by 4 pm, 14 April 2007.

2. There be a transcript of my reasons for judgment and that it be placed on the court file and a copy sent to each party.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2638 of 2005

MRS WESTMORE

Applicant

And

MR WESTMORE

Respondent

REASONS FOR JUDGMENT

1. I gave judgment in this case last week.  Counsel for the wife heralded a costs application at that point.  As the husband was representing himself, it was agreed that the wife's argument for costs would be put in writing and served, so that the husband would have a chance to look at the legislation, understand the arguments that were being put, and organise his thoughts and his response.

2. Section 117 of the Family Law Act governs costs. Each party shall bear his or her own costs unless the court determines that there are circumstances justifying it in ordering costs. It is a discretionary matter but the court must take into account the matters set out in s 117(2A) of the Family Law Act. They are summarised accurately in the wife’s summary of argument.

3. In this case, there are two costs issues.  One is as to the costs reserved in interim proceedings in October-November 2006.  The other is as to costs overall.  Both are disputed.  I will deal first with the October-November 2006 costs that were reserved at that time.

4. The wife’s application in the October 2006 interim proceedings was to restrain the husband from selling shares and using assets.  It was entirely reasonable that she brought those proceedings in the context of her genuine and justifiable concerns that the husband had not been obtaining proper rental on a particular property or properties at certain points, that one property had been transferred to the parties’ teenage son I, and that another property had been sold or was under contract of sale to the husband’s sister on a $50 deposit.  She had no alternative but to bring proceedings, with the genuine concern that assets would otherwise be dissipated before the hearing.  She should receive her costs in relation to those applications and in a moment I will return to the quantity.

5. In terms of the overall costs, I take into account first the parties' respective financial positions.  Following this property settlement each party will have good resources.  The husband is in a slightly better position, as I have observed in my findings, but both parties are in reasonably solid positions.  Neither had legal aid.  The husband paid some legal fees himself in the past, but of course has no legal fees in relation to the hearing or some of the more recent stages of the litigation.

6. It was submitted for the wife that when I look at the parties’ conduct, I should take into account that the husband failed to produce various documents.  That did not strike me as a significant concern or impediment in the course of the hearing.  I am more inclined towards accepting the husband’s assertion that he produced what he was asked to produce and I really would not take that aspect any further.

7. In terms of one party being wholly successful, the wife says that she was, and that the husband's response had offered her very little.  I observe that the wife's application in which she sought that she retain E property, and shares, was also not one upon which she was entirely successful.  In fact, which party would retain the home was a substantial and heart-felt issue.  The structure of my orders is designed to enable the husband to keep it if possible, although it may end up in the wife’s hands, if he does not pay her out.  In terms of the way the case was run for the wife, she was otherwise not successful on her contributions argument, nor completely successful on the s 75(2) factors, and what appeared on her case to be a big issue about a $44,000 loan ultimately came to very little in terms of my findings.

8. The wife relies on the fact that she made an offer of settlement to the husband. He agrees he received it in December 2005.  In it, she proposed a 55:45 split of assets in her favour.  It is argued on her behalf that she ultimately received more than that.  Although in the hearing her case was put on an entirely different basis from previously, it is true that she has ultimately received more than the offer would have then given her. 

9. The offer of settlement is a very important consideration, but it is not the only consideration, and it does not hamper or hamstring me in the exercise of my discretion.  I have to take into account a range of matters in exercising my discretion, including that the husband does have a very substantial sum of money to find to pay out the wife.  He must find money for the costs in relation to the October proceedings and I take into account that once this case was run before me, the wife put her case higher than in the previous offer, and on the way she put her case, she did not wholly succeed.

10. I am not prepared to order costs in her favour for the hearing, but as to costs prior to that, whilst I am not going to order the husband to meet the entirety, I do not propose to overlook the fact of her offer of settlement.  I propose ordering that the husband meet $5000 of the wife's costs, being only a part of the costs incurred by her prior to hearing.  The only figure that I have heard in relation to her costs is around $54,000.  I have proceeded on the basis that the majority of that sum will relate to the four-day hearing.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  14 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WESTMORE & WESTMORE