Wilkes and Bolton

[2017] FamCA 1162

FAMILY COURT OF AUSTRALIA

WILKES & BOLTON [2017] FamCA 1162

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilkes

RESPONDENT: Ms Bolton

FILE NUMBER: MLC 10766 of 2017

DATE DELIVERED: 7 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: Stephen Farmer

THE RESPONDENT: In Person

Orders

1. That the wife pay the husband’s costs fixed in the sum of $5729.

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 Wilkes & Bolton 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 MELBOURNE

FILE NUMBER: MLC 10766 of 2017

Mr Wilkes

Applicant

And

Ms Bolton

Respondent

REASONS FOR JUDGMENT

1. In the Judicial Duty List on 9 May 2018, Mr Wilkes (“the husband”) and Ms Bolton (“the wife”) required the court to determine a number of issues but in particular, exclusive occupancy of a property in Suburb C and the husband’s application for spousal maintenance.  The hearing was limited in its capacity because of the size of the list but also because the parties wanted the matter dealt with on the affidavit material and submissions.  At the conclusion of the hearing, both parties sought costs and as paragraph [42] of the reasons for judgment indicated, rather than bring the parties back, I said I would deal with any application for costs by written submissions which were to be filed within 14 days and any replies within 7 days thereafter.

2. Paragraph [4] of the orders of 10 May 2018 which was the day upon which the reasons for judgment were delivered along with the orders, provided:

   [4]Should any party seek costs arising out of these interim proceedings, that application shall be in the form of a written submission to be filed and served by no later than 4.00pm on 24 May 2018 and any reply thereto be filed and served by 4.00pm on 31 May 2018 after which, any such determination shall be considered and dealt with in chambers.

3. The husband filed his written submissions within time.  The wife, albeit with lawyers acting for her, filed a submission in reply late but I have accepted on the basis that no prejudice was caused to the husband. 

4. She said that this was a response to the husband’s application apparently as she saw it, to reverse an earlier decision that each party pay their own costs.  As I have elsewhere set out in these reasons, that is not what is happening.

5. As indicated, the substantive proceedings concerned two main matters although there were others, and the relevant orders made were:

   [1]By 4.00pm on Friday 18 May 2018, the wife provide the husband with all things necessary to enable him to have sole occupancy of [B Street, Suburb C], until further order.

   [2]That the wife pay maintenance to the husband of $815 per week until further order.

   [3]That the wife also pay as maintenance for the husband the following payments in respect of the [German] motor car ML 350:

   (a)The lease payments as they fall due;

   (b)The registration of the vehicle; and

   (c)The insurance on the vehicle.

6. A cursory reading of the reasons published on 10 May 2018 will show that the husband asserted the parties had assets with a net value of almost $4 million and a similar amount in a self-managed superannuation fund.  Despite that, when the wife filed her formal response, the orders she pursued were not particularised.  The wife’s counsel indicated that that would be rectified for the forthcoming conciliation conference.  The absence of particularisation means that the court does not understand the parameters of the dispute and in circumstances where there is little argument about the assets themselves, it is hard to understand why particularisation cannot occur.  That absence makes the focus on settlement very difficult and precludes the court from having any meaningful involvement in working out how such a dispute should be handled.  That was certainly the position here.

7. The wife is a medical practitioner who lives in Queensland and the husband lives in Melbourne with his parents.  One of the disputes was about a home in Suburb C which is currently vacant and the husband wanted to return there but the wife opposed that happening.  Her opposition was hard to understand as I indicated in the reasons for judgment. 

8. The wife currently earns $10,000 per week and has an excess of income over expenses whereas the husband has no income.  That gave rise to his application for spousal maintenance.  I accepted that he had not been in the workforce for many years but was planning to return to study.

9. In respect of the vacant home, I accepted that the wife would only be “marginally inconvenienced” by being excluded from it pending trial and there was no other basis for the husband not to have access to it.  It was not being rented out.

10. In respect of spousal maintenance, the wife’s argument that the husband did not meet the threshold for entitlement.  If that was so, I found it curious why the wife did not address his assertions about his background of being out of the workforce and his need to retrain.  The wife had said she did not know why he was unemployed.

11. In respect of spousal maintenance, I made the following findings:

    [29]The husband has no income and it is clear that he cannot adequately support himself without either employment or maintenance. As the wife was aware of this evidence for some weeks and had not raised the issue until she filed her affidavit on the day before this hearing, I found her approach perplexing. No doubt she knew that, in the duty list, there would be inadequate opportunity to cross-examine the husband and the matter would have to be determined “on the papers”. Her complaint that he had not provided corroboration of his status was a bit cute in the particular circumstances the details of which she well-knew at separation and for the many years before that.

    [30]There is therefore no reason for me to doubt that the husband does not have employment and is desirous of retraining so that he can obtain employment.

12. The wife’s submission was:

    ·A costs order would be “unfair and unnecessarily aggressive”;

    ·She was “very poorly represented at the hearing” and that a number of matters that should have been brought to the court’s attention were ignored;

    ·The father had sought to create an impression that she was deliberately seeking to stall or frustrate the process and had engaged in various legal tactics to achieve that and she denied that to be the case;

    ·Any reasonable person would accept that for the past 15 months, she had been under tremendous strain and difficulty in trying to pull together “the mess” the husband left her and that a financial settlement could not be reached until the business affairs had been reconciled which she said was proving to be time-consuming and costly.

13. The submission of the wife went on to deal with matters that were clearly not in her affidavit material and undoubtedly not before the court.  Those are matters that should not be taken into account in this application for costs.  She said, in all the circumstances that she had outlined:

    It is my submission to you that this application for an award of costs against me is simply a nasty piece of work from a team that is intent on making things as difficult as possible for me – while pleading to the court that I am being unnecessarily obstructive.

14. The court can only deal with the matters as it finds them.  As indicated in these reasons, the mother did not engage with the process properly and whether that was her lawyer’s fault or not is a matter that the court cannot make findings about.  If she has a complaint against her lawyers, it can be taken up at an appropriate time with an appropriate body.  There is no reason in this case whey the court was not given proper information.  The wife went on to say that all of her allegations could be supported by “testimony or documentation” if the court wished. 

15. The function of the court is to quell any controversy.  The parties can engage in negotiations and mediations outside of the court but where there is a dispute, it is the function of the court to decide it on the evidence presented and the submissions made.  Again, if the material was lacking or the submissions were not put properly, that is hardly a problem that the court can deal with here. 

16. The wife’s submission went on to talk about the psychological and physical violence in the home, the impact on the children, the failure of business responsibilities, the husband’s dismissal as a company director and the like.  All of those matters were factual matters about which the evidence could have properly been presented.  Again, to the extent that it was not, it is a matter that the wife needs to take up with someone else. 

17. Under the heading of “Ability to support himself”, the wife said that the husband has extensive experience in corporate pharmacology and small business management and could easily secure employment if he sought to do so.  This is an endeavour by the wife to put material before the court that was not at the time.  In my view, it is not relevant to the application for costs.

18. Whilst I have some sympathy for the wife’s position endeavouring to conduct this litigation as she is without the assistance of lawyers that she thinks are competent, I cannot make any finding in relation to the capacity of her lawyers to present her case properly as they have not been given the opportunity to be heard and it would be inappropriate for me to comment otherwise. However, in all the circumstances, the wife’s submission did not address the pertinent points which were the matters set out in s 117 of the Act.

19. Accordingly, I record for the sake of these reasons that I have read all of the material but do not find it relevant to the determination before me.

20. It is not controversial that s 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify a departure from that principle. It was submitted on behalf of the husband that the wife had terminated his access to bank accounts and had not responded to his request for an explanation as to why he should not be reinstated. When the husband issued proceedings, the solicitors then advising the wife declined to accept service. That no doubt delayed the proceedings. A case assessment conference was fixed for January 2018 but by virtue of its contentious nature, the hearing had to be placed before the court and the earliest available opportunity was May 2018. All of those matters are relevant to the question of a litigant’s conduct in not addressing what otherwise on the face of it, appears to be a very simple case.

21. At the case assessment conference in January, the wife was ordered to file a response.  She actually attended the January conference when she probably should have been excluded on the basis that she had not filed any material.  She still failed to file material as required by the orders of the registrar. 

22. The inattention to detail left the husband with no alternative other than to bring on the application in a case that came before the court in the Judicial Duty List in May. 

23. In my view, the approach taken by the wife justifies a departure from the principle that each party shall bear their own costs.

24. Before any court can make an order for costs however, it must take into account the matters set out in s 117(2A) of the Act.

25. In this case, there is hardly any controversy about the disparity of the parties’ financial circumstances.  The wife has a significant income and exercises her profession whilst the husband has no income and is hoping to retrain.  His current position arises out of the role that he seems to have fulfilled during the marriage although if that is not a correct inference to be drawn, the responsibility for that lies with the wife who did not present any significant material otherwise.

26. In terms of the financial positon otherwise, the wife is in a much stronger position than the husband and her inattention of detail in relation to what sort of final orders should be made has not assisted.

27. There are no legal aid considerations here nor could there be having regard to the financial entitlements of the parties to assets. 

28. The wife has been wholly unsuccessful having opposed all of the orders sought by the husband of significance and the reasons make clear that the court was perplexed as to why she had adopted the approach that she had to the substantive issue more so than the interim issues.  In my view, this is a case where the court should make an order for costs on the basis that the husband would otherwise be out of pocket.  Orders for costs are not intended as a punishment but rather to alleviate the unnecessary expense incurred in pursuing a legal right and the husband has been seen to be in that position here. 

29. The only costs sought by the husband were said by his counsel to be drawn according to scale and having examined the amount sought and the nature of the documents on the file, I accept that those costs do fit within the scale.  The costs associated with the proceedings up until the point at which the submissions relating to costs were prepared amount to $4849 and the preparation of the submissions has been claimed at $880.  Both of those sums are reasonable in the circumstances. 

30. Accordingly, the wife is to pay the husband’s costs fixed in the sum of $5729.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 June 2018.

Associate: 

Date:  7 June 2018