Willmann & Willmann (No 2)

[2022] FedCFamC1F 305

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Willmann & Willmann (No 2) [2022] FedCFamC1F 305

File number(s):	SYC 6037 of 2021
Judgment of:	REES J
Date of judgment:	11 May 2022
Catchwords:	FAMILY LAW – COSTS – Second and third respondents to pay the husband’s costs on a party and party basis as assessed or agreed.
Legislation:	Family Law Act 1975 (Cth) s 117(2A)
Division:	Division 1 First Instance
Number of paragraphs:	11
Date of last submission/s:	10 May 2022
Date of hearing:	In Chambers
Place:	Sydney
Counsel for the Applicant:	Mr Macauley
Solicitor for the Applicant:	Sim & Co Legal Services
Solicitor for the First Respondent:	Barkus Doolan
Counsel for the Second and Third Respondents:	Mr Cooper
Solicitor for the Second and Third Respondents:	Pigdon Norgate Family Lawyers

ORDERS

SYC 6037 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR WILLMANN

Applicant

AND:

MS WILLMANN

First Respondent

MR ANDREWS

Second Respondent

MS ANDREWS

Third Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	11 MAY 2022

THE COURT ORDERS:

1.That the second and third respondents pay the costs of the applicant in relation to the Response to an Application in a Proceeding filed 9 February 2022 on a party and party basis, as assessed or agreed, such costs to be paid within 28 days of assessment or agreement.

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 Willmann & Willmann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

REES J:

1. On 8 April 2022, I heard and determined an interlocutory application in relation to the joinder of the second and third respondents (“the respondents”) as parties to financial proceedings between the husband and the wife. The second and third respondents are the wife’s parents. The husband, on 18 October 2021, filed a Response to Initiating Application in which he sought orders against the respondents.

2. The respondents objected to being joined as parties and contended that the husband was required to seek leave to join them.

3. I determined that the respondents had been joined as parties by the filing of the Response to Initiating Application seeking orders against them and, further, that had it been necessary for the husband to seek leave to join them, then leave would have been granted.

4. Thus the respondents were wholly unsuccessful.

5. The husband now seeks that the respondents pay his costs in relation to those proceedings.

6. The husband and the respondents have been given the opportunity to file written submissions in relation to the issue of costs.

7. The determination is governed by the principles set out in s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) which provides:

   (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.

8. The husband relies on sub-paragraphs (c) and (e).

9. On behalf of the husband, it is submitted:

   …the Husband has been put to wholly unnecessary and unwarranted expense of agitating an issue of joinder raised by [the respondents] that was devoid of merit.

10. I accept that submission.

11. The respondents should pay the husband’s costs of the application as assessed or agreed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       11 May 2022