Wingham and Woden (No. 2)

[2008] FamCA 931

FAMILY COURT OF AUSTRALIA

WINGHAM & WODEN (NO. 2) [2008] FamCA 931

FAMILY LAW – COSTS – order for costs following hearing of application for property settlement - consideration of s117(2A) factors – assets of the wife exceed those of the husband - offer in writing to settle the proceedings – order for the wife to contribute towards the husband’s costs.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wingham

RESPONDENT: Ms Woden

FILE NUMBER: PAC 2202 of 2007

DATE DELIVERED: 20 October 2008

PLACE DELIVERED: Sydney

JUDGMENT OF: Justice Fowler

JUDGMENT DATE: Written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Thistleton, Counsel, submitted on behalf of the applicant husband

SOLICITOR FOR THE RESPONDENT: Ms O’Halloren, Solicitor, submitted on behalf of the respondent wife

Orders

1. The wife pay to the husband on account of his costs of an incidental to the proceedings heard before me on 15 and 16 April 2008 and the application of the husband for costs herein the total sum of $19,000 within 28 days of the making of this order.

IT IS NOTED that publication of this judgment under the pseudonym Wingham and Woden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2202  of 2007

MR WINGHAM

Applicant

And

MS WODEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application by the husband in which he seeks an order that the wife pay his costs in relation to proceedings before the Court, being the application of the husband for alteration of property interests, the hearing of which took place before me on 15 and 16 April 2008 in Sydney.

2. In that matter I delivered judgment on 30 April 2008 and at that time I adjourned the consideration of any application for costs to a date to be fixed.

3. On 3 September 2008 the applicant husband filed a response to an application brought by the wife for a stay of proceedings pending appeal in which he also sought an order for the costs of the hearing on 15 and 16 April 2008.  He filed an affidavit of his solicitor, a financial statement and his own affidavit.

4. On 8 September 2008 that application was considered and I made directions that the wife file any submissions she wished to make and any affidavit material on which she wished to rely within 21 days of that date.

5. On 23 June 2008 the wife filed an affidavit in support of her stay application and on 29 September 2008 filed another affidavit upon which she wished to rely.  Although she did not file any other submissions, I have taken her affidavits as being a combination of evidence and submissions in relation to the application.

Background Facts

1. The order made by the Court in the proceedings was for the payment by the wife to the husband of an amount of $300,402.  The husband received certain personalty not in his possession and was to otherwise retain such items of personalty as were in his possession.  The wife retained her interest in a private company and had transferred to her two properties and otherwise was declared the owner of items of personalty.  The wife has appealed from those orders but I am asked nevertheless to determine the issue of costs.

Section 117 considerations

1. The Court has a broad discretion as to the orders that it makes for costs and that discretion is set out in section 117 of the Family Law Act 1975 (“the Act”). In the consideration of the exercise of that discretion I am obliged to consider the matters set out in section 117 (2A) of the Act. Those matters are set out in the following sub lettered sub sections of that section namely:

(a)    the financial circumstances of each of the parties to the proceedings

1. In his affidavit filed on 3 September 2008, the husband deposes that he was employed on a casual basis as a forklift driver and storeman at the rate of $22 per hour for a minimum of 20 hours per week.  As a result, he says, of a recent departure from the wife’s residence he is currently sharing accommodation with his daughter aged 20 years and her daughter, (his granddaughter) who is aged under 6 months.  They are residing in rental accommodation for which a rent of $265 per week is being paid. 

2. The husband deposes in his financial statement that he has a total average weekly income of $278, and that his expenditure exceeds his income.  I have however in these proceedings, made an order for the stay of the operation of my orders made in the proceedings conditional upon the husband having the benefit of $135,000, that being part of the amount ordered by me on the hearing.  I do not know whether it has been received.  If it has it would no doubt provide him with some benefit financially. 

3. It is, however, the fruits of the litigation and I have to determine whether those fruits should be accompanied by the costs, or any of them expended by him, in getting to that point.  Thus, other than in a general way, I do not intend to take it into account.  In the hearing the evidence was that the income of the wife exceeded the income of the husband.  The assets of the wife, even following the order, exceed those of the husband which are specified in his financial statement and before any payment of part verdict at $114,720, of which $78,000 is superannuation.  His liabilities amount to $98,000.

4. Although the wife was directed to file any affidavits on which she wished to rely she has not filed any other statement of her financial circumstances.

5. Her affidavit filed on 29 September 2008 deposes in the following terms:

   “The overall effect of the Orders of the court is that the wife assumes all the liabilities and burden of obtaining finances for the payment of the husband whilst the husband only obtains the financial benefits.  Such is not just and equitable to the wife, as the respondent wife is not in a financially strong position.”

6. The question of the justice and equity of my decision is not in issue in the current application since I have already found it to be so.  That is a view which may not be agreed with in another place.  The generality of the assertion “the wife is not in a financially strong position” is such as to give it no probative value.  Her appeal proposes a payment to the husband of $200,000.  An amount of $135,000 has been ordered to be paid as a condition of the stay granted.

7. The wife goes on to say:

   “The respondent has many outgoing expenses relating to [W] Pty Ltd and not much money in cash to bear the costs of the applicant.”

   Once again, the generality of the assertion, which is in the nature of an opinion, is such as to make it evidentially useless.

8. The wife, finally on the question of her financial position, says that the only security she has available is her interest in a company which she owns with another shareholder and that she has no equity in the properties which were hers pursuant to the order.  Once again, the generality of the assertion makes it of no benefit in determining her actual financial position, and her final complaint that the order is unjust is unhelpful.

(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

1. There is no evidence that either party is in receipt of legal aid.

(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

1. Apart from the making of the offers in these proceedings, nothing has been brought to my attention under this heading which would have any decisive effect in my deliberations.

(d)     whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. This does not apply.

(e)    whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. The husband has procured an order less than that he proposed for settlement but in terms of the litigation he came very close to his goal, whilst the wife was obliged to pay twice what she had offered.

(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

1. In this case it is common ground that in December 2007 the husband made an offer to settle the proceedings on payment by the wife to him of an amount of $330,000.  In the event the order amounted to about ninety one per cent of the amount he proposed by way of settlement.  The offer of the wife to settle was at best one half approximately of the amount ordered by me to be paid to the husband.  She offered by letter to the husband dated the 21 December 2007 an amount of $150,000, less some unquantified amounts to be determined.  It is clear having regard to the result that the offer of the wife afforded the husband no alternative but to bring the matter to Court.

(g)    such other matters as the Court considers relevant

1. The requirement of the Act for offers to be considered and the requirement of the Court that offers of compromise be filed and maintained, is a deliberate policy designed to encourage those who engage in litigation to carefully consider the options available to them and not to require a party to unnecessarily undertake litigation, which is an expensive process. In this case the wife’s offer did not betoken a sufficient care in giving attention to the consequences of a failure to give the matter serious consideration, not only for herself but in the costs the husband was obliged to incur as consequence. Given the husband’s proposal and his financial circumstances, I believe it to be just and equitable that the wife contributes to the husband’s costs.

2. I am informed by counsel for the husband that his fees amount to $10,500 and the husband’s solicitor deposes that his costs charged to his client are $23,373.40 in total.  I propose to make an order that the wife contribute to those costs the sum of $19,000.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  20 October 2008