Winton and Winton (No 2)

[2016] FamCA 266

FAMILY COURT OF AUSTRALIA

WINTON & WINTON (NO 2) [2016] FamCA 266

FAMILY LAW – COSTS – between parties – where the wife seeks an order for costs – where there is no appearance by the husband – where the husband has been wholly unsuccessful – where there was an offer of settlement – where the husband is ordered to pay the wife’s legal costs from a date considered just and equitable by the Court.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Winton

RESPONDENT: Mr Winton

FILE NUMBER: LNC 350 of 2012

DATE DELIVERED: 13 April 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Welch

SOLICITOR FOR THE APPLICANT: Philip Welch Barrister & Solicitor

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The husband pay the wife’s legal costs of and incidental to these proceedings as and from 5 February 2015 (not including any costs which are the subject of the Costs Assessments Order made on 12 February 2015) such costs to be as agreed and in default of agreement within thirty [30] days as assessed UPON NOTING this is to include the wife’s costs of the Application in a Case filed on 23 March 2016 for costs.

2. The wife’s Application in a Case filed on 23 March 2016 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Winton & Winton (No2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: LNC 350 of 2012

Ms Winton

Applicant

And

Mr Winton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an Application in a Case filed on 23 March 2016 seeking orders in relation to costs.  The application is brought by the wife, supported by her affidavit filed on the same date.  The matter was listed for hearing before me today.  I am told the husband has been served through his address for service.  He has not attended today.  The material upon which I am relying is not only the affidavit of the wife filed on 23 March 2016, but all of the material which was before me and upon which the recent judgment and property settlement orders were based (those orders being made on Monday, 29 February 2016).

2. The provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, in the ordinary course, each party should bear their own costs but if the Court is considering making an order for costs then the Court must take into account the provisions in s 117(2A). The financial circumstances of the parties are those as set out in my judgment of February this year as altered by the orders made on 29 February 2016, which provide the wife with significant assets.

3. I also have before me today the wife’s affidavit, which includes a reference to the fact that she continues to be in receipt of limited income by way of pension and remains the carer for the child, J.

4. There is no new material filed by the husband so I can assume that he continues to be an arborist and have access to income from his business. 

5. The financial circumstances of the parties are therefore such that the wife has greater capital assets but the husband has greater ongoing capacity to earn an income than the wife. 

6. The factors in relation to legal aid and (c) and (d) of s 117 are not relevant.

7. I am referred to the Amended Initiation Application of the wife filed on 14 July 2015, which was the Initiating Application before me for determination at the trial which sought orders which are very similar to the orders which I made.  I accept the submissions of the counsel that this was save and except for questions of drafting.

8. The husband’s opposition to those orders in the context of the previous orders of Justice Benjamin (setting aside the undefended orders) needs to be taken into account. 

9. Taking into account, therefore, the Amended Initiating Application filed on 14 July 2015, I accept that the husband has been wholly unsuccessful in his opposition to the orders sought by the wife since that time. 

10. In relation to the question of offers under the provisions of s 117(2A)(f), I have before me now the annexures to the wife’s affidavit, showing offers made in February 2015, being 4 February 2015 and 20 February 2015, which again are offers very similar to the outcome.

11. It is obvious that the husband rejected those offers. 

12. In relation to the overall assessment, therefore, and notwithstanding the position of the wife from a capital asset financial position, I am satisfied that the offers made by the wife in February 2015, the orders she sought in the Amended Initiating Application in July 2015 and the fact that the husband was wholly unsuccessful in pursuing and resisting the offers made by the wife are a sufficient basis to find that it is just and equitable to make an order for costs for the wife against the husband. 

13. The issue, however, which remains to be considered, is the time from which those costs should run.

14. The application before me seeks that the costs be paid from 12 November 2014.  I do not consider that that would be just and equitable.  I consider that the earliest time which would be appropriate to commence payment of the costs sought by the wife would be February 2015.  This takes into account the offers in the correspondence, which are then substantially copied into the Amended Initiating Application, filed in July 2015. 

15. I have given consideration to restricting the costs to 14 July 2015 but consider that the offers made in February 2015 are significant enough to warrant that the costs run from that date.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 April 2016.

Associate: 

Date:  22 April 2016