Wyman and Wyman

[2019] FamCA 652

FAMILY COURT OF AUSTRALIA

WYMAN & WYMAN [2019] FamCA 652

FAMILY LAW – COSTS – where the wife seeks costs against the third respondent – consideration of circumstances justifying the making of a costs order – where the applicant’s application was necessitated by the failure of the third respondent to comply with previous orders – costs ordered in accordance with Schedule 3 of the Family Law Rules 2004 (Cth).

Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth)
APPLICANT:	Ms Wyman

RESPONDENT: Mr Wyman

SECOND RESPONDENTS: Mr Medwin and Ms Medwin

THIRD RESPONDENT: B Pty Ltd

FILE NUMBER: MLC 5095 of 2016

DATE DELIVERED: 13 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McDonald

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

THE SECOND RESPONDENTS: No appearance

THE THIRD RESPONDENT: No appearance

Orders

1. That the applicant have leave to withdraw the Application in a Case filed 25 July 2019 (“the Application”).

2. That there be liberty to apply with respect to the Application on short notice.

3. That the third respondent pay the applicant’s costs fixed in the sum of $738.34, such payment to be made within 30 days. 

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 Wyman & Wyman 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 5095 of 2016

Ms Wyman

Applicant

And

Mr Wyman

Respondent

And

Mr Medwin and Ms Medwin

Second Respondents

And

B Pty Ltd

Third Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Wyman comes before the Court today in a judicial duty list upon an Application in a Case filed on behalf of the applicant on 22 July 2019.  That application was supported by her affidavit also filed 22 July 2019.

2. The applicant’s application seeks to enforce final orders made on 5 April 2019.  Paragraph 2 of those orders provided that the third respondent, B Pty Ltd, pay or cause to be paid to the applicant a fixed sum of $6236 together with interest accrued.  The position of the applicant was that the third  respondent had not complied with that order.  Therefore the applicant brought this application seeking enforcement. 

3. This morning, prior to the commencement of the hearing, the applicant received notice that in fact the third respondent had deposited the amount ordered to be paid into its solicitor’s trust account.  It is on that basis, that the applicant now seeks an order that she have leave to withdraw her Application in a Case.  She also seeks an order that she have liberty to apply on short notice in the event that the funds that the third respondent said had been deposited, do not clear and find their way into her account. 

4. Given the history of the matter, which include previous representations by the third respondent that those payments have been made, I am satisfied that the orders as sought by the applicant are appropriate. 

5. The applicant also seeks an order that the third respondent pay the costs of her Application in a Case filed 22 July 2019. She seeks that the third respondent pay her costs fixed in the sum of $738.34. That is the amount which, she says, she is entitled to under the schedule of costs provided in schedule 3 of the Family Law Rules 2004 (Cth) (“the Rules”). The quantum is calculated on the basis of allowance for the drafting of her Application in a Case and affidavit pursuant to item 101 of the scale, the filing fee for the Application in a Case and allowance for an appearance this morning at one and a half hours. Those fees total the amount sought.

6. The general rule is that each party to proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”), shall bear their own costs. Section 117(2) of the Act provides that, if the court is of the opinion that there are circumstances that justify it doing so, the court may, subject to the provisions of subsections (2A), (4), (4A) and (5) and the rules of Court, make such order as to costs and security for costs as the Court considers just. Section 117(2A) sets out the matters that the Court should have regard to in considering whether to make an order for costs.

7. Those circumstances include the financial circumstances of each of the parties, 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, the conduct of the parties to the proceedings in relation to the proceedings, including without limiting the generality, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer question, admissions of fact, production of documents and similar matters. 

8. The fourth matter to be considered is whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.  It is that provision that the applicant in particular places reliance upon in support of her application for costs.  Other relevant matters are whether any party to the proceedings has been wholly unsuccessful in the proceedings.  Clearly that matter is relevant insofar as the third respondent has been unsuccessful with respect to the application before the Court this day. 

9. The next matter is whether either party to the proceedings has made an offer in writing to the other party of the proceedings to settle the proceedings and the terms of any such offer.  There are no submissions before the Court as to that matter.    

10. The most significant feature is that the application before the Court is for enforcement of orders. This is the second such application that the applicant has been required to bring to the Court in order to ensure compliance with orders. Having regard to that history, I am satisfied that it is a circumstance that justifies a departure from the usual provisions that each party bear their own costs. I am satisfied, having regard to the circumstances that give rise to the application and the conduct of the third respondent insofar as that application is concerned, that an order for costs is appropriate. I am also satisfied, having regard to schedule 3 of the Rules, that the amount sought on behalf of the applicant is appropriate in all of the circumstances of the case.

11. Therefore the orders I make are as follows.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 August 2019.

Associate: 

Date:  13 August 2019