Xuereb and Xuereb (No. 2)

[2007] FamCA 481

FAMILY COURT OF AUSTRALIA

XUEREB & XUEREB (NO. 2) [2007] FamCA 481

FAMILY LAW - COSTS - Discretion

APPLICANT: MR XUEREB

RESPONDENT: MRS XUEREB

FILE NUMBER: MLF 2296 of 2006

DATE DELIVERED: 11 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 11 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Salamanca

COUNSEL FOR THE RESPONDENT: Mr Puckey

Orders

1. That paragraphs 1 and 3 of the Response of the husband filed 18 April 2007 shall be dismissed IT BEING NOTED THAT the husband concedes that pursuant to s 71 and s 4(ca) of the Family Law Act the validity or otherwise of the marriage of the parties does not affect the jurisdiction of this Court to determine either the wife’s application for spousal maintenance or the competing applications of the parties for a division of property.

2. That the husband shall file and serve an application pursuant to s113 of the Act together with all material to be relied upon, within 28 days.

3. That the wife shall file and serve a response to the said application, together with all material to be relied upon, within 28 days thereafter.

4. That the said application shall be listed for a directions hearing on 23 July 2007 at 10.30am.

5. That within 28 days the husband shall pay the wife’s costs of this day fixed at $1760.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2296  of 2006

MR XUEREB

Applicant

And

MRS XUEREB

Respondent

REASONS FOR JUDGMENT

1. Costs are a discretionary matter. Section 117 of the Family Law Act governs the question of costs. Section 117(1) provides that each party in proceedings will pay their own costs, but the court can decide that one party shall pay another party's costs, taking into account the matters set out in s 117(2A) of the Family Law Act. 

2. When I look at the question of merit in this case, I am satisfied that the wife has a strong claim to costs.  Mr Puckey has set the situation out very well on behalf of the wife.  The application listed today had one central thrust.  That was to determine the question of the validity of the marriage, so that it could then be decided whether the wife’s spousal maintenance application should or should not proceed before the Senior Registrar next Wednesday. 

3. Once it was conceded – properly - on behalf of the husband that, pursuant to s 71 and s 4(ca) of the Family Law Act, the validity or otherwise of the marriage would not affect the jurisdiction of the court to determine the spousal maintenance issue, then it became clear that today's attendance at court was on a misconceived basis.  The listing today was wholly unnecessary and there has been a waste of time and costs. 

4. Mr Salamanca for the husband has tried to persuade me that it would be inappropriate to make any costs order in the wife’s favour today because the spousal maintenance application should first be determined.  He argues that only then will it become clear as to which way the costs should fall and/or, similarly, the validity of the marriage question should ultimately be determined so that it could be seen which way the costs should fall. 

5. I have made it clear in the course of argument that I disagree with him. Whatever happens in terms of spousal maintenance and any subsequent costs order, and whatever happens in relation to the validity of the marriage issue and any subsequent costs order, the attendance at court today has been wasted.

6. The wife is not in receipt of legal aid.  She is meeting her own legal fees.  I need to look at each party's financial position.  I am not able to do that to the level of detail that will ultimately unfold in the maintenance hearing, but for present purposes it is clear that of the two of them the husband controls the substantial matrimonial assets. 

7. Mr Salamanca says that if I do make a costs order, I should stay the payment of costs until the property settlement.  That is what occurred when the wife was ordered to pay the husband's costs earlier this year in relation to an application that was apparently found to be misconceived on her part.  In my view there is a distinction.  He has substantial assets under his control with a substantial equity in them.  She does not.

8. I propose a costs order in the wife’s favour.  I am not going to stay it until the conclusion of any property proceedings. 

9. That leaves only the question of the amount of costs.  If I can spare the parties the burden and the expense of having costs taxed, that would be best.  At the same time I need to be able to arrive at a fair result. 

DISCUSSION

1. I propose only the costs wasted today.  I agree the costs should be on scale, but at the top of the scale because the work was substantial.  Mr Puckey’s work was very helpful. 

2. I will add an order to the Minutes handed up by Counsel.  It will be that within 28 days the husband shall pay the wife's costs of this day fixed at $1760.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  11 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as XUEREB & XUEREB