Yeats and Yeats (No. 2)

[2008] FamCA 568

FAMILY COURT OF AUSTRALIA

YEATS & YEATS (NO. 2) [2008] FamCA 568

FAMILY LAW – COSTS – Interim costs order

Family Law Act 1975 (Cth)

APPLICANT: Ms Yeats

RESPONDENT: Mr Yeats

FILE NUMBER: SYC 1755 of 2007

DATE DELIVERED: 24 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 2 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campbell

SOLICITOR FOR THE APPLICANT: Greg Walsh & Co

COUNSEL FOR THE RESPONDENT: Mr Aldridge

SOLICITOR FOR THE RESPONDENT: Murphys Lawyers Civil

Orders

1. Each of the party’s costs associated with all of the litigation in the Family Court of Australia be reserved for determination at the conclusion of the proceedings under the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:

MS YEATS

Applicant

And

MR YEATS

Respondent

REASONS FOR JUDGMENT

1. The Applicant wife seeks an order for costs associated with the proceedings commenced in this Court by the wife seeking orders for interim spouse maintenance, interim/ partial property settlement and interim costs.

2. On 6 May 2008 I made orders for interim/ partial property settlement, interim costs and interim spouse maintenance. I also made the following order:

   (10)Upon the determination of the outstanding costs applications referred to in these orders the matter is to be forthwith transferred to the Supreme Court of New South Wales to be consolidated with proceedings in that Court being No […] of 2007.

3. Each of the parties has filed in the Court their written submissions in relation to the competing costs applications.

4. Section 117(1) of the Family Law Act 1975 (Cth) provides that subject to other sections of the Act each party to proceedings under the Act shall bear his or her own costs. s117(2A) of the Act requires the court when considering an application for costs to have regard to the matters referred to in paragraphs (a) to (g) of that subsection.

5. Following the delivery of judgement and orders made 6 May 2008 the wife sought the following orders:

   “1.The Husband pay the Wife’s costs of and incidental to the wife’s application in a case as amended and ultimately heard on 27  February and the 2 May 2008; and

   2.        The Husband pay the Wife’s costs of the proceedings.”

6. In her written submissions the wife says as follows:

   “6.In light of this Court’s transfer of the Family Court proceedings to the Supreme Court the Wife now seeks the following orders in relation to costs:

   1.The Husband pay the Wife’s costs of and incidental to the Wife’s application in a case as amended and ultimately heard on 27 February and 2 May 2008; and

   2.The reserving of the determination of the question of costs of the Family Court proceedings to the Supreme Court to be determined by the Supreme Court upon the finalisation of the proceedings whether by way of judgment, settlement or otherwise.”

7. In his written submissions in reply the husband says the following:

   “1.In her written submissions the wife seeks an order that the husband pay the costs of and incidental to the application in the case heard on the 2 February and the 02 May 2008 and that the costs of the proceedings otherwise be reserved.

   2.The husband accepts that it is appropriate for the costs of the proceedings to date be reserved.”

8. In the wife’s application for costs in relation to the application in a case, the wife relies on the superior financial position of the husband as being one of the grounds which she says should favour a costs order being made against the husband. In the judgement I delivered on 6 May 2008 I made findings in relation to the comparative financial position of each of the parties. I refer to those findings and incorporate same into these reasons.

9. In relation to the husband’s conduct, as it is relevant under s117(2A)(c), the wife submits that the husband was “dilatory” in the provision of information relevant to himself in respect of the wife’s application.

10. It was further submitted, in relation to sub section (e) that the wife was substantially successful in her application to the Court.

11. The wife does not rely on an offer of compromise and says that there was no offer of compromise made by the husband to the wife.

12. In the husband’s written submissions he says the wife may receive no more by way of property settlement than she has already received under the interim order. It is the husband’s case that in fact the wife should receive nothing. It is submitted that the costs relating to interim property settlement should not be dealt with until the final property settlement is known. Her only capacity to meet any order would arise if she was successful in the proceedings in the Supreme Court and/or the Family Law Act proceedings which are now to be transferred.

13. The husband points out that the wife was not wholly successful in her claim. He submits that she received significantly less maintenance than she claimed in her application and only half of the interim property settlement claimed by her.

14. As noted earlier, the proceedings have now been transferred to the Supreme Court of New South Wales. The parties have a considerable journey through that Court before the litigation will be finalised. There is at least some prospect that the wife might be wholly unsuccessful in that litigation. If that were the case, she would have no capacity to repay any costs which might be ordered at this time.

15. I would not exercise the discretion of the Court in making a costs order at this time. I am of the view that the most equitable approach to the question of the costs of each of the parties in relation to the interim application determined by me is to reserve those costs to be determined at the conclusion of the proceedings in the Supreme Court. The order of the Court will be that each of the party’s costs associated with all of the litigation in the Family Court of Australia be reserved for determination at the conclusion of the proceedings under the Family Law Act 1975 (Cth).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  24 July 2008