Young and Young (No.2)
[2005] FMCAfam 157
•6 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YOUNG & YOUNG (No.2) | [2005] FMCAfam 157 |
| FAMILY LAW – Property – costs – circumstances justifying order – where property application was optimistic to the point of ambitious – sub-section 117(2A) paragraphs (c) and (g) are not to be read narrowly. |
| Family Law Act 1975 (Cth), s.117 |
| Young & Young [2004] FMCAfam 539 |
| Applicant: | NICOL FRASER YOUNG |
| Respondent: | EDITH MONIQUE RITA YOUNG |
| File Number: | BRM 7848 of 2002 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 April 2005 |
| Date of Last Submission: | 6 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 April 2005 |
REPRESENTATION
| The Applicant: | No appearance |
| Solicitors for the Applicant: | Shera Jones Paras |
| Counsel for the Respondent: | Ms Swanston |
| Solicitors for the Respondent: | Swanston & Associates |
ORDERS
That the Applicant Husband is to pay the Wife’s costs of these proceedings in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
BRM 7848 of 2002
| NICOL FRASER YOUNG |
Applicant
And
| EDITH MONIQUE RITA YOUNG |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife, who was the Respondent to a property application brought by the husband, that the husband should pay her legal costs of the proceedings. There was no appearance by or on behalf of the husband in this application.
Background
The proceedings between the parties were completed by means of a judgment delivered on 17 December 2004. No appeal has been lodged.
The husband had sought orders that the pool of matrimonial assets should be divided as to 30 per cent to the husband and 70 per cent to the wife. He was unsuccessful in that application.
The wife, in her response, sought orders to this effect:
a)that subject to her indemnifying the husband in respect of the mortgage over the former matrimonial home, the wife was to retain the home and all personalty in her possession;
b)that the husband’s property application be dismissed; and
c)that the husband pay the wife’s costs.
After the hearing, I made orders that declared that the wife was solely entitled to the former matrimonial home, but she was required to indemnify him in respect of any debt secured upon that property.
I ordered that the wife was to deliver to the husband the following items of personalty:
a)a software package for the purpose of share-trading;
b)an evaporative cooler;
c)an electric chainsaw; and
d)a DVD player.
Otherwise, the parties were to retain all property in their name or possession.
Issues
The issue is whether the parties should pay their own costs or whether the husband should pay the wife’s costs.
Evidence
The matter proceeded by way of submission from the wife’s solicitor, Ms Swanston. She submitted that:
a)the husband had been unsuccessful in the proceedings whereas, by comparison, the wife had received more or less the orders that she had asked for;
b)the wife had always been prepared to settle the matter; and
c)the wife was a person of limited financial means.
There were no submissions made on behalf of the husband.
The relevant law
Section 117(1) of the Family Law act provides that subject to
sub-section (2) and sections 117AA 118, each party to proceedings under the Act should bear his or her own costs. Sub-section 117(2) gives the Court the power, subject to sub-section (2A) and the applicable Rules of Court, make such order as to costs as the court considers just, if the Court is of the opinion that there are circumstances that justify it in doing so.
Sub-section 117(2A) sets out seven paragraphs to which the Court shall have regard in considering what order, if any, should be made under sub-section (2). I will not repeat them here, except to say that the powers are quite wide, as paragraph (g) allows the court to consider
(g)such other matters as the court considers relevant.
Conclusions
In this case, I note that the husband’s application was largely, although not completely, unsuccessful. The only order that was made against the wife that was not covered in her Response was Order 7, requiring the delivery to the husband of certain items of personalty, including a DVD player and an evaporative cooler. I note that in paragraphs 102 and 103 of the decision I referred to those items:
102.As far as chattels were concerned, she[1] said that the husband could have the DVD player if he wanted it. He could also have the chainsaw back. She also said there was a list of 6 items with a value of about $280.00 that the husband could have. He could have the evaporative cooler, which she said was the only thing that the husband brought into the house. Everything else, she said, was twelve years old.
103.In re-examination, the wife said that she had offered the husband the goods before, but she felt that he wanted money.[2]
[1] Ie, the wife
[2] [2004] FMCAfam 539 at [102] – [103]
It seems unfortunate that the question of the chattels could not have been resolved between the parties, even on the day of the hearing itself. I am satisfied that the husband could have had those items well before the final decision, and I would have had no hesitation in making an order by consent on the day of the hearing, had the parties wished.
In any event, the chattels formed a small part of the matrimonial assets.
There was evidence during the hearing that the wife was not financially well off, and still owed money to the Queensland Legal Aid Commission as a contribution to earlier family law proceedings. At the same time, the husband is a man of only modest financial means.
The marriage was a short one, lasting for only three years. The initial contributions favoured the wife; the husband brought very little into the marriage by way of assets. I found that the contributions by the parties to the matrimonial assets were in the ratio of 15 per cent to the husband and 85 per cent to the wife.[3] The sub-section 75(2) matters favoured the wife, but only slightly, to the extent of 5%.
[3] Young and Young [2004] FMCAfam 539 at [115].
Taking all these matters into account, the husband’s claim for a 30 per cent share of the assets after a marriage of only three years was optimistic to the point of ambitious. It was hardly a realistic application. Both parties were represented by solicitors and counsel who are not without experience in this jurisdiction.
This is a suitable matter for an order for costs. It is a case that should have settled.
Sub-section 117(2A)(c) requires the court to have regard to “the conduct of the parties to the proceedings in relation to the proceedings”. It is not intended by the legislature to be read narrowly. Whilst it refers to 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”, the paragraph expressly states that those matters are for consideration “without limiting the generality of the foregoing”. What this means is that the paragraph is not limited to procedural steps in the proceedings, but covers the proceedings as a whole. This must mean that the court is entitled to consider whether the application should have gone to final hearing at all, or if it should have settled, either wholly or in part.
If there is any doubt about such things, paragraph (g) of sub-section 117(2A) entitles the court to consider “such other matters as the court considers relevant.” Clearly, paragraph (g) is not intended to be read narrowly, as the only restriction placed on the court is that the court must consider the matter to be relevant. It is, to my mind, obviously relevant for a court to consider whether an application was reasonable or whether it was highly speculative.
There are surprisingly few orders for costs made under the Family Law Act. It is surprising that practitioners do not seek costs more regularly in appropriate cases.
Costs do not follow the event, as is the case in other civil jurisdictions. Practitioners must be aware, however, that ambitious, speculative or unrealistic applications run the risk of the sanction of a costs order if they are unsuccessful on a final hearing.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 7 April 2005
0
0
1