Citation:  FamCa
Court: Family court of Australia
Applicant: J Johnson (wife)
Respondent: R Johnson (husband)
Judge: Justice Forrest
Date of Judgement: 12 April 2018
The wife applied for the husband to pay her costs pursuant to an Application in a Case she filed in July 2017. She sought spousal maintenance and a share of the income of the family trust. The husband sought to have her application dismissed and no alternative orders. The parties asked the Court to make consent orders. These orders included that she should be paid $1,700 per month. This was less than she had applied for.
The wife was, therefore, neither wholly successful nor wholly unsuccessful in her application.
Section 117 of the Family Law Act 2975 (Cth) states the general principles to be applied when making a costs order in a family law matter.
The parties are to bear their own costs, subject to certain discretionary considerations of the court. A court may make orders if it is of the opinion that there are circumstances that there are circumstances that justify it in doing so. The court may make orders it considers just.
The court must have regard to all of the matters in s 117(2A):
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
- the financial circumstances of each of the parties to the proceedings;
- whether any partyto 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 proceedingsin relation to the proceedings including, without limiting the generality of the foregoing, 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;
- whether the proceedingswere necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
- whether any partyto the proceedings has been wholly unsuccessful in the proceedings;
- whether either partyto the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
- such other matters as the court considers relevant.
Forrest J held sub-paragraphs, (a), (c), (e) and (f) to be relevant to this matter.
The wife submitted that her weekly income was $689.14 short of what she required and that the husband could afford to pay this. The husband submitted that he had been paying some maintenance 2015 through 2016, but did not dispute that this had been reduced to $65, or half the weekly cost of maintaining the home.
The husband ignored many requests for maintenance. When he did finally make an offer it was for $300 less than the wife received and accompanied by unreasonable conditions. Those conditions were that the wife make genuine efforts to reach a financial settlement before June 30, 2018 and that the wife withdraw her application for interim spousal maintenance. He further threatened to cease to provide any monthly payments at all if she did not meet these demands. Forrest J accepted that these requests were unreasonable.
The husband’s offers to pay were ostensibly made “without admission of capacity or need”. However, Forrest J considered them to be admissions both of his capacity to pay and her need for maintenance.
The wife did not receive everything she applied for, but the husband had applied simply to have her application dismissed. As such, she was relevantly not wholly unsuccessful.
The husband knew of the wife’s need for support but still forced her to bring an application at considerable expense. The husband has an income more than 20x the wife’s and a capacity to pay support.
As such, Forrest J was satisfied that the circumstances justified a costs order and ordered that the husband pay $6000 towards the wife’s costs.