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Payment of Mediator’s Cancellation Fee

Payment of the Mediator’s Cancellation Fee

  1. By Orders made by consent on 17 August 2017, the parties were to attend mediation prior to 15 December 2017.
  2. The parties agreed to attend mediation with a particular mediator on 7 December 2017 and that was confirmed on 25 October 2017. The wife’s solicitors wrote to the husband’s solicitors on 2 November 2017, informing that some time would be required by the wife to consider the documents that the husband was still to disclose prior to the mediation.
  3. The wife deposed to the receipt by her solicitors of further disclosure from the husband on 9 November 2017, which she said was incomplete. The wife’s solicitors wrote to the husband’s solicitors on 14 November 2017 and told them that the wife was not in a position to meaningfully engage in mediation on 7 December 2017 whilst the husband remained in breach of his disclosure obligations. The wife’s solicitors proposed postponing the mediation until a date in January 2018 and sought the husband’s agreement to approach the mediator in that respect.
  4. The wife said in evidence that the husband’s solicitors had told her solicitors on 16 November 2017 that the remaining disclosure could be provided by the husband in the week commencing Monday, 20 November 2017. The husband did not deny or dispute that evidence of the wife in his affidavit evidence.
  5. Further, the wife said in evidence that she instructed her solicitors to inform the husband’s solicitors that she “would remain prepared” to attend mediation on 7 December 2017, provided her solicitors were provided with certain documents by Tuesday, 21 November 2017. The list of documents she said she required relevantly included the 2017 Financial Statements and Taxation Returns for the B Superannuation Fund, C Unit Trust and the H Unit Trust. The husband accepted that the wife’s solicitors did inform his solicitors of her instructions on 16 November 2017.
  6. As at the date of swearing her affidavit that was filed on 20 December 2017, the wife asserted her solicitors had not received a response to that communication, nor the documents requested. That has not been disputed either.
  7. The wife said that her solicitors informed the mediator on 22 November 2017 that she was not in a position to be able to participate meaningfully in the mediation on 7 December 2017 and asked the mediator to send any cancellation fee to the husband’s solicitors.
  8. The wife said that on the same day, the husband’s solicitors communicated the husband’s refusal to pay all of any cancellation fee as he considered the matter still capable of mediation. Indeed, the husband, in his affidavit evidence, concedes that it was his position that they could still participate in the mediation.
  9. The wife’s solicitors received an invoice from the mediator on 5 December 2017 for the sum of $1,182.50 being half of the total cancellation fee.
  10. Though, I do not know whether the wife has paid the amount invoiced to her solicitors by the mediator for her share of the cancellation fee, the wife maintains that an order should be made that the husband pay that amount.
  11. I consider the amount an outlay incurred by the wife as part of her legal costs and outlays in these proceedings and, as such, that the Court’s power to order the husband to pay it is found in the provisions of s 117 of the Family Law Act (“the Act”).
  12. Of course, that section provides that generally each party to proceedings under the Act shall bear his or her own costs. That is, however, subject to the Court ordering otherwise where it is satisfied the circumstances justify it in doing so. If it the Court is so satisfied, it may make a costs order in terms considered just. Satisfaction in respect of those matters is to be informed by the matters set out in s 117(2A) of the Act. Included in the list of matters in s 117(2A) of the Act, the Court shall have regard to is “the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to … discovery … production of documents and similar matters.”
  13. As I have already observed earlier in these reasons, I do not consider the husband excused from his obligation to disclose relevant documents, or the particular documents requested to be disclosed by the wife prior to mediation taking place, of the three named entities for the reasons advanced to the wife’s solicitors in correspondence sent to them by his solicitors and repeated by him in his affidavit evidence filed in this application. Furthermore, the wife’s evidence that the husband’s solicitors informed her solicitors that the documents could be provided in the week commencing 20 November 2017 was not disputed, as I have already observed. Neither was the wife’s evidence that they were not provided in that week despite that assurance.
  14. I do not consider it unreasonable for the wife to have determined that she would not attend mediation in those circumstances. Mediation of a property settlement dispute in circumstances where one of the parties is unaware of significant facts that would put her or him in a position of being able to be properly advised of her rights, potential entitlements and obligations could only seriously disadvantage that party and make it far less likely for a resolution of the dispute to be achieved, let alone a resolution that would be adjudged to be just and equitable.
  15. I consider that the circumstances justify a costs order being made and that a just costs order would be one that obliges the husband to pay the wife within fourteen days the amount of $1,182.50 being her half of the cancellation fee charged by the mediator. I will so order.

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