Adamo & Vinci (No 3)
[2022] FedCFamC1F 226
•7 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adamo & Vinci (No 3) [2022] FedCFamC1F 226
File number(s): SYC 3598 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 7 April 2022 Catchwords: FAMILY LAW – PROPERTY – Where final orders made by the Court in October 2020 – Where the husband filed an initiating application pursuant to s 79A of the Family Law Act 1975 (Cth) in April 2021 – Where the husband filed an Application in a Proceeding in December 2021 seeking an injunctive order against the wife from selling the former matrimonial home – Where the husband substantively changed his application upon adjournment of the interim defended hearing – Application dismissed – Husband ordered to pay costs of and incidental of the Application in a Proceeding as and from 16 February 2022. Legislation: Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) ss 60I, 79A, 117
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.08
Cases cited: Adamo & Vinci [2020] FamCA 537
Adamo & Vinci [2020] FamCAFC 208
Adamo & Vinci (No 2) [2020] FamCA 873
Adamo & Vinci (No 2) [2020] FamCAFC 229
Camm v Linke Nominees Pty Ltd (No 4) [2013] FCA 223
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
I and I (No. 2) (1995) FLC 92–625
Kiefel v State of Victoria [2014] FCA 411
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664; [2015] FamCAFC 157
Modra v Victoria (Dept of Education and Early Childhood Development and Dept of Human Services) (2012) 205 FCR 445; [2012] FCA 240
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23
Sklavos v Australasian College of Dermatologists [2013] FCA 1065
Specsavers Pty Ltd v Optical Superstore Pty Ltd (2012) 208 FCR 78; [2012] FCAFC 183
Vinci & Adamo [2021] FedCFamC1A 53
Division: Division 1 First Instance Number of paragraphs: 76 Date of hearing: 15 February 2022, 18 March 2022 Place: Sydney (via videoconference) Applicant: Litigant in person Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Alidenes & Co Solicitor ORDERS
SYC 3598 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ADAMO
Applicant
AND: MS VINCI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
7 APRIL 2022
THE COURT ORDERS THAT:
1.The applicant husband’s Application in a Proceedings filed 24 December 2021 is dismissed.
2.The applicant husband is to pay costs of and incidental to the applicant’s Application in a Proceeding filed 24 December 2021 as and from 16 February 2022 to the extent that those costs do not overlap with costs incurred by the respondent wife in the period prior to and including 15 February 2022.
3.The costs payable pursuant to Order 2 are to be paid within 14 days of those costs being agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Adamo & Vinci has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter was initially listed for hearing on 19 March 2022 to hear the applicant husband’s, Mr Adamo (“the husband”) three Applications for Review of a judicial registrar’s decision filed on 27 December 2021. In addition, the husband had filed, and what was understood by the respondent wife, Ms Vinci (“the wife”), an Application in a Proceeding filed 24 December 2021 in which the husband sought orders which included, as a primary focus, an application for injunctive orders against the respondent wife preventing her from dealing with a property registered in her name at Suburb O. As will become apparent, in what the applicant described as being a “fluid situation,” the application actually pressed before the Court was substantially different from the orders proposed in his Application in a Proceeding filed on 24 December 2021.
I have found the husband’s application to be without merit and it has been dismissed with costs.
BACKGROUND AND LITIGATION HISTORY
Despite judicial officers of the Court on several occasions expressing grave concern regarding the conduct of these proceedings, this matter has absorbed disproportionate resources of the parties and the Court. This is made most apparent by the litigation history which, by way of broad summary, is as follows.
The husband originally commenced proceedings in the Federal Circuit Court of Australia (as it was then known) on 7 June 2018. After several interim hearings, interim parenting orders were made on 12 August 2019 and the matter was also transferred to the Family Court of Australia (as it was then known).
On 7 July 2020, Rees J dismissed an application by the husband in which he sought permission to call an expert witness in the context of the husband’s application for property settlement orders; Adamo & Vinci [2020] FamCA 537.
On 25 August 2020, the husband’s appeal was dismissed by a decision of the Full Court; Adamo & Vinci [2020] FamCAFC 208. By subsequent decision dated 11 September 2020 the husband was ordered to pay the wife’s costs of and incidental to the appeal; Adamo & Vinci (No 2) [2020] FamCAFC 229.
On 16 October 2020, Rees J delivered judgement and made final orders in respect to both the parties’ property and parenting disputes; Adamo & Vinci (No 2) [2020] FamCA 873. Those orders were appealed by the wife who challenged her Honour’s orders to make a superannuation splitting order in respect to the wife’s pension.
On 16 April 2021, that is, prior to the determination of the Appeal the husband filed an application for final orders pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”). The parameters of that application are relevant for the purpose of considering the husband’s present application. The orders sought in the application filed on 16 April 2021 were as follows;
1.That pursuant to s79A(l)(a) of the Family Law Act 1975(Cth), the Court varies or sets aside Orders (14) and (15) made by the Honourable Justice Rees in File number SYC3598 of2018 on 16 October 2020, and makes the following orders in substitution thereof: (14) that in addition to the $402,000 ordered to be paid by the wife to the husband on or before 16 April 2021, the wife pay to the husband a further $172,626 within 28 days of the making of the s79A orders. (15)
That in the event that the wife has not paid the whole of the sum in Order 14 by the due date, she shall do all things required to sell the prope1iy at [D Street, Suburb E], in the State of New South Wales, being the land comprised in Folio Identifier […]47, and to pay the proceeds of sale, in the following order and priority:
(a) to discharge any registered mortgage;
(b) in payment of selling costs and agent's commission;
(c) to pay to the husband any such amount as remains unpaid, together with interest calculated from the due date of payment in Order 14 until the date of payment at the interest rate prescribed by the Family Law Rules.
2. That Order shall take effect from __________ 2021
3. Costs
(As per original, bold emphasis added)
On 16 August 2021, the wife filed her response to the husband’s s 79A application seeking that the application be dismissed.
On 30 August 2021, orders were made giving the parties liberty to relist the matter subsequent to the Full Court’s decision in respect to the appeal.
On 5 November 2021, the wife’s appeal to the Full Court was dismissed; Vinci & Adamo [2021] FedCFamC1A 53.
The matter was listed for a procedural hearing before a judicial registrar on 14 December 2021 at which time the following notations were made:
A. This matter was listed today for procedural hearing.
B. This matter is allocated to the docket of Judicial Registrar […].
C. The Respondent Wife’s Appeal filed 10 November 2020 (EAA158/2020) and the Applicant Husband’s Notice of Contention filed 25 November 2020, both of which relate to the orders of Justice Rees made 16 October 2020, were each dismissed by the Full Court of Division 1 on 5 November 2021.
D. The following applications are currently on foot in these proceedings, being:
a. An Application in a Proceeding filed 29 January 2021 by the Applicant Husband, seeking that, pursuant to the slip rule, the Court vary Order 18 of the orders made by the Honourable Justice Rees on 16 October 2020 (‘the slip rule Application’); and
b. An Application in a Proceeding filed 5 March 2021 by the Applicant Husband, and amended on 16 April, 2021 seeking that pursuant to s79A(1)(a) of the Family Law Act 1975, that Order 14 and 15 of the orders made by the Honourable Justice Rees on 16 October 2020 be set aside and orders made in substitution thereof (‘the s79A Application’). The Applicant Husband
E. There are separate proceedings on foot in this Court, being SYC2725/2021, commenced by the Applicant Husband on 29 November 2021 seeking a stay of child support pursuant to s.111C(3) of the Child Support (Registration and Collection) Act 1988 (Cth) (‘the child support stay Application’). This matter was also separately listed today for procedural hearing.
F. The Respondent Wife presses for an interim hearing in relation to the s.79A Application threshold issue.
G. The Applicant Husband has also informed the Court that he may seek to file a further Application in a Proceeding.
H. Both parties are required to comply with Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on the next occasion.
I. The parties are requested to seriously consider the financial consequences and legal costs associated with pursuing prolonged and extensive litigation in the family law system. (Bold Emphasis added)
On 14 December 2021 directions were made for the consolidation of an application which had previously been filed by the husband seeking a stay of orders made pursuant to the Child Support (Assessment) Act 1989 (Cth) and a timetable for the wife to file her response and supporting documentation. Orders were also made in respect of s 79A proceedings as follows:
3. By no later than 4.00pm on 31 January 2021, the Applicant Husband file and serve verified points of claim which he seeks to rely on in relation to the Application in a Proceeding as amended on 16 April 2021.
4. By no later than 4.00pm on 14 February 2021, the Respondent Wife file and serve verified points of defence which she seeks to rely on in relation to the Applicant’s Application in a Proceeding as amended on 16 April 2021.
5. The Applicant Husband’s Application in a Proceeding as amended on 16 April 2021 is listed for interim hearing before a Senior Judicial Registrar (by Microsoft Teams) on 24 February 2022 at 10.00am.
On 20 December 2021 the matter was again listed for a directions hearing before a judicial registrar at which time the following notations were made:
A. This matter was last listed on 14 December 2021 and relisted today upon the Court’s application following the Court’s review of this matter, and considering Rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
B. The following Applications are currently on foot:
a. An Application in a Proceeding filed 29 January 2021 by the Applicant Husband, seeking that, pursuant to the slip rule, the Court vary Order 18 of the orders made by the Honourable Justice Rees on 16 October 2020 (‘the slip rule Application’);
b. An Application in a Proceeding filed 5 March 2021 by the Applicant Husband, and amended on 16 April, 2021 seeking that pursuant to s79A(1)(a) of the Family Law Act 1975, that Order 14 and 15 of the orders made by the Honourable Justice Rees on 16 October 2020 be set aside and orders made in substitution thereof (‘the s79A Application’);
c. An application commenced by the Applicant Husband on 29 November 2021 seeking a stay of child support pursuant to s.111C(3) of the Child Support (Registration and Collection) Act 1988 (Cth) (‘the child support stay Application’).
At that directions hearing on 20 December 2021 the court vacated the interim hearing listed on 24 February 2022 and adjourned all outstanding applications to the Judicial Duty List for determination.
Further, at that directions hearing on 20 December 2021 a notation was made to the effect that the obligation remained on the husband to file points of claim in respect to his s 79A application. Relevantly, for the purpose of this hearing, a further notation was made as follows:
The Applicant Husband sought to file a further Application in a Proceeding on 16 December 2021, however it appears that the Application has not be accepted for filing. Leave was not granted by the Court to file the Application today noting paragraph 5.22 of the Central Practice Direction 2021. The Applicant Husband has indicated that he will file an Application seeking leave to file a further Application in a Proceeding and has assured the Court that such further application is not an attempt to further litigate matters for which final orders have been made and an appeal in relation to those final orders has been determined.
On 24 December 2021, the husband filed an application for review of orders made by a deputy registrar on 22 December 2021. This application was made despite the explicit notation by a judicial officer of the court to the parties imploring them to act responsibly in respect to the amount of litigation that they have engaged in.
Additionally, on 24 December 2021 the husband filed the application in a proceeding which is the subject of these reasons for judgment. The husband sought the following orders:
1.An interlocutory order or injunction under s 114(1) of the Family Law Act 1975 (Cth) restraining the Respondent from taking any step to rent out, or otherwise further encumber, from the date of the making of this order, the former matrimonial home, being the property known as [D Street, Suburb E] and the land comprised in NSW Land Registry Folio identifier […]47, until further order of the Court
2.An interlocutory order or injunction under s 114(1) of the Family Law Act 1975 (Cth) restraining the Respondent from taking any step to disenrol the children [X] and [Y] from [School P] New South Wales, or taking any step to enrol the said children in any other school, until further order of the Court.
3.An interlocutory mandatory order or injunction under s 114(1) of the Family Law Act 1975 (Cth) that the Respondent, if having taken any step to rent out, or otherwise further encumber, the fonner matrimonial home, being the property known as [D Street, Suburb E], New South Wales and the land comprised in NSW Land Registry Folio identifier […]47, from the time of the filing by the Applicant of his application pursuant to s79A of the Family Law Act 1975 (Cth) on 16 April 2021, shall do everything in her power to reverse such step, or encumberance, including, if necessary, selling the said former matrimonial home, and holding all the outstanding proceeds of sale on trust, until further order of the Court.
4.An interlocutory mandatory order or injunction under s 114(1) of the Family Law Act 1975 (Cth), that the Respondent, if having taken any step to disenrol the children [X] and [Y] from [School P] and enrol the said children in any other school , shall do everything in her power to reverse such steps and conduct.
5.An interlocutory order or injunction under s 114(1) of the Family Law Act 1975 (Cth) restraining the Respondent from interfering in any way with the use, enjoyment, and occupancy of the former matrimonial home, being the property known as [D Street, Suburb E] and the land comprised in NSW Land Registry Folio identifier […]47, by the children [X] and [Y], until further order of the Court.
6.An interlocutory mandatory order or injunction under s 114(1) of the Family Law Act 1975 (Cth), that the Respondent, if having taken any step to interfere with the use, enjoyment, and occupancy, by the children [X] and [Y], of the former matrimonial home, being the property known as [D Street, Suburb E] and the land comprised in NSW Land Registry Folio identifier […]47, from the time of the filing by the Applicant of his application pursuant to s79A of the Family Law Act 1975(Cth) on 16 April 2021, shall do everything in her power to reverse such step or conduct, including, if necessary, selling the said former matrimonial home, and holding all of the outstanding proceeds of the sale on trust until further order of the Court.
7.Orders 1-6 above shall take effect on and from _______ December 2021.
8.An order under r 2.33(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that the material filed by the Applicant in SYC2725/2021 on 29 November 2021 be authorised by the Court to have been personally served on the Respondent on 9 December 2021.
9.That the matters be listed on an urgent basis due to threatened relocation of the children and dis-enrollment from their current school to [Suburb Q] by the Respondent against the children and the Applicant's wishes.
10.Leave is sought pursuant to paras 5.2 l & 5.22 of the Federal Circuit and Family Court of Australia Central Practice Direction- Family Law Case Management to file this Application in a Proceeding on the following bases:
i.the 2 other Applications in a Case filed by the Applicant have been necessary only due to the Respondent's conduct, namely (i) the s79A application because of the Respondent's failure to comply with her duty to make full and frank disclosure of her financial circumstances in the proceedings before Rees J in September 2020 thereby misleading the Court which resulted in a miscarriage of justice;
ii.further to (i), the Respondent made a frivolous and vexatious Special Circumstances application under Part 6A of the Child Support (Assessment) Act 1989 seeking additional child support, and appealed from the Child Registrar's determination to the AAT, thereby requiring the Applicant to file the s 111C of the Child Support (Registration and Collection) Act application;
ii.when the Applicant has made reasonable and genuine attempts to settle the issue to which this Application in a Proceeding relates, namely to determine whether the Respondent intends to proceed with renting out, or further encumbering, the former matrimonial home, and disenrolling the children from [School P] to live and school in [Suburb Q], the Respondent has refused to deny this;
iii.Following the Directions Hearing before Judicial Registrar […] on 20 December 2021 at around 9:30am, the Applicant called the Respondent's solicitor [Ms S], and left a message on her mobile phone requesting her to contact the Applicant to advise whether there is a need for the Applicant to press this Application in a Proceeding, and has received no reply;
iv.On 21 December 2021, at 1:33pm the Applicant text messaged the Respondent with the message, “the last thing I want to do is make another application to the Court. Can you please confirm you won’t try to force the kids to live & school in [Suburb Q] against their wishes?”, and the Applicant received no reply.
11.To the extent that permission is required pursuant to Rule 5.02(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules to start a parenting proceeding in orders 2 & 4 above, or to start a financial proceeding in Orders 1, 3, 5 & 6 above, it is sought.
12.Costs
(As per original)
That is not the end of the applications. On 27 December 2021 the husband filed three separate applications for review which sought review of the following orders:
·the orders made by a judicial registrar on 14 December 2021 to which reference has been made,
·the orders made by a judicial registrar on 20 December 2021 to which reference has been made,
·The orders made by a deputy registrar made on 24 December 2021 for the listing of the application in a proceeding filed on 24 December 2021 before a judicial registrar.
On 29 December 2021 the husband filed a Notice of Discontinuance of his Application for Review filed on 24 December 2021.
On 11 February 2022, the matter was again listed before a judicial registrar for directions at which time the following notations were made:
A. The Applicant Husband’s Application in a Proceeding filed 24 December 2021 was listed for return before Judicial Registrar […] today (‘the Application’).
B. In circumstances where the Applicant has various Application for Reviews on foot seeking, among other things, that his amended s79A application be listed for procedural hearing before a judicial officer other than Judicial Registrar […], the Court enquired of the parties if they wished to proceed with the directions hearing, or have the Application listed elsewhere. The parties each indicated to the Court that they wished to proceed with today’s directions hearing.
C. In addition to the various injunctions sought in the Application, the Applicant Husband made various oral applications regarding the following:
a. That a Single Expert be appointed pursuant to Rule 7.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to value the property at [D Street, Suburb E]; and
b. That new parenting orders be considered now that the children were primarily in care of the Applicant.
D. The Respondent opposed all above Applications. The Court was not minded to order the appointment of a Single Expert on this occasion and put the parties to that expense when there is no indication of when the s79A application may be determined. Further, there are no applications currently on foot in relation to relation to parenting orders and the Court indicated that an oral application seeking parenting orders would not be considered.
E. The Court is today informed that the Respondent Mother is living and working in [Suburb Q] and that the children remain enrolled in [School P].
F. The Respondent Wife has not complied with order 2 made 14 December 2021. The Applicant Husband has not complied with order 3 made 14 December 2021.
G. On the last occasion, the matter was consolidated and adjourned on a date to be advised for before a Justice of this Court.
H. Part way through the directions hearing, the video link to the Applicant was terminated at which point the matter was stood down. Email correspondence was forwarded to the Applicant by the solicitor for the Respondent to the effect that the connection had been lost and that the matter had been stood down to the end of the list. When the matter was recalled, there was no further appearance from the Applicant, nor had a response been received by the solicitor for the Respondent from the Applicant. Given this, the matter was adjourned.
I. Both parties are required to comply with Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on the next and all subsequent occasions.
J. The parties are requested to seriously consider the financial consequences, legal costs and impacts on their families and their two children associated with pursuing prolonged and extensive litigation in the family law system. (Bold emphasis added)
On 11 February 2022, orders were made for all outstanding applications to be listed for hearing before me on 15 February 2022.
On 14 February 2022, a judicial registrar made orders amending the orders made on 20 December 2021 pursuant to the slip rule to read;
All outstanding applications are forthwith transferred to the Judicial Duty List for determination on a date to be advised Division 1 pool of matters awaiting allocation of a hearing date before a Justice of this Court.
That order did not, however, alter the previous order that outstanding interim applications were to be listed before me on 15 February 2022.
On 15 February 2022, I made orders and delivered ex tempore reasons for judgment dismissing the husband’s application for review in respect to the orders made on 14 December 2021.
Those orders also granted the husband leave to discontinue his Application for Review of the orders made by a judicial registrar on 20 December 2021 filed on 27 December 2021.
Additionally, on 15 February 2022 I adjourned the husband’s Application in a Proceeding filed 24 December 2022 for hearing before me on 19 March 2022.
On 15 February 2022 I delivered ex tempore reasons explaining why the adjournment was subject to the conditions of the husband filing and serving Points of Claim in respect to his s 79A application and also providing an undertaking to pay the costs of the wife thrown away as a result of the adjournment. As has been made clear in my ex tempore reasons for judgment, the adjournment was necessitated by the husband failing to file and serve an affidavit in support of the relief which he was seeking but rather seeking to rely on a letter which he had unilaterally sent to my chambers on the night before the hearing.
In light of the previous history, email correspondence was sent to the parties by my Chambers on 14 March 2022. I sought the following:
Dear parties and practitioners,
We refer to the above matter, which is listed for a review hearing before his Honour this Friday, 18 March 2022.
Chambers advises that, due to changes in the judicial calendar, the review hearing will now commence at the later time of 2.30 pm on Friday 18 March 2022.
To ensure that the matter proceeds efficiently, his Honour requests the parties to provide a short case outline of no more than two (2) pages, setting out the following:
• The orders that they are seeking
• The documents that they are relying on
• A bullet point summary of their argument in support of those orders sought
In the event that either party seeks a lump sum order for costs, his Honour expects that party to be in a position to quantify those costs.
The case outline must be provided by 4pm on Thursday 17 March 2022.
On 17 March 2022 the husband filed a Case Outline indicating he sought the following orders in the proceedings listed on 18 March 2022:
1. This case outline is filed and served pursuant to the direction made by McClelland DCJ to the parties on 14 March 2022.
2. ·The Applicant seeks the following orders:
1) To the extent necessary , an order under rl.31(1) dispensing with compliance with rule 5.08 of the Federal Circuit and Family Court Australia (Family Law) Rules 2021 (hereinafter "the Rules") for the purposes of the Application in a Proceeding listed before McClelland DCJ on 18 March 2022 at 2:30pm.
2) That the Respondent be ordered to file and serve Points of Defence known to the law on or before 25 March 2022 at 4:30pm.
3) Subject to compliance with Order (2) by the Respondent, the Applicant file and serve any Points in Reply on or before 1 April 2022 at 4:30pm.
4) An order under r2.33(a) of the Rules that the Initiating Application by the Applicant seeking child support stay orders filed 29 November 2021, the affidavit in support sworn 18 November 2021, the Financial Statement sworn 23 November 2021, and the Genuine Steps Certificate filed 29 November 2021, all be authorised by the Court to have been personally served on the Respondent on 9 December 2021.
5) (i) That the Respondent, select one of the valuers referred to in annexure “H12” to the Applicant’s affidavit sworn 1 March 2022, to undertake a current valuation of the former matrimonial home, being the property at [D Street, Suburb E] and advise the Applicant of the name of the valuer on or before 21 March 2022 at 4:30pm.
(ii) The parties shall jointly instruct such agreed valuer in Order (5)(i) on or before 28 March 2022 at 4:30pm, and the costs of such valuation be met equally by the parties.
6) (i) That the parties participate in family dispute resolution with a Judicial Registrar of the Court authorised as a Family Dispute Resolution Practitioner in relation to the Applicant’s proposed parenting orders, on a date to be advised by the Court.
(ii) If family dispute resolution in accordance with order (6)(i) does not result in the making of consent parenting orders by the parties, or compliance with subclauses 3(4)-(7) of Schedule 1 Pre-action procedures Part 2 Parenting proceedings, of the Rules, does not result in agreement by the parties, the Applicant husband is granted permission to commence parenting proceedings in the Court seeking the orders in the attachment to annexure “H14” to the husband’s affidavit sworn 1 March 2022.
7) That due to the Respondent wife, and her solicitor’s unreasonable non-compliance with the pre-action procedures under the Rules, an order or orders under clause 2 or 6 of Parts 1 & 2 of Schedule 1 of the Rules, that the respondent repay the $6,600 for the Respondent’s costs paid by the Applicant on 28 February 2022, within 7 days of the making of this order.
(As per original)
The respondent wife filed an Outline of Case Document (Interim Hearing) on 17 March 2022 and sought orders for the husband’s application to be dismissed with costs.
EVIDENCE
The husband sought to rely on the following evidentiary material;
·the husband’s affidavit filed 16 December 2021, paragraphs 6–10;
·the husband’s affidavit filed 1 March 2022;
·paragraphs 6–15;
·paragraphs 25–28;
·paragraphs 42–46;
·the husband’s affidavit filed on 16 March 2022 in its entirety.
The wife sought to rely upon:
·The wife’s affidavit filed 16 March 2022;
·Response to Application in a Proceedings filed 16 March 2022;
·Affidavit of Ms R filed 18 February 2022.
CONSIDERATION
I will deal with each of the husband proposed orders in seriatim.
Proposed Order 1
Rule 5.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), by way of summary, provides that a party to interim proceedings may only rely on one affidavit. That affidavit is not to exceed 25 pages and not include more than 10 annexures.
In the absence of objection by the respondent during the course of the proceedings, pursuant to r 5.08(3) of the Rules, I granted the applicant leave to rely upon the affidavit evidence to which I have referred above. There is, accordingly, no need to make Order 1 as proposed by the husband which, was, with respect, misconceived, given the power in rule 5.08(3) to which I have referred. I therefore dismiss the husband’s application for proposed Order 1.
Proposed Order 2
Proposed Order 2 as sought by the husband is redundant. The wife filed and served her Points of Defence dated 15 March 2022 on 16 March 2022.
During the course of the proceedings the husband complained regarding the adequacy of the respondent’s Points of Defence. Comparatively, the wife contended that her Points of Defence were adequate and appropriate for the relevant requirements of s 79A.
Counsel for the wife foreshadowed the possibility of an application for the husband’s s 79A application to be struck out on the basis of the inadequacy of those pleadings.
In circumstances where the adequacy of those pleadings is a matter to be determined, it is inappropriate for me to make any assessment or provide any commentary on the parties’ respective contentions in the absence of an appropriately focused debate. This would occur when the issue of the adequacy of the pleadings and the merit of the s 79A application is properly before the Court.
In circumstances where the Points of Defence have been filed, proposed Order 2 as sought by the husband is redundant. I dismiss the husband’s application in that respect.
Proposed Order 3
The respondent wife is not seeking an order for the applicant husband to file Points in Reply as contended in proposed Order 3. However, Counsel for the respondent indicated that the wife had no objection to the applicant filing Points in Reply if he elected to do so. In those circumstances the order as sought by the husband is unnecessary and I will not make an order in those terms.
Proposed Order 4
The respondent wife acknowledges having been served with the relevant documents referred to in proposed Order 4 of the husband. Save to the extent that proposed Order 4 replicates proposed Order 8 of the Husband’s Application in a Proceeding filed on 24 December 2021 it is unclear why the husband sought to press Order 4. This is in circumstances where the issue of service is not in dispute and where directions have been made regarding the progress of the husband’s application for orders in which he is seeking a stay of his child support obligation. Accordingly, I will not make an order in terms of Order 4 as proposed by the husband.
Proposed Order 5
Proposed Order 5 as sought by the husband seeks an order for the Court to appoint a single expert valuer of the former matrimonial home. This matter was considered by the Court as recently as 11 February 2022 at which time the judicial registrar noted why she had rejected a similar application, as follows:
The Court was not minded to order the appointment of a Single Expert on this occasion and put the parties to that expense when there is no indication of when the s79A application may be determined.
Despite the propensity of the husband to file numerous Applications for Review, in this instance, he did not file an Application for Review of the registrar’s decision. The decision itself was, once again, an eminently reasonable decision for the judicial registrar to have made in the context of responsible case management having regard to the issue of proportionality of costs being incurred by the parties to this litigation.
The evidence presented by the husband in support of his application did not include any evidence justifying the decision of the judicial registrar made on 11 February 2022 being revisited at this point in time. I therefore dismiss the husband’s application for proposed Order 5.
Proposed Order 6
Proposed Order 6 sought by the husband also seeks to revisit a related matter to which was determined by the judicial registrar on 11 February 2022. Specifically, the notations to which I have referred record the judicial registrar noting that, as, at that time, there were no proceedings before the Court seeking parenting orders pursuant to Part VII of the Act. The judicial registrar lacked jurisdiction to make orders in respect to what were at that time, non-existent parenting proceedings. It is to be noted that the judicial registrar’s comments were in respect to a foreshadowed application by the husband to revisit parenting arrangements in light of the wife moving to Suburb Q as opposed to the parties simply being referred to Family Dispute Resolution. Nonetheless, he was clearly on notice that the Court was functus officio in respect to matters that had been determined by Rees J. In the absence of their being an application before the Court for parenting orders pursuant to Part VII of the Act, the Court lacked jurisdiction to make orders in respect to speculated but still not yet commenced parenting proceedings.
Moreover, the husband’s application for proposed Order 6 is misconceived. It is certainly the case that, as noted by the husband that parties are required pursuant to the provisions of s 60I of the Act to attempt to resolve their dispute in respect to parenting matters prior to commencing proceedings. Specifically, an applicant in parenting proceedings, unless an exemption applies, is required by that section to obtain a certificate of attempted dispute resolution. In circumstances where the wife maintains that the current parenting orders made by Rees J in October 2020 should not be revisited, the husband, understandably anticipates that the wife will not participate in the process of Family Dispute Resolution. That will, however, not prevent the husband from obtaining and providing to the Court a s 60I certificate being the precondition to him commencing proceedings pursuant to Part VII of the Act.
If and when such proceedings are commenced by the husband it will, at that time, be necessary for the Court to consider whether to proceed with the husband’s application having regard to the principles adumbrated in the well-known case of Rice and Asplund (1979) FLC 90-725. By way of summary, the principles require a party seeking to revisit final parenting orders to establish that there have been changed circumstances, of such significance that those orders should be reviewed.
In summary, in the absence of there being any proceedings before the Court pursuant to part VII, I dismiss the husband’s application for proposed Order 6.
Proposed Order 7
The husband’s proposed Order 7 is also, with respect, misconceived. When the matter was last before me on 15 February 2022, I granted the husband’s application for an adjournment on the basis of an undertaking provided by the husband that he would pay the costs of the wife thrown away by the adjournment assessed in a lump sum amount of $6,600.
In ex tempore reasons for judgement delivered on that day I explained why I sought such an undertaking. Essentially, it was because the husband’s application for an adjournment was sought in circumstances where he had failed to comply with the provisions of the Rules in respect to the filing and serving on an affidavit in support of the orders he was seeking. Instead of presenting evidence in an appropriate form and in accordance with the times prescribed in the Rules, the husband sought to rely upon a letter which he had unilaterally forwarded to my Chambers on the night prior to the hearing as the evidentiary basis upon which he sought the substantive orders as set out in his Application in a Proceeding filed on 24 December 2021.
As an alternative to proceeding with an application in the absence of evidence, the husband sought an indulgence from the Court namely that the proceedings be adjourned to enable him to file and serve the necessary evidentiary material in support of his application. As noted, that indulgence was granted on the basis of the conditions to which I have earlier referred.
The requirement for the husband to pay the costs of the wife thrown away related to the husband’s own conduct which resulted in not only the wife’s resources being wasted in respect to the adjourned hearing, but also the Court’s time. The husband’s application for proposed Order 7 fails to appreciate and/or attempts to ignore the basis upon which the undertaking was sought from him to pay the wife’s costs.
It is unnecessary to consider the husband’s argument as to the existence of jurisdiction, pursuant to s 117 of the Act, for the Court to effectively revisit and rescind that part of the order I made on 15 February 2022. This required the husband to provide the undertaking because, even if such jurisdiction exists, in the exercise of my discretion for the reasons to which I have referred, I decline to do so.
Accordingly, the husband’s application for proposed Order 7 is also dismissed.
COSTS
The respondent wife contended that in the event of the Application in a Proceeding being dismissed that the applicant husband should pay the costs of the wife in the lump sum amount assessed as $7676.46 in accordance with the respondent’s schedule of costs dated 18 March 2022.
The issue of costs in respect to proceedings under the Act is to be determined in accordance with s 117. That section relevantly provides that:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to 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;
(c)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 pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to 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
(g) such other matters as the court considers relevant.
The general rule, as set out in s 117(1) of the Act, is that each party to the proceedings shall bear his or her own costs. This is, however, subject to s 117(2) of the Act which provides that, if the Court is satisfied that there are circumstances justifying it, the Court may make such order as to costs as it considers just. Beyond the “essential preliminary” consideration of those matters set out in s 117(2A) of the Act, there is no “additional or special onus” on the applicant for the Court to make an order for costs: Penfold v Penfold (1980) 144 CLR 311 at [13].
The Full Court has held in I and I (No. 2) (1995) FLC 92–625 at 82,277, that the relevant matters in s 117(2A) of the Act “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.
No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion: Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664 at [24] per Strickland J.
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court confirmed that it was not necessary for each of the factors listed in s 117(2A) to be met in order for the Court to make a costs order. The Full Court per Kay, Warnick and Boland JJ stated, when referring to s 117(2A) at [41]:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
In terms of s 117(2A)(a) the parties financial circumstances have been set out in Financial Statements filed in these proceedings. I am satisfied that the husband has the financial resources available to satisfy an order for costs.
The primary basis upon which I make an order for the husband to pay costs is, as set out in s 117(2A)(e), namely that he has been wholly unsuccessful.
Additionally, in terms of section 117(2A)(c) the respondent has unnecessarily incurred costs as a result of the applicant husband abandoning the substantive portion of his Application in a Proceeding filed 24 December 2021. As set out above, the most significant issue in those proceedings was whether the husband should be granted injunctive relief in respect to the wife’s dealings with the former matrimonial home. The husband’s submission at the hearing on 18 March 2022 was that during the course of the proceedings on 15 February 2022 he advised the Court and the applicant that he did not intend to proceed with that aspect of his claim upon the resumption of the adjourned proceedings on 18 March 2022. I have reviewed the transcript of the proceedings of 15 February 2022 and there is, with respect, no such indication.
Moreover, even leaving that issue aside, in the context of the history to this litigation and in circumstances where the respondent has been wholly unsuccessful and where he has pressed an application for orders which, even if granted, would have been of little utility at this point in the litigation, it is appropriate that he meet the costs incurred by the wife in responding to his application.
In that context, pursuant to s 117(2A)(g) I have also had regard to the “overarching purpose” provisions set out in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act2021 (Cth). Those sections provide:
67 Overarching purpose of family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
68 Parties to act consistently with the overarching purpose
(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2)A party’s lawyer must, in the conduct of a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) (including negotiations for settlement) on the party’s behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3)The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b)the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i) the costs that the lawyer will charge to the party; and
(ii)any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
Note:Paragraph (b)—the Federal Circuit and Family Court of Australia (Division 1) may make an order as to costs under section 117 of the Family Law Act 1975 if the Court is of the opinion that there are circumstances that justify it in doing so.
(4)In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 1) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5)Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 1) or a Judge may order a party’s lawyer to bear costs personally.
(6) If the Federal Circuit and Family Court of Australia (Division 1) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.
The manner in which the husband has conducted himself in this litigation has been the antithesis of what is required of a party pursuant to the overarching purpose provisions. The Court has a positive obligation to effectively case manage matters before it. The toleration of the conduct engaged in by the husband undermines not only the efficient disposal of the current proceedings but also has the potential to erode public confidence in the administration of justice.
The overarching provisions to which I have referred replicate those set out ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (“the FCA”). As observed by Gray J in Modra v Victoria (Dept of Education and Early Childhood Development and Dept of Human Services) (2012) 205 FCR 445 at 455, [31], “the impact of those sections on the obligations of legal practitioners practising in this court is significant.” It is clear those same obligations also apply to the litigants themselves including unrepresented litigants; Camm v Linke Nominees Pty Ltd (No 4) [2013] FCA 223, [52] (“Camm”).
Justice Jagot noted in Sklavos v Australasian College of Dermatologists [2013] FCA 1065, at [35] the need for parties to be mindful of ss 37M and 37N of the FCA:
These provisions are not merely exhortatory. The duty is real and can be enforced, if necessary, by appropriate costs orders.
Justice Tracey in Kiefel v State of Victoria [2014] FCA 411,observed at [44]
By s 37N(1) a party is required to conduct a proceeding in a way that is consistent with the overarching purposes identified in s 37M. By s 37N(2) the party's lawyer must take into account the overarching duty imposed by subsection (1) and assist his or her client to comply with that duty. A failure of either the party or the practitioner to comply with these obligations may have costs consequences.
In Specsavers Pty Ltd v Optical Superstore Pty Ltd (2012) 208 FCR 78 the Full Court of the Federal Court of Australia upheld the decision of Katzmann J, at first instance, where her Honour reduced the amount of costs they could recover as a result of the parties failure to comply with the overarching purpose obligations. The Full Court stated at 86, [57]:
The power, indeed duty, of the Court to regard the failure of a party or its lawyer to comply with the s 37N duties constitutes a powerful mechanism to encourage compliance with those duties” (Bold emphasis added)
Significantly in Camm at [54], Tracey J held that:
One element of the overarching purpose is “the efficient use of the judicial and administrative resources available for the purposes of the Court”. Another is “the efficient disposal of the Court’s overall caseload”. Conduct on the part of a litigant or a practitioner which impacts adversely on the pursuit of these purposes may be taken into account when costs are awarded.
Accordingly, the applicant husband’s failure to act in a manner that is consistent with the overarching purpose is an additional reason as to why I have determined that it is appropriate and in the interests of justice for an order for costs to be made against him. In that context, as Keane J observed in Rozenblit v Vainer (2018) 262 CLR 478 at 492, [42]:
Litigation is sufficiently stressful and expensive for all concerned without the unnecessary aggravations of additional cost, stress, distraction and delay occasioned by inefficiency, incompetence or sheer disregard of the rules. To the extent that the contention advanced on behalf of [the appellant] reflects an assumption that inefficiently or incompetently conducted litigation, and the waste in terms of time and money inflicted upon the other party or parties, is nevertheless consistent with the promotion of access to justice because the end may ultimately justify the means, that assumption must be rejected. Inefficient or incompetent conduct of litigation may cause injustice even if it is not intended to do so. Litigation that is conducted inefficiently, incompetently or in disregard of the rules by one party is no less oppressive to the other party because it is not intended to be oppressive.
(Bold emphasis added)
For all these reasons above, I order that the applicant husband is to pay the costs of and incidental to the wife in respect to these proceedings. In circumstances where I am not, however, in a position to determine the extent to which there is an overlap between preparations associated with the proceedings on 15 February 2022 and 18 March 2022, I am not comfortable in determining a fixed lump sum amount for those costs.
Accordingly, the order I make is for the applicant husband to pay costs of and incidental to the Applicant’s Application in a Proceeding filed on 24 December 2021 as and from 16 February 2022 to the extent that those costs do not overlap with costs incurred by the respondent wife in the period prior to and including 15 February 2022.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 7 April 2022
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