Akbar and Akbar (No 2)

[2016] FamCA 349

FAMILY COURT OF AUSTRALIA

AKBAR & AKBAR (NO 2) [2016] FamCA 349

FAMILY LAW – COSTS – Application by the wife that the husband pay her costs reserved in a fixed sum from a previous hearing date – where the husband has repeatedly failed to file material – where the husband has failed to comply with court orders – where the husband’s failure to file material by the previous hearing date likely meant that parts of the wife’s application which were not agreed could not proceed on that day – interim orders made for costs in a fixed sum

Family Law Act 1975 (Cth)

I & I (No 2) (1995) FLC 92-625; 22 Fam LR 557
Kohan & Kohan (1993) FLC 92-340; 16 Fam LR 245

APPLICANT: Ms Akbar

RESPONDENT: Mr Akbar

FILE NUMBER: MLC 1699 of 2015

DATE DELIVERED: 16 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 6 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tulloch

SOLICITOR FOR THE APPLICANT: Dominic Esposito Solicitors

COUNSEL FOR THE RESPONDENT: Mr Balot

SOLICITOR FOR THE RESPONDENT: Balot Reilly & Associates

Orders

IT IS ORDERED BY CONSENT THAT

1. The husband and the wife each forthwith do all acts and things necessary to borrow the sum of $100,000.00 (“the loan”). Upon receiving the said sum the parties to cause it to be paid to Dominic Esposito Solicitors on behalf of the wife by way of a part property settlement.

2. Until further order the husband to make all payments of the loan as and when they fall due.

IT IS FURTHER ORDERED THAT

1. Paragraph 6 and 8 of the orders made 2 March 2016 be discharged.

2. Until further Order the husband make all payments as and when they fall due to the mortgage, loan and any other liability and any other outgoings for all properties owned by him and/or the wife or an entity owned or controlled by them including the property at 177 Tenterfield Drive Burnside Heights.

3. The husband forthwith do all acts and things as may be necessary and including the provision of all relevant documents to the Accountant (B Accountants) to enable financial statements and taxation returns to be completed for the financial year ending 30 June 2014 and 30 June 2015 for himself personally, and all companies, trusts and businesses that the husband owns operates, controls or has a financial interest in, at his expense to be completed and provided to the wife’s solicitors by 4.00 pm on 27 April 2016.

4. Both parties’ costs of this day be reserved.

IT IS FURTHER ORDERED THAT

1. The time for the husband to file and serve his response, financial statement and any affidavit in support pursuant to the order of Bennett J made 2 March 2016 be extended to 4.00 pm on 20 April 2016.

2. The husband pay the wife’s costs of 2 March 2016 fixed in the sum of $3,000 and reserved to this day to be paid by 4.00 pm on 8 June 2016.

3. All extant applications be otherwise adjourned for mention before Justice Macmillan at 9.00 am on 21 April 2016.

IT IS CERTIFIED THAT

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Akbar & Akbar (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1699  of 2015

Ms Akbar

Applicant

And

Mr Akbar

Respondent

REASONS FOR JUDGMENT

1. The wife’s Initiating Application filed 12 February 2016 was listed for hearing before me in the Judicial Duty List on 6 April 2016.  On that date I made orders  by consent with respect to the parties borrowing the sum of $100,000 to be paid to the wife by way of part property settlement, further orders that until further order the husband continue to make all the loan repayments with respect to the properties owned by the husband and/or the wife or any entity controlled by them, that the husband do all acts and things necessary to complete both the financial statements and tax returns for himself personally and for the companies and trust owned or operated by him or in which he has an interest, that the time for the husband to file and serve a Response to the wife’s Initiating Application, a financial statement and any affidavit be extended to 4.00 pm on 20 April 2016 and that the matter be listed for mention before me at 9.00 am on 21 April 2016. I also ordered that the husband pay the wife’s cost of 2 March 2016 fixed in the sum of $3,000 to be paid by 4.00 pm on 8 June 2016. I reserved my reasons with respect to the order for costs. These are those reasons.

2. The first return date of the matter in the Judicial Duty List was on 2 March 2016. On that date the husband had not filed any answering material and Bennett J made orders by consent that the husband file and serve a response to initiating application, a financial statement and any affidavit in support by 4.00 pm on 30 March 2016. Her Honour otherwise adjourned the matter to the Judicial Duty List on 6 April 2016. Bennett J also made orders by consent and until further order with respect to spousal maintenance, for the payment of the mortgages and other outgoings for the various properties owned by the husband and/or the wife and their associated entities and restraining the husband from disposing of any matrimonial property or resources save and except in the ordinary course of business. The costs of that day in the sum of $3,000 were fixed and reserved to the adjourned date.

3. On 6 April 2016 the husband had still not filed his answering material and sought an adjournment of the matter. That application was heard by Cronin J and dismissed and the matter was thereafter listed before me. It was at the conclusion of the hearing before me that the wife sought an order that the husband pay the costs that has been fixed and reserved on 2 March 2016.  

Legal Principles

1. The general rule in proceedings in this Court is that parties to the proceedings shall bear their own costs (s 117(1) of the Family Law Act 1975 (Cth) (“the Act”). However, s 117(2) of the Act provides that if the court is of the opinion that there are circumstances that justify it making an order for costs it may make such order as it considers just. The matters the court must consider when deciding whether there are circumstances that justify it making an order for costs and what if any order it should make are set out in s 117(2A) of the Act as follows:

   (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.

2. The matters in s 117(2A) of the Act must, as the Full Court said in I & I (No 2) (1995) FLC 92-625; 22 Fam LR 557 at page 82,277, “…all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.

3. Generally when the court makes an order for costs those costs are payable on a party/party basis and “… the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind” (Kohan & Kohan (1993) FLC 92-340; 16 Fam LR 245 at page 79,614). The parties in this case had agreed upon the amount of the wife’s costs and those costs were fixed by the order made by consent by Bennett J.

Discussion

1. The husband and wife separated in September 2012 although they both lived in the former matrimonial home until 15 August 2014. A divorce order was made on 22 May 2015. The wife is not currently in employment and has the care of all three of the children of the marriage. It is the wife’s evidence that the husband controlled their finances during the marriage and that she has received little support from him since separation apart from lump sums she has received from the sale of property and monies she has been able to transfer from a NAB account to which she had had access. It is her case that the support she has received and the monies to which she has had access have not been sufficient to meet her needs. The wife also says that she does not have access to the funds she needs to conduct this litigation and it is part of her application that there should be a payment to her by way of partial property settlement.

2. Although the husband has not filed any answering material as yet there are a number of matters which are not contested or that he has conceded. They include that he is a medical practitioner, that in 2014 he and the wife had a combined taxable income of over $200,000 per annum, that since separation he has sent at least AUS$100,000 to Country C and that he estimates that the parties’ net assets are at least $5 million. Not surprisingly given the estimates as to the value of their property interests neither party in this case is in receipt of legal aid. I am satisfied, notwithstanding that the husband has not filed any answering material, that in all of the circumstances the husband’s financial position is likely to be superior to the wife’s and that he has a capacity to meet the order for costs sought by the wife.

3. The wife’s Initiating Application was filed on 12 February 2016. The initiating documents were personally served upon the husband on 16 February 2016. The husband had a little over two weeks in which to file and serve answering material. The reasons given by his solicitor as to why he had not filed any answering material included that his circumstances were complex and that he had not had the money to pay his solicitors to prepare the documents. The difficulty with this proposition is that until he files his answering material there is no evidence to support the assertions made by the husband. It was submitted by the husband’s solicitor that as evidenced by the orders made by consent by Bennett J on 2 March 2016 a lot was achieved on that date. In those circumstances however, even if he could not file all of the material upon which he sought to rely in relation to all of the issues, I am satisfied that because he filed no material those parts of the wife’s application in relation to which there was no agreement could not proceed and it was on that basis that the matter had to be adjourned.

4. In circumstances where orders were made by consent in relation to some aspects of the mother’s application it cannot be said that either party was either wholly successful of unsuccessful. There is also no evidence in this case of any offer made in writing by either party.

5. In all of the circumstances I am satisfied that there are circumstances which justify the Court making an order that the husband pay the wife’s costs of 2 March 2016 fixed in the sum of $3,000. I have made that order.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 May 2016.

Associate: 

Date:  16 May 2016