ALEXOPOULOS & FARLING (No.3)

[2019] FCCA 3953

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALEXOPOULOS & FARLING (No.3) [2019] FCCA 3953

Catchwords:
FAMILY LAW – Costs.

Legislation:

Family Law Act 1975 (Cth) s.117

Federal Circuit Court Rules 2001, sch.1

Applicant: MS ALEXOPOULOS

Respondent: MR FARLING

File Number: SYC 250 of 2018

Judgment of: Judge Boyle

Hearing date: 18 June 2019

Date of Last Submission: 18 June 2019

Delivered at: Sydney

Delivered on: 19 June 2019

REPRESENTATION

Counsel for the Applicant: Ms Wall

Solicitors for the Applicant: Walter & Elliott Family Lawyers

Counsel for the Respondent: In person

ORDERS

1. The proceedings are transferred to the Family Court of Australia at Sydney and are listed for directions before a Registrar on 1 July 2019 at 10:30am.

2. The husband shall pay to the wife her costs in the sum of $5,228 with such sum to be paid from and prior to the husband receiving his share of the property distribution upon the resolution of the matter by way of final hearing or otherwise.

IT IS NOTED that publication of this judgment under the pseudonym Alexopoulos & Farling (No 3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 250 of 2018

MS ALEXOPOULOS

Applicant

And

MR FARLING

Respondent

REASONS FOR JUDGMENT

1. The substantive proceedings in this matter concern both property and parenting issues.

2. The matter was listed in the first instance for an interim hearing on 19 March 2018. Judgment was delivered in relation to that matter on 21 March 2018, and orders were made for the husband to pay spouse maintenance in the sum of $300 per week, and one half of the outgoings on the former matrimonial home at B Street, Suburb C. The husband’s application for a sale of the former matrimonial home was not successful.

3. The husband filed an application in case on 16 August 2018, supported by an affidavit and financial statement, seeking orders for the sale of the former matrimonial home and a discharge of the orders for spouse maintenance.

4. The matter was listed for mention on 28 August 2018. It was adjourned from there to 5 October 2018 for an interim hearing on the husband’s application in a case. During the course of the interim hearing the husband’s sought to provide further documents. Directions were made permitting that to occur by 9 October, with the wife having an opportunity to respond by 11 October. On 12 October, the matter was listed by telephone and there was a direction for further submissions to be filed by 21 November 2018. The wife was permitted to file any further updating material.

5. Ultimately the husband’s application in a case filed on 16 August was dismissed. At that time directions were made for filing written submissions for costs. There were also orders made for valuation of the former matrimonial home and the wife’s property in Greece and further orders made with respect to disclosure.

6. The wife seeks an order for costs. In written submissions she seeks an amount of $28,948 by reference to the Family Court scale, although she says the costs incurred were actually $35,172. The relevant scale, as I have raised with the wife’s solicitor, is the Federal Circuit Court scale for costs. On my reading of the scale, at item 3, costs for an interim hearing are $1,867. Item 13 then permits a half day or a full day with respect to hearing fees. Given that the matter was dealt with over different dates, a full day hearing fee is the most appropriate. That amount is $2,241. Item 12 allows an advocacy loading, which is 50 per cent of the daily hearing fee, being $1,120. The total under the Federal Circuit Court scale is $5,228.

7. Section 117(1) sets out what is commonly referred to as the “ordinary rule” that each party in proceedings before this Court bear their own costs. Section 117(2) provides the Court with a discretion to order costs if it is of the opinion that there are circumstances justifying doing so, subject to the relevant subsections.

8. The relevant circumstances to be considered are, firstly, the financial circumstances of the parties. In this instance, the wife’s income is approximately half that of the husband. She earns $109,000 per annum; the husband $219,000 per annum. The orders require the husband to meet one half of the mortgage and the outgoings and pay spouse maintenance to the wife in the sum of $300 per week. At the time that the submissions were made, the wife detailed that there were arrears outstanding with respect to spouse maintenance, the mortgage and the council rates.

9. Neither of the parties is in receipt of a grant of Legal Aid.

10. The next relevant matter is the conduct of the parties in relation to the proceedings. The husband had previously sought the sale of the former matrimonial home. He was unsuccessful in that application. The application in a case represented a further attempt by him to obtain an order for sale of the former matrimonial home, and a discharge of the order made with respect to spouse maintenance.

11. The wife was required to respond to the application and participate in an interim hearing. In terms of conduct, each of the parties raises issues against the other with respect to non-disclosure. The wife raised that the husband has not taken the steps required of him to make proper inquiries about repatriation of funds from Country J to Australia held in his superannuation there. That fund arises from a time the husband was working in Country J. The husband’s evidence is that it is not possible for him to repatriate the funds. If it were possible, there would be a tax impost on him which would render the benefit to be far smaller than it might initially seem. He has provided very limited evidence of what he has done in order to comply with the Court’s orders to repatriate the funds.

12. It was an issue at 21 March 2018 that there had been limited disclosure provided by the husband about the funds in Country J. As I understand it, that is still an outstanding issue. With respect to H Bank accounts that the husband had in Country J, there were orders for disclosure on 6 July 2018. At the time of the interim hearing, those orders for disclosure had not been complied with.

13. In the course of the interim hearing, the husband sought to raise various other matters. He sought leave, which was granted, to provided further documents. This entailed a large bundle of material being provided after submissions had been made. This required the opportunity for further submissions to be made by the parties. The wife was put to the expense of answering those documents, and attending to further submissions. It is not clear why those documents had not been previously provided by the husband.  

14. The husband filed a further affidavit on 20 November 2018, annexing more documents and, in particular, a number of bank statements. That was material that should have been provided previously by the husband by way of disclosure.

15. For his part, the husband contends that the wife has failed to make proper disclosure with respect to a business entity. This is a business in which the wife previously held a 50 per cent interest with her sister. The husband referred the wife’s failure to disclose a Greek bank account in which she has an interest, and a property in which she has an interest in Greece.

16. The next relevant factor is whether the proceedings were necessitated by a failure of a party to comply with previous orders. Certainly, the application came about by way of the husband re-agitating previously litigated issues, but it seems to me that is not a failure to comply with previous orders.

17. Next, whether one party was wholly unsuccessful. Clearly that section is adverse to the husband’s case, as he was wholly unsuccessful in the proceedings and his application was dismissed. Both parties agree that there were no offers exchanged with respect to dealing with the matter.

18. In considering those relevant issues as to whether there should be an order in favour of the wife’s costs it is relevant these issues had been previously dealt with by the Court. The husband’s application necessitated the further hearing on that issue, and the husband was unsuccessful. The wife was put to considerable expense, which will not be fully met by an order made pursuant to the Federal Circuit Court scale. The expense was greater because the husband provided documents late, during the course of that interim hearing. This required a further listing for submissions, subsequent to the first listed interim hearing date.

19. In the circumstance of this matter, having regard to section 117(2)(a), it is reasonable to depart from the usual order and make an order for costs. I do so in accordance with the Federal Circuit Court scale.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Associate:

Date: 10 March 2021