Almer and Stierznow-Almer

[2010] FamCA 401

FAMILY COURT OF AUSTRALIA

ALMER & STIERZNOW-ALMER [2010] FamCA 401

FAMILY LAW – PROPERTY – Interim

APPLICANT: Mr Almer

RESPONDENT: Ms Stierznow-Almer

FILE NUMBER: PAC 777 of 2009

DATE DELIVERED: 3 May 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 3 May 2010

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Doust,
NAVADO LAWYERS & SOLICITORS

Orders

1. That the husband’s Application in a Case filed 4 March 2010 is hereby dismissed.

2. That costs are reserved to the Judicial Registrar who will decide the substantive proceedings on a final basis.

IT IS NOTED that publication of this judgment under the pseudonym Almer & Stierznow-Almer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 777 of 2009

MR ALMER

Applicant

And

MS STIERZNOW-ALMER

Respondent

REASONS FOR JUDGMENT

1. In this matter, the husband has filed an application on 4 March 2010.  That is the application that I am now dealing with.  I shall deal with the various orders that he seeks in order that they appear in his application.  The first order that the husband seeks, relates to orders made by a judicial registrar on 22 February 2010.  In effect, what the husband is seeking to do is appeal from those orders by way of a re-hearing.  His application for that re-hearing is within time.  He seeks, firstly, review of an order, which was made on 22 February, by the judicial registrar, namely order 5(1), to the effect that the costs of Mr P, an accountant, who has been appointed in these proceedings as a single expert be paid from the proceeds of sale of the former matrimonial home at S in priority to all other claims other than those that as a matter of law must have priority.  What the husband now asks is that the wife pay the costs and expenses of the expert appointed by the Court; that is, the costs of the bookkeeping, the accounting and the preparation of outstanding tax returns of TS Company Pty Limited, which is the parties’ company. 

2. However, on 28 April this year, the parties filed consent orders.  One of those orders relates to the same costs.  It provides, by order 13(4)(a), for the payment of Mr P’s fees from the proceeds of sale of the former matrimonial home.  There has been no appeal from that order, and that order will stand, whatever order I make, as I am not prepared, and it would completely improper of me, to make an inconsistent order.  In those circumstances, I should not make the order sought by the husband because that will not make any difference, apart from then resulting in two inconsistent orders.  I should refuse, and shall refuse, the husband’s application for the wife to pay the costs of the expert. 

3. I should add that the basis that the husband seeks for me to order the wife to pay those costs, is, he says, that the wife has, in effect, understated the parties’ assets by $300,000, which he claims she stole and has secreted.  He further says that there will not be enough money from the sale of the home to meet the expert’s costs, and they are both reasons why I should make the order on appeal that he seeks.  However, the essential issues are, firstly, whether the wife stole the money, and secondly, whether there will be enough to pay the expert’s costs.  These are not matters that I can decide.  These are matters which ought to be decided by the judicial officer who is going to finally hear this matter.  The matter will soon be listed for a compliance check, and then listed for hearing by a judicial registrar.  It is for that judicial registrar to decide the facts upon which the husband seeks to base this aspect of the application.  The Judicial Registrar should be able to do that and provide then, if necessary, for any orders which adjust the situation to meet a need for the wife to pay costs out of any money she holds, and by that I mean expert’s costs.  There is no suggestion that Mr P is refusing to complete his report because he has not been paid in full, or will refuse to do so.

4. The next order that the husband seeks is that the wife not be permitted to obtain any order that reduces the joint matrimonial assets prior to final determination of the case.  This is an order about a prospective application for an order. This aspect of the matter is not only completely premature but is quite outside the intent of s118, the only part of the Act which would give the Court jurisdiction to make such an order.  The wife has not sought to make an application for any such order which should only be dealt with on the merits of that application, and the merits of any defence to it that the husband puts forward.  In those circumstances, it is an entirely inappropriate application and should be dismissed, and I shall dismiss that aspect of the application. 

5. Then the husband seeks that he be allowed to pay his part of the costs of another expert report from the proceeds of sale of the former matrimonial home.  The principles applying to that are the same as I have referred to already. Accordingly, I should dismiss, and shall dismiss, that application. 

6. The husband then seeks that he be paid, in what he calls first priority, all of the payments and costs for accounting, bookkeeping and preparation of tax returns of AL Pty Limited, which he has already incurred.  He seeks that they be paid from the proceeds of sale of the former matrimonial home.  That is, in effect, a costs order, which should be dealt with at the appropriate time, pursuant to section 117A of the Act, and not at this time.  It is not for me to decide, it is for the Judicial Registrar, after making his final orders, to decide what if any costs the husband should receive back, or receive from the wife for his accountant. It may be, in his final orders, he could in any event, determine what, if any, costs that the husband has paid for accounting fees he should receive back as part of his share of the principal.

7. The next application that the husband makes is that the Court make a finding of fact and rule on the late filing of documents and non-compliance with most of the court orders by the wife as set out in the husband’s affidavit filed 1 December 2009.  A bare ruling about this is beyond the court’s power.  That is not the way courts act.  If, in an application for costs, or for other orders at the final hearing, the husband makes such an application and is successful the Judicial Registrar who hears the matter to finality can decide how to compensate him, if it is necessary.  In those circumstances, I should not make such a declaratory ruling. I should dismiss that aspect of the proceedings and the application of the husband and I shall dismiss that aspect of the husband’s application.

8. The next application that the husband makes is that the wife pay $30,000 to him for delaying these proceedings and for not complying with orders of two individual registrars on 8 October 2009 and 13 October 2009.  It is not for me to make such an order, particularly to impose a penalty, and I shall refuse to comply with that aspect of the husband’s application and dismiss it.

9. The next parts of the husband’s application are procedural in relation to the trial before a judicial registrar.  Those are matters entirely, in my view, for the Judicial Registrar and I should not involve myself in preparation for trial before him.  I shall refuse, for that reason, to make the orders sought in paragraph 6 of the husband’s application. 

10. As to paragraph 7, exactly the same as I have said for paragraph 6 can be said about it.  The husband has not sought orders, pursuant to paragraph 3 of his application, because there are already orders for that property to be sold.  The only other orders that the husband seeks are for costs, as agreed or assessed.

RECORDED   :   NOT TRANSCRIBED

1. In these proceedings, the wife has sought costs.  I am of the view that I should not determine that issue at this stage.  There is a very simple reason why;  the husband alleges that the reason why there is a problem with funds is that the wife has concealed or stolen the $30,000 of them. It is certainly the case that his applications were all made largely because he claims the wife has stolen $300,000, or thereabouts, and has therefore put him in a position where there are insufficient funds to meet the costs of the expert. He also claims that the wife has, in other ways, delayed and caused problems, increasing the expert’s costs, and increasing his costs. 

2. In my view, if the husband is right in what he says, there is a very strong case for making costs orders of some description, or at least not making a costs order against the husband. There would be a strong case for making a costs order in his favour.  If, however, what he says is not found to be true, there is probably a strong case for making a costs order against the husband.   In those circumstances, the issue relating to costs of today’s application should be stood over to the Judicial Registrar, pending the making of final orders in these proceedings, rather than be determined by me when I am in a situation where I cannot know what the facts are. I shall stand the issue of costs of today’s application over to the Judicial Registrar for determination after final property orders have been made in these proceedings. I shall dismiss the husband’s application in the case, filed 4 March 2010.

I certify that the preceding eleven (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen  

Associate:     

Date:              25 May 2010