Archer & Starling (No 2)
[2025] FedCFamC2F 288
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Archer & Starling (No 2) [2025] FedCFamC2F 288
File number(s): CAC 288 of 2020 Judgment of: JUDGE MANSFIELD Date of judgment: 7 March 2025 Catchwords: FAMILY LAW – PROPERTY – Where final orders and ancillary orders for real property abroad to be sold have not been complied with – Where an Application in a Proceeding was brought to give effect to the final orders – Where multiple unmeritorious applications then brought by the respondent – Respondent’s applications dismissed – Harmful proceedings order made – Costs orders made as to liability but not as to quantum Legislation: Family Law Act 1975 (Cth) Pts VIII, XIB, XIVB, ss 79A, 80, 102QA, 102QAC, 102QAG, 114, 114Q, 117
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 2.19, 5.05, 12.13, 12.17, 12.28, 12.47, Schedules 1, 3
Cases cited: Aitken & Aitken (No 8) [2025] FedCFamC1F 49
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1
Bray & Bray (1988) FLC 91-968; [1988] FamCA 22
Fazil & Fazil [2024] FedCFamC1A 54
Goldsmith & Stinson (No 2) (2023) FLC 94-134; [2023] FedCFamC1A 25
Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Marriage of Ravasini (1983) FLC 91–312; [1982] FamCA 62
Molier & Van Wyk (1980) FLC 90–911; [1980] FamCA 85
Nagel & Clay [2021] FamCA 358
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Pera & Pera (2008) FLC 93–372; [2008] FamCAFC 87
Roydon & Roydon [2024] FedCFamC1A 105
Division: Division 2 Family Law Number of paragraphs: 116 Date of hearing: 23 January 2025 Place: Canberra Counsel for the Applicant: Mr Hogg Solicitor for the Applicant: Orman Solicitors For the Respondent: The Respondent appeared in person ORDERS
CAC 288 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ARCHER
Applicant
AND: MR STARLING
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.The husband's Response of 23 May 2024 is dismissed.
2.The husband's Application in a Proceeding of 29 October 2024 is dismissed.
3.The husband's Application in a Proceeding of 22 November 2024 is dismissed.
4.The husband's Application in a Proceeding of 10 January 2025 (sealed on 13 January 2025) is dismissed.
5.The husband's Application in a Proceeding of 21 January 2025 is dismissed.
6.From the husband's share of the proceeds of sale of the property, the wife is to be paid $8,772.00 being 50 per cent of the rent received and retained by him in relation to the property.
7.From the husband's share of the proceeds of sale of the property, the wife is to be paid $4,691.00 being the expenses incurred by her to C Law Firm.
8.From the husband's share of the proceeds of sale of the property, the wife is to be paid $2,682.08 being 50 per cent of expenses incurred by her towards the property.
9.Harmful proceedings order - The husband is prohibited from instituting proceedings under the Family Law Act 1975 (Cth) against the wife without the leave of the court under s 102QAG of the Act.
10.The wife is at liberty to bring an Application in a Proceeding seeking an order or orders that the husband pay her costs of these proceedings, or part of these proceedings, in which the reasons for judgment dated 7 March 2025 and the findings therein may be referred to and relied upon.
11.Order 3 made on 16 December 2022, which provided for the application of proceeds of sale of the property, is varied such that all of the amounts that have been ordered to be paid to the wife by the husband (including Order 4 made on 16 December 2022) are to be paid from the husband's share of the net proceeds otherwise provided for in the final orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
These are property proceedings pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant wife, Ms Archer (“wife”) and the respondent husband, Mr Starling (“husband”).
The wife commenced proceedings in February 2020. On 24 September 2021, final orders were made by consent under Part VIII of the Act. Pursuant to the final orders a residential property known as Property B in Region D, Ireland (“the property”) was to be sold and the net proceeds of sale were to be disbursed 50% to the wife and 50% to the husband. That has still not happened. It is now three years and five months since the final orders were made.
On 10 February 2022, the wife filed an application in order to sell the property to the tenants. On 5 April 2022, that application was dismissed by a registrar on the basis that the final orders already provided for the property to be sold by auction.
On 15 July 2022, the wife filed another application. That was resolved on 16 December 2022 with orders made by a Judge including that:
(a)The wife be appointed sole trustee for the sale of the property; and
(b)The husband pay to the wife costs of and incidental to the application on an indemnity basis fixed in the sum of $38,742.
The orders appointing the wife as sole trustee were not recognised in Ireland such that the wife still needed the husband to sign the Contract of Sale in order to sell the property to the tenants. By June 2023, the husband had not and would not sign the Contract for Sale.
In early May 2024, the wife commenced a proceeding in the Region D Court in order to have this Court’s orders recognised in Ireland.
The wife filed another Application on 15 May 2024 in her efforts to sell the property to the tenants who still wanted to buy it. She also sought an injunction on the husband from interfering, half the rent collected by the husband in the meantime, and costs. That came before the Court on 10 July 2024 and orders were made by a Judge that the husband sign all documents necessary to effect the sale and otherwise be restrained by doing anything else touching upon the sale, rental or any other dealing with the property. The husband signed the documents presented by the wife that day. The wife’s application of 15 May 2024 was dismissed except for the question of costs which was listed for hearing on 18 September 2024.
In late July 2024, the husband filed a counter-claim in the Region D Court proceedings which has had an effect of preventing the sale of the property despite the documents being signed on 10 July 2024 which he alleged were signed under duress.
On 18 September 2024, the question of costs was not reached. Instead, orders were made by a Judge restraining the husband from leaving Australia, charging him with contempt and listing the hearing of the contempt charge on 5 November 2024.
On 29 October 2024, the husband filed an application seeking a number of orders which included that:
(a)The restraint on him leaving Australia be discharged; and
(b)"That this Property Settlement has now been migrated to [Region D] Court in Ireland that the court here in Australia be set aside." [sic]
The charge of contempt was heard by me on 5 November 2024. On 22 November 2024 the charge of contempt was dismissed. Written reasons for judgment were issued. See Archer & Starling [2024] FedCFamC2F 1615. Whilst the charge of contempt was dismissed, many damning findings were made against the husband including:
73 I am satisfied beyond reasonable doubt that the husband was aware of the terms of the orders and understood them. …
74 I am satisfied beyond reasonable doubt that the husband has contravened the orders of 24 September 2021 and the subsequent enforcement orders by:
(a) Failing to take necessary steps for the sale of the property; and
(b) By obstructing the wife’s attempts to sell the property.
…
76 I am satisfied beyond reasonable doubt that the conduct or omissions of the husband amount to a flagrant challenge to the authority of the court. I am so satisfied because:
(a) The husband has transitioned from his initial position of arguing about particular interpretations of the orders to now declaring absolute refusal to co-operate with selling the property to ready, willing and able purchasers and now challenges the jurisdiction of the orders.
(b) Despite a significant costs order on an indemnity basis fixed in the sum of $38,742 being made against the husband on 16 December 2022, he has been found to continue to obstruct the wife and contravene orders.
(c) The husband has declared in open court that he refuses to sell the property to a ready, willing and able purchaser without any proper basis. It is open to infer that the real reason is that he wants to deny the wife that to which she is entitled by not selling the property and I so infer.
(d) The sole purpose of the wife commencing proceedings in Ireland was in order to give effect to the orders of this Court for the property to be sold and the husband conceded his understanding is that is what the wife was trying to achieve in her application. Nevertheless, the husband resists that application and seeks to re-litigate property proceedings as between the parties.
(e) Each of the findings herein has been determined independently of the others. It has not been necessary to rely on any of the findings in order to make determinations on other issues. When all of the circumstances are considered together it cannot be said that the husband has accidentally or unintentionally prevented the sale of the property at a particular step or a particular time. It is not only open on the evidence, it is irresistible to find that the husband has intended to frustrate the effect of the orders and deny the wife that to which she is entitled to since at least October 2021 being only one month after he joined with the wife in asking the Court to make final orders that were just and equitable.
(f) The effect of the husband’s behaviour is not partial or negligible with respect to what the Final Orders sought to do. The property is the only property, real or otherwise, that is specifically dealt with in the Final Orders and the quantum is to 100 per cent of the wife’s entitlement.
On 22 November 2024, the husband filed another application seeking an order “That the Deed of Agreement and Release from the court hearing 23 and 24 September 2021 … be signed … and sent to [the Court] to be stamped or sealed.”
On 4 December 2024, all outstanding applications were listed for hearing on 23 January 2025.
On 10 January 2025, the husband filed another application seeking an order that a copy of a letter from the wife’s solicitors to him in February or March 2018 [be produced].
On 13 January 2025, I made the following notations and orders in chambers:
(1)By 16 January 2025, the parties are to file and serve any agreed Minute of Orders sought (either procedurally or substantively); otherwise
(2)By 21 January 2025, each party is to file and serve a document setting out:
(a)PART A - A consolidated Minute of Orders sought, or, which of the Orders sought across the applications are still sought; and
(b)PART B - A consolidated affidavit, or, precisely which parts of the affidavits already filed are relied on.
(c)PART C - A bullet point statement of the issues to be determined.
On 21 January 2025, the husband filed another application seeking an order that the wife produce the original letter dated 25 September 2019 that was sent to himself by her solicitors in Ireland.
This judgment deals with all of the outstanding applications which are:
(a)The application filed by the wife on 15 May 2024 on the question of costs and the husband's Response;
(b)The application filed by the husband on 29 October 2024;
(c)The application filed by the husband on 22 November 2024;
(d)The application filed by the husband on 10 January 2025 (sealed on 13 January); and
(e)The application filed by the husband on 21 January 2025.
THE HEARING
All of the outstanding applications came before me for hearing on 23 January 2025. The wife was represented by counsel. The husband was self-represented. No applications were made for anyone to be cross-examined. The material relied upon is as follows.
Responsive to the Orders made on 13 January 2023:
(a)There was no agreed minute of orders sought;
(b)All of the respective applications and responses were pressed;
(c)On 21 January 2025, the wife filed:
(i)A consolidated affidavit which included precisely which parts of the affidavits already filed were relied on; and
(ii)A statement of issues in dispute; and
(iii)A minute of orders sought which was superseded by another minute produced on 23 January 2025.
(d)On 21 January 2025, the husband filed:
(i)A bullet point statement; and
(ii)A minute of orders sought (incorrectly titled 'Consent Orders').
(e)The husband did not file a consolidated affidavit nor did he produce anything which identified precisely which parts of the affidavits already filed he relied on. Instead, he sought to rely on all of each of the affidavits he had already filed with respect to each application.
With respect to the wife’s Application in a Proceeding of 15 May 2024:
(a)The wife relied on her affidavit of 21 January 2025 along with what is referenced at paragraph 7 therein.
(b)The husband relied on his Response and his affidavit of 23 May 2024.
With respect to the husband’s Application in a Proceeding of 29 October 2024:
(a)The husband relied on his affidavit of 29 October 2024.
(b)The wife relied on her Response and her affidavit of 21 January 2025, in particular paragraphs 21-39.
With respect to the husband's Application in a Proceeding of 22 November 2024:
(a)The husband relied on his affidavit of 22 November 2024.
(b)The wife relied on her Response and her affidavit of 21 January 2025, in particular paragraph 40.
With respect to the husband's Application in a Proceeding of 10 January 2025:
(a)The husband relied on his affidavit of 10 January 2025.
(b)The wife relied on her Response and her affidavit of 21 January 2025, in particular paragraph 41.
With respect to the husband's Application in a Proceeding of 21 January 2025:
(a)The husband relied on his affidavit of 21 January 2025.
(b)The wife sought and was granted leave to provide a Response orally which was in the same terms as her Responses to the other of the husband's applications - that the application be dismissed with costs.
In addition:
(a)The wife referred to and relied upon the submissions within her Outline of Case Documents filed on 5 July 2024 (with respect to costs on 18 September 2024).
(b)Both parties agreed that the Reasons for Judgment of 22 November 2024 was able to be referred to and relied upon by the Court including adoption of any findings therein.
THE LAW
The substantive provisions of final orders cannot be altered after they have been entered. (Goldsmith & Stinson (No 2) (2023) FLC 94-134 at [130]).
However, the Court is vested with power to make ancillary orders which enable the implementation and enforcement of property settlement orders (Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 342 and 351 –354; Pera & Pera (2008) FLC 93–372 at [58]–[62]; Ravasini & Ravasini (1983) FLC 91–312; Molier & Van Wyk (1980) FLC 90–911).
Provided that, consequential orders may be made after final orders to implement such final orders if they do not “affect the parties’ substantive rights” (Goldsmith at [131]–[133]; Fazil & Fazil [2024] FedCFamC1A 54 at [55]). That power can also be used to spell out the effect of the order where that is not clear. (Ravasini & Ravasini (1983) FLC 91–312).
Where there has been no hearing on the merits, or delivery of reasons for judgment, but final consent orders have been made which embody the agreement of the parties, in matrimonial causes it is to the orders alone that the Court must look. The orders are construed objectively in their entirety without regard to the subjective intentions of the parties and having regard to extrinsic material only to the extent of resolving ambiguity or if the agreement embodied in the consent orders is impugned for illegality, misrepresentation, non-disclosure of a material fact, duress, mistake, undue influence, abuse of confidence or the like (Harvey v Phillips (1956) 95 CLR 235; Langford & Coleman (1993) FLC 92-346 at 79,671; Nagel & Clay [2021] FamCA 358 at [7], [8]).
The husband has not prosecuted a case that the agreement embodied in the consent orders is impugned for illegality, misrepresentation, non-disclosure of a material fact, duress, mistake, undue influence, abuse of confidence or the like. Therefore, as the final orders in this case were made by consent, the proper approach to each of the applications is:
(a)The first question to be addressed is whether the orders proposed by the applicant are consequential rather than variations of substantive final orders. If the latter, this Court has no power to make them. (Aitken & Aitken (No 8) [2025] FedCFamC1F 49 at [29]).
(b)The question is answered by construing the entirety of final orders objectively according to their terms (Bray & Bray (1988) FLC 91-968 at 76,999). The subjective intentions of the parties are irrelevant, as is the question whether they have acted reasonably in attempting to resolve their impasse. (Aitken at [31]).
DETERMINATION
With respect to all of the applications, the state of affairs under Part VIII of the Act is that:
(a)The final orders made by consent on 24 September 2021 have not been set aside pursuant to s 79A of the Act. They remain in force and of effect subject only to any ancillary orders made thereafter.
(b)None of the ancillary orders made in these proceedings have been appealed or sought to be appealed. They remain in force and of effect subject only to having been discharged by subsequent ancillary orders.
With respect to all of the applications, the state of affairs under the final orders and the ancillary orders includes that:
(a)The property is still to be sold and the net proceeds of sale are to be disbursed 50% to the wife and 50% to the husband (the final orders of 24 September 2021); and
(b)The wife has been appointed sole trustee for the sale of the property (Order 1 of 16 December 2022); and
(c)The husband is to pay to the wife costs [as at 16 December 2022] on an indemnity basis fixed in the sum of $38,742 which is to be deducted from the husband's 50% share of the proceeds (Orders 3 and 4 of 16 December 2022).
(d)Unless required by order of this Court, or as requested by the wife in writing, the husband is restrained by injunction pursuant to s.114 of the Family Law Act 1975 (Cth) from otherwise engaging in any action, communication or activity relating to or touching upon the sale, rental or any other dealing of whatsoever type or kind associated with Property B. (Order 3 of 10 July 2024).
(e)Unless required by order of this Court, or as requested by the wife in writing, the Respondent Husband is restrained by injunction pursuant to s.114 of the Family Law Act 1975 (Cth) from causing any third party or intermediary to engage in any action, communication or activity relating to or touching upon the sale, rental or any other dealing of whatsoever type or kind associated with Property B. (Order 4 of 10 July 2024).
(f)The husband is restrained from leaving the Commonwealth of Australia. (Order 1 of 18 September 2024).
The wife’s Application in a Proceeding of 15 May 2024 on the question of costs and the husband’s Response
The wife's application in a proceeding filed 15 May 2024, other than the question of costs, was dismissed on 10 July 2024 (Order 7). Also on 10 July 2024, the oral application by the husband for judicial recusal on the basis of actual and apprehended bias was dismissed. (Order 1).
At hearing, the husband nevertheless pressed the orders sought in his Response to this application as was his right pursuant to r 5.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). To the extent that the Response has not already been dealt with in the course of this matter, it is unequivocally dealt with as follows.
Item 1 for the husband to have the assistance in court from a lay friend was permitted but that person was not permitted to address the Court.
Item 2 seeking the wife's disclosure of various documents which post-date the final orders, including her bank accounts for 12 months, are not consequential to any extant orders.
Item 3 seeking mediation between the husband and the party's two daughters has nothing to do with property.
Item 4 and 5, were taken to be an objection to the jurisdiction of the court (pursuant to r 2.19) which was affirmed as such by the husband at hearing. This was determined at the outset pursuant to r 2.19(2). The grounds for the husband's contention were that "there is no bilateral treaty arrangements with regard to the reciprocal recognition of foreign judgement and Australia is not a Contracting State to the Brussels Convention and the Hague Convention …" Whether or not any of that is true does not oust the jurisdiction of the Court for the purposes of the wife's May 2024 application.
Items 6 and 7 for the wife to be prevented by injunction from "engaging in any further action or communication or activity relating to or touching upon the sale, …" are not consequential to any extant orders. Rather, they are in contrast to and would completely frustrate the extant orders.
Accordingly, the husband's Response of 23 May 2024 is dismissed.
The question of costs on this application is dealt with in the 'Costs' section of these reasons below.
The husband’s Application in a Proceeding of 29 October 2024
Item 1 for Judge Hughes to recuse herself fell away as the application is not before Judge Hughes.
Items 2, 3 and 5 pray for a discharge of the order restraining the husband from leaving Australia, removing his name from the AFP Airport Watchlist and compensating him for the loss these orders have caused. The husband did not appeal the primary orders. The evidence in support of the ancillary order restraining the husband from leaving Australia has only strengthened the order since it was made. Such evidence includes:
(a)The findings at paragraphs 73-76 in the Reasons for Judgment in the contempt proceedings (set out above);
(b)Each of the husband's Applications in a Proceeding seek orders to the effect of compelling the wife to produce to the husband documents in aid of his pursuit to somehow defeat the extant orders; and
(c)That within the Minute of Orders he seeks as at the hearing on 21 January 2025, he seeks an order that the wife transfer to him all of her interest in the property.
Item 4 that he be "cleared of any suggestion that I am in contempt of Court" is already comprehensively dealt with in the Reasons for Judgment in the contempt proceedings.
Item 6 may be the closest the husband has come at any stage of the proceedings to seeking an order to have the final orders set aside. However, the sole basis he makes his prayer on is "That this Property Settlement has now been migrated to [Region D] Court in Ireland that the court here in Australia be set aside" [sic] - which is not the case.
Item 7 for "a full audit of all the written and audio transcripts … and video recordings that were made in the court be examined …" is not consequential to any extant orders. There is no other cause of action to which it may relate.
Accordingly, the husband's Application in a Proceeding of 29 October 2024 is dismissed.
The order for costs sought by the wife in her Response dealt with in the 'Costs' section of these reasons below.
The husband’s Application in a Proceeding of 22 November 2024
The sole order sought by the husband is "That the Deed of Agreement and Release from the court hearing 23 and 24 September 2021 … be signed … and sent to [the Court] to be stamped or sealed."
Such an order is not consequential to any extant orders. There is no other cause of action to which it may relate. Accordingly, the husband's Application in a Proceeding of 22 November 2024 is dismissed.
It is noted that the wife's evidence is that there is no issue with the Deed and that it has been signed and provided to the husband. However, it is not relevant to these proceedings and the wife seeks her costs for having to deal with the husband's misconceived application.
What is also noteworthy is the striking contradiction in the husband's position where:
(a)The husband seeks relief from this Court in order for him to rely on and enforce the Deed; and
(b)Recital D in the Deed states "On 24 September 2021, [Ms Archer] and [Mr Starling] entered in [sic] final Children and Property Orders in the Federal Circuit Court of Australia. Annexed hereto and marked "A" is a copy of those orders;" but
(c)The husband nevertheless seeks to deny the wife that to which she is entitled to under the final orders.
The husband’s Application in a Proceeding of 10 January 2025
The sole order sought by the husband is “That a copy of the original letter in digital format … in February or March 2018 [which was] the very first letter that I had received from [the wife’s solicitors] and was hand delivered to me by the [the wife].”
The order sought by the husband doesn’t actually include what is to happen with respect to the subject letter which was delivered to him. At the hearing the husband clarified that he was seeking for a copy of it to be produced to him now.
Such an order is not consequential to any extant orders. There is no other cause of action to which it may relate. Accordingly, the husband’s Application in a Proceeding of 10 January 2025 is dismissed.
The husband’s Application in a Proceeding of 21 January 2025
The sole order sought by the husband is “That [the wife] produce the original letter dated September 25th 2019 that was sent to myself from [the wife’s solicitors] … .
Such an order is not consequential to any extant orders. There is no other cause of action to which it may relate. Accordingly, the husband’s Application in a Proceeding of 21 January 2025 is dismissed.
The husband’s minute of orders sought filed 21 January 2025
Outside of the applications filed by the husband, on 21 January 2025 the husband also filed a consolidated minute of orders sought which was responsive to the directions made on 13 January 2025. At items 1-5 therein, the husband seeks orders that amount to a completely different effect to what the final orders of 18 September 2024 provide for. The husband wants to retain the property for his exclusive use. Such orders are not consequential to any extant orders and there is no other cause of action to which they relate.
Items 6-11 are as sought in the other applications and have been dealt with above.
The wife’s minute of orders sought of 23 January 2025
Responsive to the directions made on 13 January 2025, on 21 January 2025 the wife filed a consolidated minute of orders sought which was superseded by another minute produced on 23 January 2025.
Item 1 seeks a costs order in her favour on an indemnity basis under the application of 15 May 2024. Consistent with each of her Responses, Item 2-5 seek costs of and incidental to each of the applications on an indemnity basis. These are dealt with in the ‘Costs’ section of these reasons below.
Item 6 seeks an order that the husband pay the wife’s costs of and incidental to the Irish Court proceedings on an indemnity basis. This is dealt with in the ‘Costs’ section of these reasons below.
Items 7 and 8 seek orders restraining the husband by injunction from having any dealings with the property or causing anyone else to do so have already been made at Orders 3 and 4 on 10 July 2024 and are extant.
Item 9 seeks an order restraining the husband from filing any further Application in a Proceeding without leave of the Court. This is dealt with in the ‘Harmful proceedings order’ section of these reasons below.
Item 10 seeks an order that from the husband’s share of the proceeds of sale, he pay to the wife a specified sum being 50 per cent of the rent collected and retained by the husband from the property. This is dealt with in the ‘Disgorgement of rental income’ section of these reasons below.
Items 11 and 12 seek orders for application of the proceeds of sale to take into account the amounts sought by the wife from the husband which include fresh claims for reimbursement of expenses incurred by the wife.
DISGORGEMENT OF RENTAL INCOME
At paragraph 7 of her 21 January 2025 affidavit and at paragraphs 114-126 of her 10 May 2024 affidavit, the wife gives evidence to the effect that:
(a)Prior to August 2023, the husband received all of the rent;
(b)Between August 2023 and January 2024, the wife received rent totalling $7,591.61;
(c)In November 2023, the husband obtained an order from the Rental Tenancies Board in Ireland that the tenants were in arrears $8,566 and were required to exit the property by April 2024. Despite the wife giving evidence that the tenants had paid the rent to her, the Board took the view that they could only recognise the husband as the person to whom the rent was payable because he held sole title;
(d)In January 2024, the wife transferred $8,566 back to the tenants and she understands that the tenants then paid that sum to the husband and then paid rent to the husband until they moved out in April 2024;
(e)The husband has therefore had and received all of the rent paid by the tenants from April 2023 to April 2024 at €900 per month for 12 months being €10,800 or $17,544 AUD when converted at the date of swearing the affidavit.
The wife therefore seeks 50 per cent of those funds being $8,772.
By his affidavit of 26 May 2024, at paragraph 12 the husband gives evidence that:
A Deed of Agreement and Release and Executed as a Deed was signed … on 24 September 2024. This Deed was to prevent either party claiming any financial monies in the future (the property being a separate concern). Once this Deed of Release is executed, it is legally binding and generally cannot be revoked or altered unilaterally. [Ms Archer]’s demand to get 50% of the rent from now on cannot be allowed because of this Deed. Attached is a copy of the original document which I signed and sent to the parties mentioned below. … Annexure hereto and marked “[MRS] 03.”
Firstly, I make the same observation as above about the husband’s contradictory position that the Deed ought to be available to support him but at the same time the parts which operate against him ought to be ignored. I have not been referred to any authority whereby a court has upheld the notion that a general Deed can be used by a party in breach of court orders to specifically indemnify themselves as to the benefit they receive as a result of the breach at the direct expense of the non-defaulting party. I do find or uphold that notion in this case.
Secondly, if it was necessary to refer to the Deed to resolve the dispute, the Deed does not provide for what the husband contends. Clause 4 is entitled “Release”, and the effect of the terms are that the parties agree to release each other from any claim in relation to the Relevant Matters. “Relevant Matters” is a term defined in the Deed to mean “any matters in respect of, relating to, or arising in whole or in part of, either directly or indirectly out of or in connection with, the matters set out in item [1] of the Schedule …” However, there is no Schedule to the Deed that is Annexed to the husband’s affidavit at MRS 03. The other Recitals only specifically refer to a loan or gift for the purchase of a motor vehicle. There is no plausible or rational interpretation that could mean “Relevant Matters” includes the final orders.
The husband gives further evidence at paragraphs 14-21 of his affidavit of 26 May 2024 to the effect that:
(a)There was no lump sum payment of rent by the tenant to him but they are repaying the rent arrears each month to him until paid in full.
(b)From the beginning of the tenancy all rent monies have been paid into his personal account as he is the sole landlord.
(c)The wife is not entitled to any portion of rent received because she is not the landlord.
(d)The mortgage ended in April 2023 and he stood to make €900 each month thereafter.
The husband’s evidence actually accords with the wife’s evidence that the husband has received and retained all of the benefit of the rent at €900 per month. Where he departs is that he believes that he is entitled to do so.
Pursuant to the final orders, the parties have held an equal, equitable interest in the property since 24 September 2024 and it should have been sold relatively soon thereafter. I have found that the husband has contravened the final orders by failing to take necessary steps to sell it and by obstructing the wife’s attempts to do so. I have found that the husband intended to frustrate the effect of the orders and deny the wife that to which she is entitled to since at least October 2021.
To permit the husband to profit at the wife’s expense because of and during his ongoing contravention, firstly is unjust. Secondly, it is contrary to the final orders and erodes the just and equitable grounds on which they were made.
In these circumstances, I find that the order sought by the wife for payment of $8,772 to her by the husband is consequential to the final orders and I make that order pursuant to s 80(1)(a) of the Act.
REIMBURSEMENT OF EXPENSES
C Law Firm
At paragraph 7 of her 21 January 2025 affidavit and at paragraph 138 of her 10 May 2024 affidavit, the wife deposed that:
In relation to giving effect to the sale of the [Property B] Property, as deposed above, I have retained two Irish legal firms, namely [C Law Firm] and later [E Law Firm]. Accordingly, I have incurred or have been given cost estimates as follows:
(a) AUD $2,952 to [C Law Firm] paid 7 February 2023;
(b) AUD $1,739 to [C Law Firm] paid 22 February 2023;
The husband adduced no evidence with respect to this issue.
The legal fees paid by the wife in furtherance of selling the property were wasted by the husband’s frustration of the sale.
To permit the wife to bear the costs thrown away because of the husband’s contravention of the final orders, firstly is unjust. Secondly, it is contrary to the final orders and erodes the just and equitable grounds on which they were made.
In these circumstances, I find that the order sought by the wife for payment of $4,691 being the expenses incurred by her to C Law Firm is consequential to the final orders and I make that order pursuant to s 80(1)(a) of the Act.
Other Expenses
At items 12(b)(i)(III) of the consolidated minute, the wife seeks an order for payment to her by the husband of $4,851 comprising of expenses relating to the property.
At paragraph 118 of her 10 May 2024 affidavit, the wife deposed to paying a list of expenses that total $5,364.17.
The husband adduced no evidence with respect to this issue.
I accept that they were expenses related to the property that had to be paid by the wife as result of the property not being sold contrary to the final orders. They are also expenses that had to be paid in order for the parties to receive the benefit of the rental income. The liability of those expenses ought to be shared equally.
In these circumstances, I find that an order for payment to the wife by the husband of one half of $5,364.17, being $2,682.08 is consequential to the final orders and I make that order pursuant to s 80(1)(a) of the Act.
HARMFUL PROCEEDINGS ORDER
At item 9 of the wife’s minute of orders sought of 23 January 2025, she seeks an order pursuant to s 114 of the Act restraining the husband from filing any further Application in a Proceeding without leave of the Court.
Firstly, in light of all of the findings in these reasons along with all of the circumstances of these proceedings since the making of the final orders, I consider that an injunction in the terms sought by the wife is proper. My view is that alone is sufficient cause and grounds to make the order.
At hearing, counsel for the wife affirmed that such an order could also be made under Pt XIB of the Act (noting that the provisions of Pt XIB do not limit or otherwise affect any other power that the court has to deal with proceedings – s 102QA).
Where there are explicit provisions in the Act which deal with harm that is caused to a party by the other party’s institution of proceedings, it is preferable to use those provisions rather than the general power under s 114 of the Act.
The wife gives evidence at paragraphs 16-18 of her 21 January 2025 affidavit that her estimated costs since the costs order in her favour of $38,742 was made in December 2022 until January 2025, including the Irish court proceedings, are estimated at $202,792 to $242,792. That is close to half of all of the equity in the property based on the final orders which puts the total equity in the property in the order of $500,000.
When having regard to all of the wife’s affidavits, there is an inference available that the husband’s frequent institution of proceedings together with the husband’s continued obstruction of the wife’s efforts to sell the property in order to obtain that to which she is entitled to, is psychologically harmful to the wife.
The wife gives evidence at paragraph 7 of her 21 January 2025 affidavit and at paragraph 140 of her 10 May 2024 affidavit that:
Following the Orders of 16 December 2022, the issues I have experienced with [Mr Starling’s] refusal to comply with the Orders have caused me considerable stress, taken an inordinate amount of time and financial resources in trying to resolve the matter to no avail, and taken a significant toll on my mental health and wellbeing to the extent that the children and I are unable to move forward with our lives in a positive and meaningful way.
…
It has been four years since I first commenced proceedings in the Federal Circuit Court and Family Court of Australia, and I desperately want this matter to resolve.
I have had regard to the maters in s 102QAC(3) of the Act. The husband was given the opportunity to be heard at the hearing on 23 January 2025. I am satisfied that there are reasonable grounds to believe that the wife would suffer financial and psychological harm if the husband instituted further proceedings against the wife. Accordingly, an order is made pursuant to s 102QAC(1) of the Act.
COSTS
The question of costs under the wife’s application of 15 May 2024 remains open. By each of her Responses, the wife seeks costs of and incidental to each of the husband’s applications on an indemnity basis.
The wife gives evidence at paragraph 19 of her 21 January 2025 affidavit that:
It is my preference, and I move the court to make an order that either the issue of costs be deferred until such time as there is a final resolution to all outstanding matter including the Irish proceedings on the basis that at that time it will be clear as to the precise costs and disbursements payable.
I am reticent to proceed as preferred by the wife. There are already different components to the proceedings that require different considerations as to costs. What can be done now should be done now. Further, the reality of the costs implications for the husband in maintaining his misconceived position should be made clear to him so that he can take that into account going forward.
The different components to the proceedings that require different considerations as to costs are:
(1)The costs of the proceedings up to the order already made on 16 December 2022.
(2)The costs incurred between 18 September 2024 when the order was made on the court's own motion listing the charge of contempt for hearing along with trial directions, and 5 November 2024 when it was heard. Noting that may not operate as a carve out of all costs incurred in that time period because other work may have been done. For example, in the middle of that period the husband filed an application on 29 October 2024.
(3)The cost of and incidental to the wife's application of 15 May 2024 and all of the husband's applications in a proceeding that have been dealt with herein.
(4)Other costs have been deposed to by the wife but not particularised. Primarily with respect to the Irish court proceedings and are ongoing.
Component 1 is not in issue and now effectively bookends the start period.
Component 2 is a kind of circumstance that the parties might expect to be able to obtain some relief under the Federal Proceedings (Costs) Act 1981. However, there does not appear to me to be any provisions in that Act which empower me to issue a costs certificate.
Component 3 is relative to the substance of this judgment and a decision as to liability ought to be made now. For reasons that follow, it would be unjust at this stage to make an order as to quantum.
Component 4 is not before the Court.
Principles and findings
Pursuant to section 117 of the Family Law Act 1975, each party is to bear their own costs of proceedings under the Act. Nevertheless, the Court may make such order as to costs as it considers just if there are circumstances that justify doing so, having regard to the matters prescribed by subsection 117(2A) of the Act.
With respect to the portion of the proceedings falling within component 3 above, I find as follows.
With respect to the financial circumstances of each of the parties, pursuant to the final orders the parties have an equal, equitable interest in the property which has total equity in the vicinity of $500,000. The husband’s interests are being eroded by the adverse orders being made against him which are mounting up. Nevertheless, the husband’s financial circumstances do not preclude a costs order. Even still, unmeritorious litigation is no less unmeritorious because it is pursued by a self-represented person who claims impecuniosity (Northern Territory v Sangare (2019) 265 CLR 164 at [27]).
With respect to the conduct of the parties, damning findings were made against the husband on 22 November 2024 about his conduct since at least October 2021 (See paragraph 11 above). He has been on notice of these findings since 22 November 2024. Nevertheless, three of his five applications post-date 22 November 2024. His minute of orders sought on 21 January 2025 makes clear that he pursues an outcome completely different to what the final orders of 18 September 2024 provide for. The only available inference being that he has no intention of complying with the final orders or the ancillary orders which provide to the wife that which she is entitled to.
The wife’s application of 15 May 2024 was absolutely necessitated by the failure of the husband to comply with previous orders of the court. With respect to all of the husband’s applications, none of them are responsive to anything the wife has done in her efforts to give effect to the final orders and the subsequent ancillary orders. Rather, they are in furtherance of his misconceived efforts pursuing an outcome from which there is no cause of action.
The husband has been wholly unsuccessful in every aspect of the portion of the proceedings that fall within component 3 above.
With respect to the portion of the proceedings that fall within component 3 above, I am satisfied that the circumstances justify a costs order in favour of the wife.
Pursuant to r 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, I am satisfied that it was reasonable for the wife to engage counsel.
Quantum
The authorities are longstanding and clear that an order for indemnity costs involves a very significant departure from the ordinary course and should only be made in exceptional circumstances. In the circumstances described above, there is a strong argument that the husband should pay the wife’s costs of this application on more than a party and party basis.
There are however impediments in proceeding to make a determination as to the amount or basis for assessment of any costs orders in favour of the wife which are:
(a)It is not possible to derive from the wife's evidence the portion of her costs incurred that are attributable to the proceedings that fall within component 3 above. Further and importantly, it is not possible to derive from the wife's evidence the costs that she actually paid or is exposed to that fall within component 3 above.
(b)The requirement in rule 12.13(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 for a party applying for an order for costs on an indemnity basis to inform the court as to the terms of any costs agreement has not been met. It is expressed as a mandatory requirement - unless dispensed with pursuant to rule 1.31.
(c)There is no itemisation or bill of costs nor estimate as to the wife's party and party costs.
(d)In Kohan & Kohan (1993) FLC 92-340, the Full Court said that "the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges". That is, the scale fees are the reference rate for assessing the reasonableness of costs, not whatever may be the fees charged by a particular practitioner. (Roydon & Roydon [2024] FedCFamC1A 105 [at 112]). This principle is reinforced by the requirements of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 at:
(i)Rule 12.17(3)(c) and (f) where in making a costs order the court may consider the rates ordinarily payable to lawyers in comparable proceedings and whether expenses are fair, reasonable and proportionate; and
(ii)Rule 12.47(2) that when assessing costs ordered on "an indemnity basis" regard is had to the scale of costs set out in Schedule 3 to the rules.
To proceed otherwise at this stage could well encroach upon the principle that costs orders are never punitive and are only ever compensatory (Latoudis v Casey (1990) 170 CLR 534 at 543, 563 and 566–567).
Therefore, the order must be that the wife has liberty to bring a further application with respect to the quantum of costs pertaining to component 3 of the proceedings. Whether or not the wife brings a fresh application with respect to component 4 of the proceedings is a matter for her hereafter.
In my view, if properly advised, the husband would not have brought his applications and nor would he be continuing to resist the effect of the final and ancillary orders here or in the proceedings in Ireland. On all of the evidence and submissions that he has brought so far, his applications and his position have no reasonable prospects of success. I reiterate what I said in the Reasons for Judgment in the contempt proceedings:
[57] I refer to and adopt the summary of the law provided by Riethmuller J in Thomson Reuter’s Family Law about making Orders in respect of property located in other jurisdictions [citations omitted]:
Proceedings under s 79/90SM are in personam, and not in rem. In other words, proceedings under this section are always by one person against another person, and not by a person directly against property. By virtue of both this fact and the wide terms of s 79/90SM(1), the court can make an order under this subsection in respect of property wherever it may be located, whether in or outside Australia. The court is able to make an order in respect of property located abroad by making an order that a party to a marriage deal with it in a particular way.
(emphasis added)
In the plainest and strongest of possible terms, the husband is encouraged to consider his position or to at least obtain some help or advice where:
(a)There are now extant orders that the husband pay to the wife from his portion of the net proceeds of sale $38,742.00 and $8,772.00 and $4,691.00 and $2,682.08 totalling $54,887.08.
(b)The husband has been found liable to pay the wife's costs with respect to five Applications in a Proceeding at an amount yet to be determined. For information purposes only, items 1, 13 and 14 of Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 total $4,396.19 per application. Times five equals $21,980.95.
(c)The husband is exposed to a further application for costs where the wife has deposed that her estimated costs since the costs order made in December 2022 until January 2025, including the Irish court proceedings, are estimated at $202,792 to $242,792.
(d)Even if the husband is somehow wholly victorious in the proceedings in Ireland, that does not have the effect of defeating the final and ancillary orders made in this court and depriving the wife that to which she is entitled to.
(e)The husband has already been found to have contravened orders of this court and that his conduct or omissions amount to a flagrant challenge to the authority of the court. The husband has survived a charge of contempt as a matter of form, not substance. He ought to be under no disillusion that he is indemnified against another charge of contempt.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 7 March 2025
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