Barkley & Gammon

[2021] FCCA 1444

FEDERAL CIRCUIT COURT OF AUSTRALIA

Barkley & Gammon [2021] FCCA 1444

File number(s):	ADC 3993 of 2019
Judgment of:	JUDGE BROWN
Date of judgment:	29 June 2021
Catchwords:	FAMILY LAW – property – property settlement – final hearing – undefended hearing – de facto relationship – relationship of approximately 16 years – where respondent has not engaged with proceedings – application for costs order
Legislation:	Federal Circuit Court Act 1999 (Cth) ss 3, 26, 106A Federal Circuit Court Rules 2001 (Cth) rr 7, 13.03A, 13.03B, 21.02, 21.10, 21.16 Family Law Act 1975 (Cth) Pt VIII, ss 44, 90SF, 90SM, 90ST, 117
Cases cited:	Clauson v Clauson (1995) 18 Fam LR 693 Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 In the Marriage of Bitloft (1995) 19 Fam LR 82 In the Marriage of Ferraro (1992) 16 Fam LR 1 In the Marriage of Hickey (2003) 30 Fam LR 355 In the Marriage of Kohan (1992) 16 Fam LR 245 In the Marriage of Waters & Jurek (1995) 20 Fam LR 190 Robb & Robb (1995) 18 Fam LR 489 Russell v Russell (1999) FamCA 187 Stanford & Stanford (2012) 247 CLR 108 Taylor v Taylor (1979) 143 CLR 1
Number of paragraphs:	190
Date of last submission/s:	9 June 2021
Date of hearing:	9 June 2021
Place:	Adelaide
Solicitor for the Applicant:	Westley Di Giorgio Norcock
Counsel for the Applicant:	Mr Boehm
Counsel for the Respondent:	The Respondent in person

ORDERS

ADC 3993 of 2019

BETWEEN:

MR BARKLEY

Applicant

AND:

MS GAMMON

Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	29 JUNE 2021

THE COURT ORDERS THAT:

In full and final settlement of all applications for the settlement of de facto property:

1.That within twenty eight (28) days of the date of this order that the Respondent do all things necessary and execute all documents required to transfer her entire interest in the property known as and situate at B Street, Town C, SA (the “former family home” or the “B Street, Town C” property) and being the whole of the land comprised in Certificates of Title Volume … Folios … and … to the Applicant at the Applicant’s expense.

2.That contemporaneously with the production of the transfer of the former family home referred to in order (1) above, the Applicant pay the Respondent the sum of ONE HUNDRED AND TWENTY NINE THOUSAND SIX HUNDRED AND TWENTY TWO DOLLARS AND NINETY THREE CENTS ($129,622.93).

3.Concurrently with the production of the transfer required to give effect to order (1) hereof to transfer the former family home from the Respondent to the Applicant, the Applicant discharge any mortgage or charge secured against the property.

4.Upon the transfer of the former family home from the Respondent to the Applicant the Applicant will keep the Respondent indemnified in respect of all mortgages and any other outgoings and liabilities in respect of the former family home.

5.That pursuant to section 106A of the Family Law Act 1975 (Cth) that in the event that either party refuses or neglects to comply with the provisions of these orders, the Registrar of the Federal Circuit Court of Australia at Adelaide is hereby appointed to execute all deeds and documents in the name of the defaulting party.

6.Including but without limiting the effect hereof, the Applicant shall retain for his sole use and benefit absolutely free from any further claim or demand of the Respondent:

(a)the furniture and furnishings in his possession, power and control;

(b)any motor vehicle in his possession;

(c)all bank accounts, savings, shares and investments in his name;

(d)any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in his name;

(e)his personal effects; and

(f)any other real and/or personal property and/or financial resources of the Applicant or in the Applicant’s name and/or possession not otherwise specified herein.

7.Including but without limiting the effect hereof, the Respondent shall retain for her sole use and benefit absolutely free from any further claim or demand of the Applicant:

(a)the furniture and furnishings in her possession, power and control;

(b)any motor vehicle in her possession;

(c)all bank accounts, savings, shares and investments in her name;

(d)any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in her name;

(e)her personal effects; and

(f)any other real and/or personal property and/or financial resources of the Respondent or in the Respondent’s name and/or possession not otherwise specified herein.

8.The Applicant is ordered to indemnify the Respondent with respect to the liability of the Respondent either personally or jointly with the Applicant in respect of the debt totalling TEN THOUSAND DOLLARS ($10,000.00) asserted to be owed to the Applicant’s parents. 

9.The Respondent is ordered to indemnify the Applicant with respect to the liability of the Applicant either personally or jointly with the Respondent in respect of the debt totalling TWELVE THOUSAND DOLLARS ($12,000.00) asserted to be owed to the Respondent’s mother. 

10.That the Respondent pay the Applicant a lump sum of costs fixed at ELEVEN THOUSAND AND SEVEN DOLLARS AND TWENTY FIVE CENTS ($11,007.25) to be paid out of the Respondent’s final settlement sum.

11.All outstanding applications are otherwise dismissed and the proceedings are finalised.

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 under the pseudonym Barkley & Gammon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BROWN:

INTRODUCTION

1. This is a sad and dispiriting case, which relates to the final settlement of de facto property issues, following a relationship of approximately 16 years, which produced two children.

2. Amongst other reasons, it is a sad case, because the relevant pool of property is modest and the prospective needs of the parties involved are likely to be significant indeed.

3. It is a dispiriting case because it is one which really should have been resolved through a process of negotiation and compromise. As such, it was a case crying out for the cooperative assistance of experienced legal practitioners.

4. However, one of the parties has not been properly engaged in the case and has never had legal advice. As a consequence, she has provided no formal evidence whatsoever, to the Court, despite being given ample opportunity to do so.

5. In these circumstances, the spouse agitating for the resolution of property issues and the end of the financial relationship with the other spouse concerned has been put to significant legal expense, which is disproportionate to the issues, which the case throws up.

6. The other party complains that she cannot fund her involvement in the case, through the retention of legal representation and has not been able to obtain legal aid, for herself, notwithstanding the fact that she is in receipt of social security and has no access to any accumulated funds.

7. The chief difficulty arising in the case is obvious. There is limited evidence from one of the parties, as to what occurred, in financial and parenting terms, during the parties’ significant relationship. This makes it extremely difficult to gauge what her contributions have been and what her future needs will be and particularly, what overall is a fair outcome for the case.

8. As such, the case throws up a dilemma. On the one hand, it would be unfair to the party, who is agitating for the case to be finalised and who has demonstrated a pressing need for settlement, if the case is unduly prolonged or postponed indefinitely, in the nebulous and possibly forlorn hope that the other party would engage in the adjudication process in future, after having already been given such an opportunity.

9. On the other hand, it is invariably disturbing, when the Court is called upon to make orders in respect of issues of great significance to the parties concerned, in the absence of a proper articulated case from one of them. For obvious reasons, such an outcome has the potential to be criticised later for having the appearance of unfairness.

10. It is a trite proposition, but not without a level of truth, that that there are always two sides to every story, and a counter argument available to every proposition, both in fact in law, put forward in any Court case.

11. For axiomatic reasons, the Court must be careful about finalising property proceedings, in the absence of a response from one of the parties concerned. However, from time to time, it is necessary to do so, most often when one party simply refuses to engage or is unable to do so because his or her life is in a state of disarray.

    BACKGROUND

12. Mr Barkley (“the Applicant”) and Ms Gammon (“the Respondent”) commenced a relationship in or around 2001, and are the parents of X born in 2006 and Y born in 2007. The Respondent has a child from an earlier relationship. He is Mr D born in 2000.

13. The Applicant was born in 1970. He has lived in Town C, in the south east of South Australia, for most of his life. He was educated up until Year 11 and has trade skills as a tradesman. He has also worked as a labourer for a professional farmer.

14. More recently, he has obtained a trades licence and is currently a self-employed tradesman, operating a business known as Company E. He estimates that he derives an annual income of approximately $67,000.00 from his business.

15. The Respondent was born in 1974, in City F. She too lived in the Town C area for many years. As I understand, she worked at the Town C supermarket, after leaving school and later at a business in the town.

16. The Respondent was first married, in 1991, to Mr G. However, he died in an accident in 1998. At the time of his death, he owned a house and land, located at B Street, Town C.   Mr G and the Respondent did not have any children. Mr G died intestate and, as a consequence, the B Street, Town C property was transferred to the Respondent.

17. The Applicant believes that Mr G purchased the property for approximately $33,500.00 in 1993. At the time of its transfer to the Respondent, the property was unencumbered. For reasons which will be elaborated upon in due course, this property (hereinafter referred to as the “former family home” or “the B Street, Town C” property) is at the centre of the current controversy between the parties.

18. The Applicant continues to live in the B Street, Town C property, with the children, X and Y. It is his case that he has made significant and various contributions to its improvement and preservation over the years. He wishes to have the whole of the property transferred to him so that he has the security and legal ownership of his and the children’s home.

19. He concedes that this outcome will necessitate the payment by him of a sum of money to the Respondent. However, it is his case that it has been difficult for him to engage with the Respondent in this regard. Essentially because she left Town C some years ago now, leaving the children, along with Mr D, whom he considers as his own child, in his sole care.

20. The B Street, Town C property was subdivided, by the parties, in 2010. This subdivision created two Certificates of Title over the B Street, Town C property, one of which contained the parties’ former family home and the other comprises a block of vacant development land. Mr Barkley has obtained a valuation of each of the properties concerned. The former family home has been valued at $300,000.00; whilst the vacant land is valued at $110,000.00.

21. A mortgage was secured against the property in 2003 in favour of H Finance. At the present time, the amount owing on the mortgage is approximately $24,800.00. There is some controversy as to which party has paid the recurrent mortgage payments in the period following separation. What is not controversial is that Ms Gammon has not provided any financial assistance for the support of X, Y and indeed Mr D to Mr Barkley.

22. The parties finally separated in what appears to be difficult and traumatic circumstances in September 2017. It is the Applicant’s case that, in the two years prior to separation, the Respondent was abusing alcohol and illicit drugs to a significant degree, which caused her to behave in an increasingly irrational and unpredictable manner.

23. In these circumstances, he alleges that in September 2017, Ms Gammon went to Adelaide ostensibly on a shopping expedition but failed to return. In the period since, she has never returned to Town C and has had no direct physical contact with any of the children concerned.

24. As a consequence, it is Mr Barkley’s case that he had no alternative other than to assume sole responsibility for the care of not only X and Y, but also Mr D. It is also his case that he had been living at the B Street, Town C property with Ms Gammon, since July 2007.

25. It is his case that prior to moving into the former family home he sold his own property in Town C and the parties used the proceeds of sale to fund an extended trip around Australia and also their living expenses. In addition, he asserts that he significantly improved the property by building a number of improvements, which he was able to do as a consequence of his skills as a tradesman.

26. It would appear to be the case that the former family home has significantly increased in value since it was purchased, by the late Mr G, in 1993. In addition, the parties were fortunate that the mortgage secured against the property appears to have been modest when compared to the overall value of the property concerned.

27. Apart from the former family home, this case is not concerned with assets of significant value. Mr Barkley has identified two motor vehicles, which are valued at approximately $26,000.00; household contents of approximately $10,000.00; an investment in cryptocurrency in an amount of approximately $20,000.00. He estimates the value of Company E at just under $13,000.00.

28. The parties have a total amount of superannuation valued at approximately $70,000.00. He has recently withdrawn $20,000.00, from his superannuation account, as authorised by the Government in response to the pandemic emergency.  It is Mr Barkley’s position that the parties also owe relatives an amount of around $22,000.00.

29. In all these circumstances, in rough terms, Mr Barkley estimates the parties’ pool of assets and superannuation to amount to just over $500,000.00. He asserts that the parties’ contributions, in various forms, to the accumulation of this sum, should be assessed as being approximately equal. However, chiefly by reason of his ongoing financial responsibility for X and Y, he asserts that a further adjustment of 30% should be made in his favour to account for his prospective needs.

30. As will become evident, in due course, this case has had a tortuous course towards its final disposal. It is Mr Barkley’s case that he has expended a sum of around $23,700.14 in legal fees in preparing the case for final hearing. It is his position that Ms Gammon should be held liable for this sum.

31. Ms Gammon has never formally indicated what her position is in respect of the division of the parties’ assets. However, in recent oral submissions made by her, to the Court, she has indicated that she does not accept the valuation of the B Street, Town C property and believes that it would be inherently unfair, to her, for there to be anything other than an equal division of property, given the fact that she brought the former family home into the parties’ relationship, at its outset.

32. Ms Gammon is also stridently opposed to there being any adjustment, in Mr Barkley’s favour, as a consequence of his care of the parties’ children, as it is her position that Mr Barkley has alienated them from her. Underpinning her position to the Court is her assertion that it is fundamentally unjust for the Court to proceed with Mr Barkley’s Application without her being legally represented.

    PROCEDURAL HISTORY

33. The Applicant commenced these proceedings on 17 September 2019. Given his residence in Town C, he sought their listing in the Court’s circuit to Mount Gambier where it was listed on 18 November 2019.

34. In an Affidavit filed in support of his Application, at this stage, Mr Barkley deposed that neither he nor the children had had any contact, with Ms Gammon, for a period of around 6 months, following the parties’ separation. As a consequence, he and Ms Gammon’s mother had made a missing person’s report to the police, in respect of Ms Gammon.

35. Later, they were informed that Ms Gammon was alive and living in Melbourne. In August 2018, Mr Barkley deposed that he had received a telephone call from Ms Gammon, in which she advised him that she had been recently released from prison in Town J, Victoria and required money to repair her motor vehicle. At the time of the first directions hearing coming before the Court, it was Mr Barkley’s position that he did not know the exact whereabouts of Ms Gammon.

36. In these circumstances, on 18 November 2019, the Court adjourned the further hearing of the matter to 21 February 2020, again in Mount Gambier. On this latter date, I further adjourned the proceedings to allow the Applicant’s solicitor, Mr Norcock, to make an Application for substituted service.

37. Ultimately, on 4 June 2020, an Application was made that in lieu of personal service of the Application on the Respondent, she be deemed to have been served, by electronic means, to her email address. This Application was made pursuant to the provisions of rule 7 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).

38. Ordinarily, the Rules provide that service by hand is required for any Application starting a proceedings.[1] However, the Court has a general discretion in respect of service,[2] and may make an order to provide a form of service in substitution of personal service or dispense with service entirely.[3]

    [1] Federal Circuit Court Rules 2001 (Cth) r 6.06.

    [2] Ibid r 6.04.

    [3] Ibid r 6.14.

39. In this context, evidence was provided that neither Mr Barkley nor his solicitor, Mr Norcock were aware, at relevant times, of where Ms Gammon actually lived. However, Mr Norcock deposed that he had been communicating with Ms Gammon, via email, on a number of occasions between September 2019 and February 2020. In this context, an order was sought that the Initiating Application be deemed to have been served via this email address.

40. Rule 6.15 delineates the matters to be taken into account, by the Court, as to whether or not an order for substituted service should be made. The Court is directed to have regard to the following:

    •Whether reasonable steps had been taken to attempt to serve the documents in question;

    •Whether it is likely those steps have brought the relevant proceedings to the attention of the person concerned;

    •Whether it was appropriate to advertise the relevant Application; and

    •The likely costs involved, given the nature of the proceedings in question.[4]

    [4] Ibid r 6.15.

41. Given the circumstances in this particular matter, namely Ms Gammon had left Town C abruptly, without providing any forwarding address, other than her email, and it was apparent that she had access to this source of communication, on 29 August 2020, an order was made for substituted service. At the same time, Ms Gammon was directed to file her responding documents within 28 days of this date.

42. The case was then adjourned to 26 November 2020, when it came before Senior Registrar Heuer. Ms Gammon did not attend Court, either in person or by telephone. In these circumstances, the case was adjourned to 15 February 2020, in Mount Gambier for an undefended hearing.

1. Again, Ms Gammon was provided with copies of the Court’s orders, by electronic means. That she received the documents cannot be doubted because, on 15 February 2021, the date allocated for the undefended hearing, she attended Court, in Mount Gambier, via a telephone link.

2. On this occasion, in the face of strong opposition from counsel for the Applicant, Mr Boehm, Ms Gammon applied to adjourn the proceedings and for leave to take part in them, notwithstanding the earlier order of the Court that they would be deemed undefended.

3. At this stage, Ms Gammon also indicated her view that the matter was capable of a consensual resolution. As a consequence of this indication, the following orders were made:

   1. Within seven (7) days of today’s date, the respondent file and serve a Notice of Address for Service.
   2. The respondent file and serve a Response and Affidavit in support together with a statement of her financial circumstances within 35 days of today’s date.
   3. Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 22 April 2021 at 11:00am.
   5. If the mother fails to comply with the orders for the filing of answering material, the applicant has leave to proceed on an undefended basis.
   6. Mr Barkley’s costs of today’s hearing and the preparation of that hearing are reserved to the adjourned date.
   7. Further consideration of the matter is adjourned to 18 May 2021 at 9:30am for directions NOTING the parties are to dial in on 1800 132 423 followed by 7076931952 #.[5]

   [5] Orders of Judge Brown dated 15 February 2021.

4. Ms Gammon did not file a Notice of Address for Service nor did she file and serve her answering material. She did attend the Conciliation Conference fixed for 22 April 2021 but from the Applicant’s perspective this Conference was fruitless.

5. In these circumstances, the Applicant applied or costs thrown away, arising from the abortive Conference. Registrar De Corso ordered that the Respondent pay costs, in an amount of $1,500.00, which were to be paid from any settlement sums received by the Respondent.

6. Ms Gammon did not take up the opportunity to attend the adjourned Court date, which had been allocated in her presence, on 15 February 2021, including the provision to her of the Court’s conference telephone contact details. In these circumstances, on 18 May 2021, the case was allocated a further undefended hearing, on 9 June 2021, in Ms Gammon’s absence.

7. Again, it is self-apparent that Ms Gammon was aware of the adjourned date because she phoned into the Court hearing on 9 June 2021 and again requested the adjournment of the proceedings and for leave to take part in them. Once again, this application was vigorously opposed by Mr Boehm, counsel for the Applicant.

8. In support of her application, Ms Gammon provided a letter from Dr K, a consultant oncologist, who had been treating Ms Gammon since 2020 in respect of cancer. This condition had been treated with surgery and radio therapy, which had been completed in 2020. Thereafter, she had been prescribed endocrine therapy, in conjunction with monthly check ups.

9. Accordingly, it appears to be the case that Ms Gammon’s treatment had been completed approximately 12 months earlier. However, in this context, Dr K wrote as follows:

   Ms Gammon has experienced significant distress around her cancer diagnosis and the requirement for ongoing anti-cancer therapy which has been compounded by social stressors related to upcoming legal proceedings. She had had the additional complexity of undergoing treatment for cancer during the COVID-19 pandemic which we acknowledge has been highly taxing on all of our patients. I would advocate for her to be shown compassion and have the circumstances around her diagnosis and treatment taken into consideration by the court where possible.[6]

   [6] Letter from Dr K dated 7 May 2021.

10. I acknowledge that it is a difficult and confronting process, for any lay person to appear in Court, particularly when the form of appearance is by electronic means. I also acknowledge the challenges arising from Ms Gammon’s recent serious illness and the obvious fact that she is significantly economically disadvantaged.

11. However, she did not present well in Court. Perhaps understandably, she was angry and frustrated, blaming the system and its refusal to provide her with legal assistance for her predicament.

12. I was, however, able to illicit, from her, some details of her current circumstances, which can be summarised as follows:

    ·The Respondent has not interacted directly with X or Y since she left Town C in late-2017;

    ·The Respondent has not paid Mr Barkley any child support believing that, as he does not pay her rent for the B Street, Town C property, she is providing child support in kind;

    ·The Respondent remains in a relationship with Mr L, which she began, in Town C, in mid-2017;

    ·Mr L is not in good health and has not worked for approximately three to four years, due to mental health issues;

    ·The Respondent and Mr L are in receipt of social security and live in rented accommodation at a weekly rent of $420.00;

    ·Ms Gammon claims to be free of methamphetamines and to be so for the past two to three years;

    ·The Respondent has a Certificate of study and, in the past, has worked at the Town C business;

    ·The Respondent describes her life as difficult.

13. Ms Gammon was unable to indicate to me that she had any prospects of receiving any form of legal assistance in the foreseeable future. Regrettably, I formed the view that it was improbable that she would be able to compile any relevant documents herself. I accept that her life is currently extremely difficult.

    THE NATURE OF AN UNDEFENDED HEARING

14. It is a significant thing for proceedings to be determined in the absence of one of the parties or if that party has not provided a proper level of evidence. The Court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings. 

15. Before a person can be adversely affected by judicial order, he or she ‘must be afforded an adequate opportunity to be heard’.[7]  I am satisfied that Ms Gammon has been given an adequate opportunity to appear in these proceedings and put her position before the Court. 

    [7] Taylor v Taylor (1979) 143 CLR 1, 4 (Gibbs J).

16. In addition Mr Barkley is entitled to have his application, for settlement of property matters, determined within a reasonable period of time, pursuant to the applicable principles of law. 

17. As such, he needs neither Ms Gammon’s formal imprimatur nor her cooperation to have his application determined.  Rather, there is an obligation, on Ms Gammon’s part, if she wishes to be involved in the proceedings, for her to attend at Court as required and pursue any application put by him or on his behalf with due diligence.

18. The Federal Circuit Court is a court of private law.  It determines disputes, between parties, according to law.  In this case, according to the provisions of Part VIII of the Family Law Act 1975 (Cth), which relate to the division of property following the breakdown of a marriage relationship.

19. The Court cannot compel a Respondent to engage with litigation.  It is however obliged to give a Respondent the opportunity to put evidence before the Court and, if he or she wishes to do so, contest any evidence relied upon by the Applicant.

20. However, a Respondent, whether by intransigence, disinterest or manipulation cannot succeed in denying an Applicant a just resolution, according to law, to his or her application, by choosing not to take part in proceedings because they do not proceed in the manner of his or her preference.

21. Division 13.1A of the Rules outlines the Court’s authority to enter judgment against a Respondent if that Respondent defaults in complying with a Court order or fails to prosecute any proceedings with due diligence.

22. Pursuant to rule 13.03A(2) a Respondent is in default if, amongst other things, he or she has failed to:

    •Comply with an order of the court in the proceedings;

    •Produce a document as required; or

    •Defend the proceedings with due diligence.[8]

    [8] Federal Circuit Court Rules 2001 (Cth) r 13.03A(2).

23. I am satisfied that Ms Gammon has not defended the proceedings with due diligence. I am also satisfied that she has been properly notified of the case and has been given an opportunity to file the necessary responding documents. In addition, she was given the opportunity to attend a Conciliation Conference, which regrettably she does not seem to have utilised fully.  

24. In these circumstances, pursuant to the provisions of rule 13.03B(2)(d), Mr Barkley is entitled to judgment in default and it is appropriate that the Court exercise its discretion to enter judgment, for the Applicant, in the proceedings.

25. However, the Applicant is not entitled, as of right, to the orders which he seeks.  Rather, the onus remains on him to establish to the Court that the orders which she seeks, are just and equitable, according to law. 

26. Essentially, Mr Barkley must lead sufficient evidence to establish his case to the Court and persuade it that the result he proposes is a just and equitable one.  Otherwise, the Court should impose the result, in the case, it considers fair according to the law and the evidence available to it.

27. The Court’s pre-eminent responsibility is to ensure a just result between the parties, notwithstanding the failure of Ms Gammon to participate properly in the proceedings.  However, in the absence of satisfactory rebutting evidence, the Applicant’s affidavit material is to be accepted by the Court, unless it appears inherently unreliable or otherwise unsatisfactory.

28. The formal documents on which Mr Barkley relies, is as follows:

    •His Amended Application filed 8 February 2021;

    •His Financial Statement filed 8 February 2021;

    •His Affidavit filed 8 February 2021; and

    •The Affidavit of James Norcock filed 14 May 2021.

    THE LEGAL PRINCIPLES APPLICABLE

29. The process to be followed for the division of the parties’ property is well established by law.[9] The relevant legal principles are primarily contained in sections 90SM and 90SF(3) of the Family Law Act 1975 (Cth).  I am required to follow a number of specific steps.

    [9]  See Stanford & Stanford (2012) 247 CLR 108 (French CJ, Hayne, Heydon, Kiefel & Bell JJ); In the Marriage of Ferraro (1992) 16 Fam LR 1 (Fogarty, Murray and Baker JJ); Clauson v Clauson (1995) 18 Fam LR 693 (; In the Marriage of Hickey (2003) 30 Fam LR 355 (

30. In the first step, I must ascertain what are the parties’ assets and liabilities available to be divided between them.  The general rule is that those assets are to be determined as at the date of trial.[10] 

    [10]  See In the Marriage of Bitloft (1995) 19 Fam LR 82 ().

31. In the second step, I must ascertain the contributions, which each party has made towards the matrimonial pool of assets, as I have found them, following the first step.  Contributions fall into two broad categories. 

32. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the de facto relationship to the acquisition, conservation or improvement of any of the property.  

33. The second kind is contributions to the welfare of the family: in the words of the section, ‘the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent’.[11]  

    [11] Family Law Act 1975 (Cth) s 90SM(4)(c).

34. It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.

35. The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 90SF of the Family Law Act 1975 (Cth). Pursuant to section 90SF(3)(r), the Court is entitled to take into account ‘any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account’. 

36. Finally, in determining what order the Court should make under section 90SM, the Court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the Court must consider.[12]   

    [12]  See Russell v Russell (1999) FamCA 187.

37. Accordingly the fourth step is for the Court to take a step back and examine whether the orders it proposes are just and equitable.  These considerations must also inform each of the preceding steps.[13]

    [13]  In the Marriage of Hickey (2003) 30 Fam LR 355, 370 [39] (Nicholson CJ, Ellis and O’Ryan JJ); Bevan & Bevan [2013] FamCAFC 116 at [60] (Bryant CJ and Thackray J).

38. The ‘overriding requirement’ of section 90SM is that considerations of justice and equity should inform each step of the process. The exercise I must undertake is not a ‘process of social engineering’ or of equalisation of assets or financial resources.[14]

    [14]  See In the Marriage of Waters & Jurek (1995) 20 Fam LR 190, 196 (Fogarty J).

39. It is clear that this orthodox stepped approach remains current, notwithstanding the High Court’s decision in Stanford v Stanford (“Stanford”).[15]  In Stanford the High Court placed significant emphasis on section [the equivalent of section 90SM(3) of the Family Law Act 1975 (Cth) which deals with the division of property of married spouses], which actively prevents the Court from making an order, in respect of property, unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words ‘shall not’ in the relevant section.

    [15]  Stanford & Stanford (2012) 247 CLR 108, 120 [35] (French CJ, Hayne, Kiefel & Bell JJ).

40. In Stanford the High Court warned of the potential danger of a Court conflating its responsibilities arising under section [the equivalent of section 90SM(3) & 90SM(4)] The Court’s fundamental responsibility is to make a just and equitable order.  The High Court said as follows:

    The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.[16]

    [16] Ibid at [35]-[36].

41. In this case, it is abundantly clear that the de facto relationship between the parties has come to an end. In addition, Mr Barkley and the two children of the de facto relationship are living in the B Street, Town C property. For obvious reasons, Mr Barkley wishes this state of affairs to continue and for him to have some legal security in this regard. It would be a financial and logistical disaster for him, if for some unforeseen reason, Ms Gammon was able to evict him from the property, requiring him to find alternative accommodation for himself and the children.

42. It would also appear to be axiomatic that there is no utility in Ms Gammon being responsible for a mortgage, which she is not paying, in respect of a property which she is not occupying.

43. In addition, it would appear that her current financial circumstances are parlous. As such, the capital captured in the former family home is of no direct benefit to her, other than that it provides secure accommodation for her children.

44. In this context, I have some reservations about the prospect of Ms Gammon potentially receiving a large influx of cash into her life, given her present circumstances and her presentation towards the Court. These concerns enhance my view that this is a sad and somewhat dispiriting case.

45. Pursuant to section 90ST of the Family Law Act 1975 (Cth), the Court is placed under an obligation to finalise the financial relationship between the parties to a de facto relationship, as far as is practicable. Mr Barkley, for obvious reasons, is anxious to conclude his financial relationship with Ms Gammon.

46. The relevant legislation places a time limit in respect of the commencement of proceedings to finalise financial arrangements between separated de facto partners. Pursuant to section 44(5) of the Family Law Act 1975 (Cth), any application to settle the property of a de facto relationship must be commenced within a period of two years of the end of such relationship.

47. It is Mr Barkley’s evidence that Ms Gammon left Town C on 27 September 2017, when she travelled to Adelaide, ostensibly on a shopping expedition. She did not inform him, at the time, that she regarded the relationship between the two as over. However, she has never returned to live in Town C.  

48. On one view, it was this date that marked the end of the parties relationship and the point from which any applicable time limit should be calculated.  Quite properly, I my view, he commenced the current proceedings in the light of this date.

49. From Mr Barkley’s perspective, Ms Gammon’s actions came out of the blue. Later, he learnt that Ms Gammon was in a relationship with Mr L. In this context, Mr Barkley deposes as follows:

    The last family member to see Ms Gammon was Mr D. He saw Ms Gammon in Adelaide on 25 October 2017 while he was on a school trip in Adelaide. Mr D reported to me that Ms Gammon had told him that she is in love with Mr L. He reported that Mr L took drugs in front of him.

    Between 2 November 2017 and 21 November 2017, I received various threats and prank calls via phone calls from a “No Called ID”. On some occasions, the person confirmed their identity as Mr L.

    The last real long conversation I had with Ms Gammon was on 2^nd of February 2018. We spoke for about 15 minutes during which time she told me she was moving into a house with Mr L the following week. She did not tell me where she would be living or where she had been since moving from Town C in September 2017.

    On 5 July 2018, after months of not having any contact from Ms Gammon, Ms Gammon’s mother and I were so concerned about her wellbeing and whereabouts that we attended at the Town C Police Station together and lodged a Missing Person Application (Report No …). Around a couple of weeks later, Ms Gammon’s mother received a phone call from the Missing Persons Unit advising they had located Ms Gammon, confirming she was alive and living in Melbourne Victoria.[17]

    [17] See Applicant’s Affidavit filed 8 February 2021 at [50]-[53].

50. The Respondent’s actions placed Mr Barkley in a difficult position. As a consequence, to avoid any issue arising in respect of potential time limitation issues, Mr G was compelled to institute these proceedings in September 2019. Axiomatically, he cannot be criticised for bringing these proceedings.

    THE EVIDENCE

51. Mr Barkley has provided the sole account of the parties’ history with one another. It is coherent and logical in nature and, given the absence of any contradiction to it, I am not in a position to reject it.

52. It is Mr Barkley’s evidence that he has been employed consistently since 1987. In 1997, he purchased a vacant block of land, in Town C, for approximately $18,000.00. On this land, he constructed a house, which he completed in 1998 and which was his home, when he commenced a relationship, with Ms Gammon, in 2001.

53. It is his position that his property, at the time, was of a comparable value to the former family home, which passed to Ms Gammon on the death of her first husband.

54. Ms Gammon and Mr D moved into Mr Barkley’s home, when the parties began to live together in 2001.

55. In 2004, the parties planned to go on an extended working holiday, whilst travelling around Australia with Mr D. As a consequence, both Mr Barkley’s home and the B Street, Town C property were placed on the market for sale. However, only Mr Barkley’s property was sold, netting him the sum of around $146,000.00.

1. It is the Applicant’s uncontracted evidence that this sum was utilised to fund the parties’ living expenses, whilst they travelled around Australia between 2005 and 2007. It was during this period that X and Y were born.

2. The parties returned to Town C in 2007 and moved into the B Street, Town C property together. It is Mr Barkley’s evidence that he significantly improved the former family home by constructing a deck and pergola on the property as well as building an extension to it. He also maintained the property, during the parties’ relationship to a significant degree.

3. The H Finance mortgage, secured against the former family home, was entered into in 2003. At separation, the amount owing on the mortgage was $24,762.87. H Finance issued a notice of default in March 2019. The Applicant has satisfied this default notice and subsequent ones. As at 22 January 2021, the amount owing on the mortgage was $24,800.12. Accordingly, it would seem to be the case that Ms Gammon has made little inroads into the mortgage concerned, which belies her submission that she has paid the recurrent payments in lieu of child support.

4. The B Street, Town C property was subdivided in 2010. It is the Applicant’s evidence that he did much of the work necessary to clear the vacant block of vegetation and otherwise maintained it and the parties’ former family home both during and after the parties separated.

5. As previously indicated, the Applicant has obtained a formal valuation of the B Street, Town C property. This valuation was prepared by Ms M, a commercial valuer. She inspected the property and has obtained information in respect of the sale of a number of comparable properties in the last 6 months or so.

6. As previously indicated, Ms Gammon does not accept the validity of this valuation. However, she is not in a position to put forward any alternative valuation of the property concerned. In these circumstances, I accept Ms M’s valuation. Mr Barkley has deposed that, if he sells the vacant block and recoups its estimated value of $110,000.00, he would incur selling costs of around $6,300.00.  At this stage, it would be his preference to retain both blocks of land and pay any sum due to Ms Gammon by means of a mortgage secured against the property as a whole.

7. Since Ms Gammon vacated the property, Mr Barkley has paid all the rates and water charges in respect of the property and has replaced an air conditioner and bore pump. He calculates that he has paid approximately $8,000.00 in respect of maintenance and other general expenses relating to the property.[18]

   [18] Ibid [113].

8. The parties own two motor vehicles. A Motor Vehicle 1, which Mr Barkley retains. He values this vehicle at $20,000.00. It is not subject to any finance agreement. The parties also purchased a Motor Vehicle 2, in 2016, for $19,000.00. This vehicle was subject to a loan in favour of N Bank in an amount of $9,000.00. Ms Gammon used this vehicle and was driving it at the time she left Town C.

9. In mid-2018, Mr Barkley received a letter of demand from N Bank, as he had been the guarantor of Ms Gammon’s car loan, which was then in arrears. As a consequence, he paid out the loan in question in October 2018.

10. However, later he received correspondence from Victoria Police, indicating that the vehicle had been criminally damaged. He arranged for the vehicle to be trucked to his home. When he retrieved the vehicle, he discovered articles in it used to smoke methamphetamines. He estimates the value of the Motor Vehicle 2 at $2,000.00.

11. In 2016, the parties planned to go into business. As a consequence, they borrowed approximately $22,000.00 from Ms Gammon’s mother and from Mr Barkley’s parents, in order to obtain accountancy reports and other searches in respect of the purchase, which did not proceed. I accept that the parties remain indebted for these sums.

12. Mr Barkley has provided evidence of his earnings between 2010 and 2020. He has been in consistent employment during these periods. It is clear to me that Ms Gammon’s income, during the parties’ relationship was both intermittent and significantly less than that received by Mr Barkley.  I also accept that Mr Barkley utilised his income to joint family purposes, including supporting Mr D, whom he regards as his child, just as much as X and Y.

13. Given Mr Barkley was under no specific legal obligation to maintain Mr D, it is his case that this is a direct contribution, which considerations of just and equity dictate should be taken into account, in his favour, pursuant to the provisions of section 90SF(3)(r).[19]

    [19] See Robb & Robb (1995) 18 Fam LR 489 (

14. As a consequence of the parties’ separation, the Applicant applied for family tax benefits in respect of the children. This required him to make an application for child support. The Respondent was assessed to pay the statutory minimum from 5 October 2018 onwards. It is the Applicant’s uncontradicted evidence that Ms Gammon has not paid any child support to him.

15. In addition, he has been solely responsible for X and Y’s education and extracurricular expenses. The most significant are these: medical expenses related to orthodontic expenses required by X. The costs involved are $6,700.00.

    STEP ONE – THE POOL OF PROPERTY

16. Apart from disputing the value of the B Street, Town C property, the Respondent is not in a position to contest the pool of property available to be divided between the parties. In these circumstances I propose to adopt the asset table as formulated by Mr Barkley. It is as follows:

114       Item of property	Value ($)
115       B Street, Town C property	116       $410,000.00
117       Company E	118       $12,876.62
119       Motor Vehicle 1	120       $24,000.00
121       Motor Vehicle 2	122       $2,000.00
123       Household contents	124       $10,000.00
125       Cryptocurrency	126       $20,000.00
127       Total	128       $478,876.62
Liabilities	129       Value ($)
Mortgage on former family home	130       $24,800.20
Loan to Respondent’s mother	131       $12,000.00
Loan to Applicant’s parents	132       $10,000.00
Total	133       $46,800.20
Net Assets	134       $432,076.42
Superannuation	135       $
Applicant’s superannuation	136       $40,000.00
Respondent’s superannuation	137       $30,100.00

1. There is scant evidence regarding the loans said to have been advanced by each of the parties’ parents, particularly whether the debts attract interest or more importantly whether any demand for repayment will be made. I note that the loans are approximately equal in value.

2. In these circumstances, I will direct that each party indemnify the other in respect of the loan asserted to be owed to his/her parents but given the party of the loans will utilise them, to calculate the net pool available for division, which is $432,076.42.

   STEP TWO – ASSESSMENT OF CONTRIBUTIONS

3. The relationship between the parties was a reasonably lengthy one being approximately 16 or 17 years in duration. It produced two children. During the parties’ relationship, I am satisfied they pooled their financial resources and income, in a conventional manner, sharing homemaking and parenting responsibilities. They were a family in every sense of the word.

4. I accept Mr Barkley’s evidence that this is not a case which the parties entered the relationship with a significant disparity in terms of asset backing. Each owned a home, of modest value, in Town C. It was as a result of happenstance that Mr Barkley’s property came to be sold, leaving Ms Gammon’s property to become the parties’ family home. However, it is also clear that the proceeds of Mr Barkley’s property were utilised for joint family purposes.

5. In all these circumstances, I accept the submissions of Mr Boehm, counsel for the Applicant, that the parties’ various contributions provided during their relationship, should be assessed as being of equal worth.

   STEP THREE – ASSESSMENT OF PROSPECTIVE NEEDS

6. This is where the real weight of decision making rests in this particular case. The obvious difficulty being that I have no considered input from Ms Gammon about her current circumstances and likely needs in future.

7. I do know that she is not currently working and has not recently enjoyed good health. In the past, it would seem to be the case that she has laboured under some significant substance abuse issues. These factors, along with her lack of formal educational qualifications, are likely to retard her return to the workforce.

8. Ms Gammon has some work experience in retail sales. She is a person in her late-40s. Her current partner is not working. Sadly, her lack of engagement with the current proceedings would seem, more likely than not, to be an indicator that her life is not currently proceeding in an orderly manner.

9. In all these circumstances, Ms Gammon’s future financial needs – particularly in respect of secure place in which to live – are likely to be significant. I also concede in this context, if Mr Barkley’s characterisation of Ms Gammon as being a person with significant alcohol and substance abuse issues is accurate, it may not be in her interest to provide her with access to a large sum of money, which she may not utilise wisely.

10. In contrast, Mr Barkley has qualifications as a tradesman, which enable him to derive an income through self-employment. I accept that his income is modest and his work is physically demanding. He is 50 years of age. I accept his evidence that he cannot be expected to work, in this physically demanding way, indefinitely.

11. Neither party can be regarded as well prepared for retirement. Certainly, Mr Barkley has not been able to put by any significant stores of superannuation. In these circumstances, barring any unforeseen health incident or accident, he anticipates continuing working, in his capacity, until he turns 65 years of age.

12. In these circumstances, in my view, although his situation cannot be regarding as a comfortable and secure one, it is nonetheless much better than the situation, which apparently confronts Ms Gammon. Of course, it is also the case that, to a certain extent, Ms Gammon has been the author of her own difficult situation.

13. It has been said, by the Full Court, that the most valuable ‘asset’ a party can take out of a marriage is ‘a substantial, reliable income-earning capacity’.[20] In my view, Mr Barkley has such an asset, albeit in modest form and subject to his ongoing good health. Ms Gammon is not likely to be reliably employed, at least in the short to medium term. I appreciate, however, that she has done nothing to assist the Court in the accurate delineation of her circumstances.

    [20] See Clauson v Clauson (1995) 18 Fam LR 693, 710 (

14. To his very great credit, Mr Barkley has provided financial support for X and Y and indeed Mr D, since the parties separated. Mr D now lives independently but, in the past, the Applicant has funded his driving lessons; provided a motor vehicle for him; and supported his accommodation, whilst in Adelaide, completing trade school.

15. In respect of the financial support of X and Y, Mr Barkley has deposed as follows:

    I am single handedly raising our children X aged fourteen (14) and Y aged thirteen (13). The cost of meeting their everyday living expenses is significant. Our food bill is around $300 to $400 per week. Our electricity bill for each quarter is around $1,000. Our large gas bottle is replaced at a cost of $145 each time. The children and I have a family phone plan costing me $380 each month. Our internet plan is $115 per month and the children have Netflix ($15.99pm), Kayo ($25.00pm), Spotify ($11.99pm) and iCloud Storage ($4.99pm) which I pay. [21]

    [21] See Affidavit of the Applicant filed 8 February 2021 at [124].

16. Mr Barkley has not re-partnered. In my view, he is entitled to enjoy a reasonable standard of living, following the end of the parties’ de facto relationship. In this respect, the most significant issue, from his perspective, is his continued occupation of the B Street, Town C property, which has been his and the children’s home for many years.

17. It would be fundamental to him, in all the circumstances of the case, if he were compelled to leave it because of any requirement to satisfy the claims of Ms Gammon or, in the alternative, he is left with the property subject to a significant level of mortgage debt, which he may have difficulty in servicing.

18. In all these circumstances, Mr Barkley’s ongoing obligation to financially support X and Y, without any assistance from Ms Gammon, including providing a home for them, in Town C, is the factor which most significantly militates in his favour, notwithstanding Ms Gammon’s own challenging situation.

19. In all these circumstances I propose to make a further adjustment, in Mr Barkley’s favour, of 20%, resulting in a 70% / 30% split insofar as the non-superannuation assets of the relationship are concerned.

20. As previously indicated, neither party has significant stores of superannuation – certainly of not sufficient quantum to provide any comfortable buffer in retirement. In these circumstances, I do not propose to take the superannuation into account, other than each party will retain the superannuation, currently standing in each party’s name. These amounts are not greatly disparate.

    CONCLUSIONS – CONSIDERATIONS OF JUSTICE AND EQUITY

21. At this stage, the overwhelming evidence indicates that Mr Barkley has assumed the primary parenting role for the parties’ children. It is also apparent that Ms Gammon will not be able to discharge any aspect of this role for the foreseeable future.

22. It is clear that the parties’ relationship has come to an end.  As such, it is artificial in the extreme that Mr Barkley continues to live in and maintain a property to which he is not legally entitled and which is essential for the on-going care of the parties’ children.  In these circumstances, considerations of justice and equity dictate that the parties’ financial relationship be brought to an end and that clarity is established in respect of the ownership of their former family home.

23. I propose to divide the non-superannuation assets of the relationship pursuant to a 70% / 30% split in favour of Mr Barkley. As indicated above, the net assets of the relationship is a sum of $432,076.42. Seventy percent of this sum is represented as a figure of $302,453.49 and thirty percent of this sum is represented as $129,622.93. Ms Gammon does not currently hold any assets. Accordingly, no items need to be deducted from this figure in order to calculate the sum due to her from Mr Barkley.

24. Mr Barkley will leave the relationship with the security of a home for himself and the children of the relationship. He has his business and his assets as a tradesman. He will also be significantly in debt if he elects to take out a mortgage, but the level of his debt should be manageable for him, particularly while he continues to work and interest rates are low.

25. Ms Gammon will be entitled to a significant sum of money, which reflects the length of the relationship and the level of her asset backing when she entered the relationship. If she utilises this sum wisely, it should provide her with the potential to secure some form of long term accommodation for herself.

26. The greatest difficulty currently facing Ms Gammon is her limited ability to pursue employment at the present time and her lack of skills. She is not likely to be an attractive prospect to any home lender or have the capacity to service a loan.  

27. More significantly, I have grave reservations in respect of how Ms Gammon will utilise her settlement entitlements if they are provided to her in a lump sum. In this sense, the case presents a dilemma.

28. Mr Barkley is entitled to finalise his financial relationship with Ms Gammon. He has pursued his application with a proper level of diligence. Ms Gammon, although it would have been manifestly in her interests to do so, has not. In these circumstances, the case must be finalised, notwithstanding the obvious difficulties confronting Ms Gammon.

29. For the reasons already provided, I was not prepared to adjourn the case again so that Ms Gammon could conceivably obtain legal advice, and in turn, advice as to how to approach any settlement achieved by her. I formed this view that it would be unfair to Mr Barkley to further delay the case and was pessimistic that Ms Gammon would utilise any adjournment wisely.

30. There is no evidence to indicate that Ms Gammon is under any specific legal disability. In addition, as previously indicated, pursuant to the provisions of section 90ST of the Family Law Act 1975 (Cth), the Court is under an obligation to end financial relations between separated de facto partners.

31. In this context, it is unworkable for Mr Barkley to live in, maintain and fund a property in which he has no legal interest. Justice and equity require this anomalous situation to be addressed.

32. In these circumstances, notwithstanding the disquiet the prospect engenders, the only realistic outcome is that Mr Barkley pays Ms Gammon the sum to which the Court has calculated she is entitled.   

33. As outlined above, I make no order as to the division of superannuation with each party to retain their current superannuation.  

34. In all the circumstances, I am satisfied that the outcome proposed is a just and equitable one. For all these reasons, the orders of the Court are as set out at the commencement of these reasons for judgment.

    COSTS

35. Mr Barkley seeks costs in an amount of $23,700.14.  This sum represents all the costs levied by his solicitor Mr Norcock, as well as all disbursements incurred on his behalf that relate to land valuations and particularly several fees relating to appearance of his counsel, Mr Boehm.  In rough terms, it represents around 5.5 percent of the net asset pool, in a case involving modest assets, which has been largely uncontested.

36. However, there can be no doubt that Ms Gammon’s non engagement with the case and then her abrupt but inconclusive involvement in it has resulted in the case becoming unduly protracted, which in turn has added to Mr Barkley’s exposure to costs.  As I have indicated throughout these reasons for judgment, Mr Barkley had no alternative but to issue these proceedings and the conduct of Ms Gammon made it necessary for the case to proceed to final hearing, albeit on an essentially undefended basis.

37. In my view, these factors render it both proper and just pursuant to s 117(2) of the Family Law Act 1975 (Cth) that Ms Gammon make some significant contribution towards the costs incurred by Mr Barkley, notwithstanding her uncertain financial situation and the fact that she has not been in a position to contest the evidence of Mr Barkley.

38. Section 117(1) of the Family Law Act 1975 (Cth) abolishes for the purpose of family law proceedings, the general rule that, in civil proceedings, costs follow the event. It provides that each party should bear his or her own costs in such proceedings.

39. However, pursuant to section 117(2), if the Court is of the opinion that there are circumstances that justify it in doing so, it may, subject to a number of stipulated considerations, make such order as to costs as it considers just. 

40. The relevant considerations are set out in section 117(2A) of the Family Law Act 1975 (Cth) and are as follows:

    •The financial circumstances of each of the parties to the proceedings;

    •Whether any party to the proceedings is in receipt of legal aid;

    •The conduct of the parties to the proceedings, including in respect of issues of discovery and production of documents;

    •Whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court; 

    •Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    •Whether any party has made an offer in writing to settle the proceedings and the terms of any such offer;

    •Such other matters as the court considers relevant.[22]

    [22] Family Law Act 1975 (Cth) s 117(2A).

1. The Court’s discretion to make an order for costs is a wide one and includes the authority to make an order for indemnity costs.  However, the discretion remains one which must be exercised carefully and judicially. 

2. In this context, orders for indemnity costs are extraordinary or exceptional in nature. The Full Court of the Family Court noted Inthe Marriage of Kohan that an order for indemnity costs as ‘being a very great departure from the normal standard’.[23]  In this context, the Full Court said as follows:

   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.[24]

   [23] In the Marriage of Kohan (1992) 16 Fam LR 245, 254 (Strauss, Lindenmayer and Bulley JJ).

   [24] Ibid 258.

3. There is no closed category of cases in which indemnity costs may appropriately be awarded.  However, in Colgate Palmolive Co v Cussons Pty Ltd,[25] the Full Court of the Federal Court indicated that the kinds of situation in which indemnity costs might be considered included those in which a litigant had:

   •Commenced or continued an action knowing it to have no chance of success;

   •Made false or irrelevant allegations of fraud;

   •Made groundless allegations, which prolonged the case concerned; and

   •Imprudently refused an offer to compromise.[26]

   [25] (1993) 46 FCR 225.

   [26] Ibid 231, 233 (Sheppard J).

4. If the Court determines to make an order for costs, it has a wide discretion as to the calculation of such costs. Pursuant to rule 21.02(2) of the Rules:

   In making an order for costs in a proceeding, the Court may:

   (a)set the amount of the costs; or

   (b)set the method by which the costs are to be calculated; or

   (c)refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or

   (d)set a time for payment of the costs, which may be before the proceeding is concluded.[27]

   [27] Federal Circuit Court Rules 2001 (Cth) r 21.02(2).

5. Accordingly, the discretion provided by rule 21.02(2) provides potential different mechanisms, for the awarding of costs, under either the Rules of this Court or the Family Court or indeed on a generic discretionary basis. This is reflective of the potential differences, particularly in respect of issues of complexity, which may arise from the nature of the jurisdiction conducted in each Court.

6. However, rule 21.10 of the Rules provides a minimum level of entitlement, in respect of any award of costs, if made by the Federal Circuit Court. The rule provides as follows:

   Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:

   (a) costs in accordance with Parts 1 and 2 of Schedule 1; and

   (b)       disbursements properly incurred.[28]

   [28] Ibid r 21.10.

7. Pursuant to rule 21.16 the Court may certify that it was reasonable for any party to employ an advocate to appear on his or her behalf in a proceedings. If such a certification is made, the amount payable for counsel to appear is the ‘daily hearing fee and advocacy loading in accordance with Parts 1 and 2 of Schedule 1’.[29]

   [29] Ibid r 21.16.

8. Rule 21.10 and the schedule under it create a scale of costs by reference to the occurrence of fixed events.[30]  The procedure in question is clearly designed to allow the ready calculation of costs incurred following the various procedural stages of litigation from filing to finalisation with judgment. 

   [30] Ibid r 21.10.

9. It is a system which is most amenable, in its application, to less complex forms of litigation.  In my view, this mechanism was in keeping with the objects of the Federal Circuit Court as set out in section 3(2) of the Federal Circuit Court Act 1999 (Cth),which include the following:

   •To enable the Federal Circuit Court to operate as informally as possible in the exercise of judicial power; and

   •To enable the Federal Circuit Court to use streamlined procedures; and

   •To encourage the use of a range of appropriate resolution dispute processes.[31]

   [31] Federal Circuit Court Act 1999 (Cth) s 3(2).

10. As I have previously outlined, this is a sad and dispiriting case that could have been resolved through negotiation and compromise with the assistance of experienced legal practitioners. As it transpired, this is a case that proceeded to final hearing due to Ms Gammon’s lack of conduct and her failure to engage with the matter.

11. Mr Barkley was faced with no other alternative other than to issue proceedings. Therefore, I consider that it is just pursuant to section 117(2) of the Family Law Act 1975 (Cth) to make an order as to costs. I am not in a position to make an order to award indemnity costs, but rather I propose that costs be shared in equal portions between the parties.

12. I note the following in calculating the total amount of costs that are relevant to these proceedings:

    ·Mr Barkley is seeking a costs order against Ms Gammon in the amount of $23,700.14, being the total amount of legal fees as at the date of the final hearing on 9 June 2021;

    ·Pursuant to the scale of costs under Schedule 1 of the Rules, the total legal, counsel and filing fees with this Court are calculated at approximately $19,184.00;

    ·I also note that in Mr Barkley’s affidavit dated 14 May 2021, there are disbursements in the form of land valuations that total $2,830.50 that should be accounted for in this figure of costs, which make the total figure $22,014.50. I am satisfied that pursuant to rule 21.10 of the Rules that this is an appropriate sum as to costs and disbursements properly incurred.

13. Consequently, I propose to award Mr Barkley a lump sum costs fixed to the sum of $11,007.25 to be paid out of the Respondent’s final settlement sum as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and ninety (190) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

Associate:  

Dated:       29 June 2021