Belwynne and Soli

[2012] FamCA 720

FAMILY COURT OF AUSTRALIA

BELWYNNE & SOLI [2012] FamCA 720

FAMILY LAW – COSTS – What is a just order – Financial circumstances not updated – No costs order made

Family Law Act 1975 (Cth)

APPLICANT: Mr Belwynne

RESPONDENT: Ms Soli

FILE NUMBER: MLC 11083 of 2009

DATE DELIVERED: 7 September 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 7 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Black

SOLICITOR FOR THE APPLICANT: Lennon Mazzeo Lawyers

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT the Application in a Case filed 28 June 2012 be dismissed.

2. THAT the application for costs made on behalf of the husband this day be dismissed.

3. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Belwynne & Soli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11083 of 2009

Mr Belwynne

Applicant

And

Ms Soli

Respondent

REASONS FOR JUDGMENT

1. The matter of Belwynne & Soli (formally Belwynne) is before me as a consequence of the orders made on 9 July 2012.  Ms Black appears for the husband and there is no appearance by or on behalf of the wife.  Ms Black has informed that court that she spoke by telephone to the wife shortly before the commencement of the proceedings this day she simply indicated that she could not and would not attend at court.

2. I am satisfied that the wife knew the adjourned hearing, notwithstanding that she had not appeared before me on 9 July 2012 when the earlier orders were made.

3. The background to this matter is that the parties were in dispute over appropriate parenting arrangements and orders for their daughter, M who is now just over four years of age.  All of those issues were resolved and orders by consent were made by Registrar Sikiotis on 24 August 2011.  The outcome of those consent orders were that the parties have sole responsibility for the day-to-day care of the child whilst she is in their care, but otherwise they share equal parent responsibility. 

4. What the orders effectively create is a division each week of the parents time with the child, so that in one week, and in general terms, the father has three days and then in the following week four days, and the mother the vice versa of that arrangement, subject to other holidays and specific orders contained within the final negotiated orders. 

5. I also see from the orders that there was a final settlement of property, the effect of which was that the husband paid to the wife $22,000.  There are other extensive orders in relation to the transfer of control and shares in corporate entities.  The wife retained Business C in Melbourne and the husband made various taxation and other payments in accordance with the provisions of paragraph 22 of the orders.

6. The proceedings came before me because of the dispute over the provision of the passport for the child to travel overseas, and, ultimately, that occurred somewhat in negotiation as is apparent from the notation that I made to my orders of 9 July 2012. 

7. The only remaining issue in this case is that the husband was put to legal expense in the preparation of documents and in the appearance of Mr Lennon before me on the earlier occasion, and Ms Black on this occasion.  The estimate that I have of the husband’s costs is $4,000.  On behalf of her client, Ms Black seeks an order for costs in that sum made against the wife.

8. I have been given a background that there have been various offers to resolve costs in correspondence issued by the husband’s solicitors which have either been ignored or refused by the wife who acts before herself in the proceedings at this stage.  She previously having engaged Kempsons Lawyers in the earlier parenting proceedings.

9. I have had access in the file to earlier financial statements.  The husband had filed his on 24 June 2011 and the wife had filed hers back in February of 2010, plus they are both out of date and were filed prior to the negotiated section 79 orders. 

10. As best as I can understand the husband’s statement, he is a self-employed  Consultant.  His current income is unknown.  His assets are of considerable value, though, likewise, his liabilities are also significant and on his previously filed financial document, they exceed his assets. 

11. As to the wife and other than the $22,000 received in the property division as a lump sum payment, and aside from her ownership and retention of the business which she conducts in Melbourne, her financial document discloses no real property, but does identify a cash sum at a Westpac Bank that she previously had declared in paragraph 37 of her financial statement.  I have no current knowledge of her current assets, any other liabilities, or of her income. 

12. The application for costs is made pursuant to section 117 of the Family Law Act 1975 (Cth). Section (1) requires each party to bear his or her own costs. The court, however, if it is of the opinion that there are circumstances that justify it in so doing, may make an order for costs as it considers just. The factors that the court would then consider in determining the justice of any award of costs are itemised in sub-section (2A) thereof. Of relevance to this case, they include:

    a)the financial circumstances of each of the parties to the proceedings

    d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

    e)whether any party has been wholly unsuccessful

    f)whether either party to the proceedings has made an offer in writing to the other party to settle the proceedings and the terms of any such offer.

13. I have primarily focused upon the financial circumstances of the parties in my questions of Ms Black.  There are no up-to-date financial statements filed, and I simply do not have any current and informed understanding of the respective financial circumstances, and, in particular, of those of the wife to pay a costs order in the sum of $4,000 or any lesser sum that I might consider just and appropriate to order.

14. The focus of Ms Black was substantially upon (d), that is, that the husband was required to bring the proceedings to court because the wife would not hand over the passport in circumstances where it should have occurred in the structure of the consent parenting orders, and, in particular, where paragraph 16 of those orders provided:

    That the party shall sign all documents and do all things necessary to procure passport for the child, and that the passport be held be the wife when not in use by the husband, subject to the passport being made available to the husband upon his written request when required for the child to travel.

15. I do accept that pursuant to paragraph 16, the wife should have immediately made available that passport to the husband.  She was in breach of that paragraph of those consent orders.  There is a level of merit in Ms Black’s argument that solely on the basis of (d), I should order costs.  First, because the husband has had unnecessary financial expense, but also it would be an appropriate warning or, at least, “a lesson”, to the wife.  I have given due and proper consideration, but, ultimately, my concern remains my knowledge of the financial circumstances of the parties and the likely, very substantial difference in their income, their assets and their financial circumstances. 

16. Ultimately, I cannot conclude that it is just that I vary from the primary position which Parliament has enacted and that is each party shall pay his or her own costs in the proceedings unless otherwise it is just to vary that outcome.

17. I conclude that it is not just on this particular occasion, and I, therefore, will not make the costs order as sought in the sum of $4,000 or, indeed, any lesser sum.  However, for the position of clarity and so that the wife might well and truly understand the requirement of paragraph 16, I want to make perfectly clear to her and for the benefit of any other judicial officer having this matter arise in this case again, the wife must provide M’s passport upon written request, so the husband and his daughter can travel overseas.

18. I myself would regard the wife’s refusal to immediately deliver up the passport on any future occasion to be a serious breach of the order, and, as such, and given the approach that I have adopted on this occasion, were the wife to wantonly breach paragraph 16 of the primary consent orders again, and I could only imagine it would be at her financial peril and most likely, there would and should be circumstances in which it would be just to make a significant costs order against the wife. 

19. Thus, I trust she well and truly considers her position and obeys the court order.  Of course, any further breach of that court order by the wife, should it occur, would also be relevant to any other future parenting proceedings.  These parties must have a good relationship, even if conducted by email, because of the handover of the child on two occasions in each week, and one would hope that would continue and neither party would seek to reissue proceedings for parenting changes.  However, I do not speculate upon what the future holds. 

20. For those brief reasons delivered ex tempore without departing the bench, I will dismiss both the costs application orally made by Ms Black on behalf of her client today, and the extant application, that is, the application of 28 June of this year.  Thus there are no other proceedings before the court, and the matter can be removed from the act of pending cases list and from my docket.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 7 September 2012.

Associate: 

Date:  7 September 2012