BENNETT & BENNETT

[2016] FamCA 958

FAMILY COURT OF AUSTRALIA

BENNETT & BENNETT [2016] FamCA 958

FAMILY LAW – PRACTICE AND PROCEDURE – Review of exercise of power by a Judicial Registrar – hearing de novo – where the husband seeks to review a decision by the Registrar refusing to adjourn a case assessment conference – where the husband had sought an adjournment on the basis that the wife had failed to comply with pre-action procedures – where the wife had attempted to comply with pre-action procedures – where pursuant to r 1.05(2)(b) of the Family Law Rules – the wife was not obliged to comply with pre-action procedures given allegations of family violence – husband’s application dismissed

FAMILY LAW – COSTS – Application by the wife for costs in a fixed sum – where the husband’s application was misconceived and doomed to fail – where the husband was wholly unsuccessful – financial circumstances of the parties considered – order for costs in a fixed sum

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Bennett

RESPONDENT: Ms Bennett

FILE NUMBER: MLC 1945 of 2016

DATE DELIVERED: 3 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 3 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Devries

SOLICITOR FOR THE APPLICANT: Fiona McGregor

THE RESPONDENT: In Person

Orders

1. That within 21 days:-

   (a)       The wife provide to the husband a list of chattels removed by her from the property at B Street, Suburb A (“Suburb A”);

   (b)       The husband provide to the wife’s lawyers a list of the chattels he alleges the wife has removed from Suburb A.

2. That the husband’s Application in a Case filed 2 June 2016 and the wife’s Response to Application in a Case filed 29 July 2016 be otherwise dismissed.

3. That the husband pay the wife’s costs fixed in the sum of $1,760.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1945 of 2016

Mr Bennett

Applicant

And

Ms Bennett

Respondent

REASONS FOR JUDGMENT

1. The matter of Bennett comes before me today in a Judicial Duty List.  The application made is that of the husband.  It is his Application in a Case filed 2 June 2016 in which he seeks that there be a review of the decision of Registrar Moser made 24 May 2016, particularly her decision to dismiss his application for an adjournment of a case assessment conference that was convened by her that day.  The application is supported by a submission filed by the husband on 2 June 2016.  The wife has filed a Response to an Application in a Case on 29 July 2016.  That response is supported by her affidavit filed the same day. 

2. The background to the proceedings is as follows. 

3. The husband is Mr Bennett.  He is aged 64 years.  He resides in the former matrimonial home at Suburb A.  He is retired. 

4. The wife is Ms Bennett.  She is aged 58 years.  She currently resides in Suburb C. 

5. The parties married in 1980 and separated in October 2015.  Theirs is a marriage that spans some 35 years. 

6. The background to the matter is that following the parties’ separation, intervention order proceedings were commenced by the wife against the husband in the Magistrates’ Court at Suburb D.  Interim orders were made in October 2015, and there have been subsequent proceedings with respect to that application as well as alleged breaches of intervention orders since that time. 

7. The wife deposes in her affidavit filed 29 July that following the parties’ separation there were attempts by her to engage in a mediation process with the husband.  In support of that allegation she relies upon an exchange of emails that occurred between the parties on 1 December 2015 being annexure DRB2 to her affidavit.

8. It is common ground between the parties that mediation did not occur at that time due to the husband’s concerns about that process.  On 22 January 2016 the wife caused her solicitors to write a letter to the husband.  That letter confirmed that the solicitors acted for the wife, set out the wife’s instructions as to the parties’ financial circumstances, extended an invitation to the husband to obtain independent legal advice and to have his solicitors communicate with the wife’s lawyers.  There was no response by the husband to that communication. 

9. On 7 March 2016 the wife caused an Initiating Application to be filed in this Court in which she sought orders for final property settlement.  That application was listed for a case assessment conference on 24 May 2016. 

10. On 20 May 2016, in anticipation of that conference, the husband filed his Response to Initiating Application, an affidavit and his Financial Statement. 

11. The conference was convened by Registrar Moser.  It is evident from the orders made that that day the husband made application for an adjournment of the case assessment conference on the basis that the wife had failed to comply with pre-action procedures.  That application for an adjournment was refused by the Registrar.  She made further orders for disclosure, that the parties exchange documents by 31 August 2016, and that the matter be listed for a conciliation conference with a Registrar at 11.00 am on 26 September 2016.  The Registrar also made orders for exchanges of appraisals of assets in which there is dispute as to value.  There is also to be a joint valuation of the husband’s defined benefits superannuation scheme. 

12. Subsequent to that Court event I am told that the parties have now engaged in a mediation process.  The parties attended mediation at Suburb D on 28 July 2016, and there is a further appointment for them to attend on 1 September 2016.  The wife has confirmed through her lawyer her commitment to continue with the mediation process.

13. The centrepiece of the husband’s complaint before me is the apparent failure, or alleged failure by the wife’s lawyers to comply with the pre-action procedure process.  Having regard to the history of the matter, particularly the communications which occurred between the parties in early December 2015 regarding proposals to mediate, those proposals then refused by the husband, and further, the letter sent by the wife’s lawyers on 22 January 2016 inviting the husband to communicate with the wife’s lawyers regarding property matters, I do not accept the husband’s submission that there has been a failure by the wife’s lawyers to engage in pre-action processes. 

14. Rule 1.05 of the Family Law Rules 2004 (Cth) (“the Rules”) sets out the pre-action procedure. Rule 1.05(2)(b) of the Rules provides that compliance with the pre-action procedures is not necessary if:

    for a property case--the case involves allegations of family violence, or the risk of family violence, or fraud;

15. It is common ground between the parties that there are allegations of family violence.  Those allegations have been on foot since October 2015.  Hence, in my view it was not necessary for the wife’s lawyers to engage in pre-action procedures in those circumstances.  Nonetheless there were no less than two attempts by the wife, both personally and through her lawyers to engage in those procedures with the husband.

16. In particular, I refer to the exchange of emails between the husband and wife in December 2015 regarding the mediation and, further, the letter from the wife’s lawyer dated 22 January 2016.  Hence, in my view, having regard to those circumstances, the husband’s complaint that there has been a failure to engage in pre-action procedures is ill-conceived.  In my view, there was no basis for an adjournment of the proceedings with respect to that issue.  The husband seeks an adjournment of the proceedings until the pre-action procedures listed in step 3 of the brochure are followed.  Step 3 of the pre-action procedures brochure requires that there be a written notice of issues and future intentions.

17. As I have already noted, it is not necessary for the wife’s lawyers to have engaged in the pre-action procedures in the circumstances of this case, given the allegations of family violence.  Nonetheless, it is evident that the parties are engaging in those procedures by virtue of the fact that they are now attending a mediation process.  There is communication on foot and, further, there are orders regarding exchange of documents and information that will no doubt assist the parties in engaging in the mediation process.  In the circumstances, I do not consider that these proceedings should be adjourned until pre-action procedures listed in step 3 are followed.

18. The husband also seeks an order that the Registrar be compelled to consider evidence that the existence of an interim intervention order is inhibiting the respondent’s ability to communicate with the applicant and her lawyer.  Again, in my view, that application is misconceived.  The current intervention order, which has been handed up to the Court and which I will mark as an exhibit, is an order dated 16 May 2016.  Paragraph 9 of that order provides that the respondent may communicate with a protected person through a lawyer or mediator or arrange and/or participate in counselling or mediation but only if the respondent does not commit family violence while doing so.

19. Hence, having regard to the terms of the current interim intervention order, there is no impediment to the husband communicating with the wife through her lawyer for the purposes of progressing these proceedings. 

20. The final issue raised by the husband is that the orders sought by him at paragraphs 3 and 6 of his Response to Initiating Application were not considered or acted upon by the Registrar.  The husband did not make any submissions before me with respect to paragraph 3 of his Response to Initiating Application.  Paragraph 6 of that application related to his request that there be an exchange or a list provided to him by the wife of the chattels removed by her following the parties’ separation.

21. That part of his application was supported by his affidavit filed 20 May 2016 and, in particular, paragraph 3 of that affidavit, which is contained at page 2D.  There the husband deposes that approximately two weeks after the separation the applicant, under the supervision of Suburb A Police, removed four carloads of personal property from the former matrimonial home.  The husband alleges that on 12 May 2015 the wife emailed him, stating that she had removed all her property from the former matrimonial home and that the police said she could.  He deposes that upon returning to the property he found that the house had been selectively gone through and significant property of mutual ownership and family importance had been removed without negotiation.

22. The division of chattels between parties is often a contentious issue.  It is a matter that will be relevant to the determination of the final property applications before the Court.  The position of the wife in response to that application is that there should be an exchange of lists – that is, that the wife prepare a list of the chattels she has removed and the husband prepare a list of the chattels he says were removed and then, therefore, there can be a comparison of that list.  The wife says that there is no necessity for an order to that effect, that the transcript records that that list will be provided by her within 14 days.

23. In the circumstances, given the contentious issues between the parties and having regard to the other orders made by the Registrar, what I propose to do is make an order that there be a mutual exchange of lists and that that occur within 28 days.  That will ensure that each party has available to them the list of chattels removed or said to be removed so that there can be identification of issues between them with respect to chattels well prior to the conciliation conference and the resumption of the mediation process.

24. The wife makes an application for her costs of and incidental to the application before me today. The wife seeks costs in the sum of $1,760. That is comprised of the costs of her lawyer in preparing her Response to an Application in a Case and affidavit in support, as well as the brief to counsel. In addition, she seeks her counsel’s fees of today, fixed in the sum of $1,100, that being a midpoint as to the range of costs to which she would be entitled to apply, having regard to the provisions of the Rules.

25. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) deals with the issue of costs. The usual rule is that in proceedings in this Court each party to proceedings shall bear his or her own costs.

26. Section 117(2) sets out the circumstances in which an application for costs may be made. That is, the Court may make an order for costs if it is of the opinion that there are circumstances that justify it in doing so. The matters to be taken into account in determining such application are set out in section 117(2)(A) of the Act. The position and the submissions that were made on behalf of the wife is that the husband’s application was ill-conceived and without merit and it is in those circumstances that an order for costs is sought. The husband opposes the application, particularly relying upon what he says are his difficult financial circumstances.

27. He says that there is a disparity in respect of the parties’ financial position, he being asset rich and cash poor.  He concedes that he has savings of approximately $88,000 in his bank accounts.  He points to the fact that the wife, in contrast, has significant savings – something in the order of $450,000.  On the basis he says that there should be no order as to costs.  As I have identified in my earlier reasons for judgment, in my view, the husband’s application is misconceived.  He has pressed matters before me today in his application that were doomed to fail.

28. That is so particularly with respect to his application that the proceedings be adjourned, pending compliance with pre-action procedures.  Given that the parties have engaged in mediation as recently as last week, in my view, the application before me today is without merit.  In the circumstances where the parties have clearly undertaken a mediation process, there should have been consideration of a withdrawal of the application listed today to avoid the costs associated with this application.  Having regard to those circumstances and noting the parties’ respective financial positions, as is contained in their Financial Statements – that is, the husband’s Financial Statement, filed 20 May 2016 as well as the wife’s Financial Statement filed 7 March 2016 – I am satisfied that it is appropriate to make an order for costs.

29. I am satisfied that the quantum of costs sought by the wife is appropriate in the circumstances, having regard to the schedule of costs as provided in the Rules.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 3 August 2016.

Associate

Date:  3 August 2016