Bennett & Crick
[2021] FedCFamC2F 122
•21 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bennett & Crick [2021] FedCFamC2F 122
File number(s): PAC 2610 of 2016 Judgment of: JUDGE OBRADOVIC Date of judgment: 21 October 2021 Catchwords: FAMILY LAW – property – adjustment of property interests – de facto relationship – family violence – lack of disclosure – assessment of contributions – just and equitable Legislation: Family Law Act 1975 (Cth), ss 79, 90RD, 90SF, 90SM, 117 Cases cited: Bennett & Crick [2017] FCCA 329
Bevan & Bevan [2014] FamCAFC 19
Black & Kellner [1992] FamCA 2
Chapman & Chapman [2014] FamCAFC 91
Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158
Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 364
Greedy and Greedy [1982] FamCA 41
I & I (No.2) [1995] FamCA 80
In the Marriage of Weir (1992) 16 FamLR 154
Jensen &Jensen [1982] FamCA 57
Kennon & Kennon (1997) FLC 92-757
Kohan & Kohan [1992] FamCA 116
Latoudis v Casey [1990] HCA 59
Marriage of Briese [1985] FamCA 23
Medlon & Medlon (No.6) (Indemnity Costs) [2015] FamCAFC 157
Munday v Bowman (1997) FLC 92-784
Oamra & Williams [2021] FamCAFC 117
Oriolo v Oriolo [1985] FamCA 54
Penfold & Penfold [1980] HCA 4
Peters & Walker [2015] FamCA 732
Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993
Renald & Renald (Costs) [2018] FamCAFC 4
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Stasiuk & Guild [2021] FamCAFC 62
Teal & Teal [2010] FamCAFC 120
Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd [1991] FCA 225
Trevi & Trevi [2018] FamCAFC 173Division: Division 2 Family Law Date of hearing: 16, 17 November 2020, 28 January and 18 October 2021 Place: Parramatta Number of paragraphs: 152 Counsel for the Applicant: Ms Druitt Solicitor for the Applicant: Valenti & Valenti Solicitors Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Grover Law ORDERS
PAC 2610 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BENNETT
Applicant
AND: MR CRICK
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.
The Applicant de facto wife, Ms Bennett (“wife”) shall retain the sole right, title and interest in the property known as and situated at B Street, Suburb L NSW Folio ID…
(“the Suburb L property”) and the Respondent de facto husband, Mr Crick (“husband”) shall forthwith relinquish all right, claim, title and interest therein.
2.The husband shall be solely entitled to the net proceeds of sale of the property known as and situated at F Street, Suburb D, NSW and the wife shall forthwith relinquish all right, title, claim or interest therein.
3.The husband shall retain the sole right, title and interest in the business and company known as Company F and all the assets and liabilities of the business/company and the wife shall forthwith relinquish all right, claim, title or interest therein.
4.Within 14 days of the date of these orders, the husband and wife shall do all such things, acts and deeds and sign all documents necessary to list for sale and sell the property known as and situated at G Street, Suburb F NSW Folio ID … (“the Suburb F property”) at the best price reasonably obtainable with vacant possession and, for that purpose:
(a)The husband and wife shall agree upon and appoint a reputable real estate agent or agents for sale and shall agree upon a sale price at which that property is to be listed for sale, such sale to proceed, in the first instance, by private treaty.
(b)In the event that the parties are unable to agree upon the appointment of an agent or agents for the sale within 14 days of the date of these orders, that they or either of them may forthwith request the President for the time being of the Real Institute of New South Wales to appoint an agent or agents for sale.
(c)In the event that the parties are unable to agree upon the amount at which the Suburb F property is to be listed for sale within 14 days of the date of these orders, they or either of them may forthwith request the President of the Australian Property Institute (NSW Division) to appoint a valuer to carry out a valuation of that property and the valuation so determined shall be the amount at which that property is listed for sale by private treaty.
(d)The parties shall bear equally the costs of the aforesaid Presidents and the valuer, such valuer to act as an expert and not as an arbitrator.
5.In the event that the Suburb F property has not been sold by private treaty within three months of the date upon which it is first listed for sale, then the parties or either of them may forthwith request the agent or agents to list that property for sale by auction, such auction to take place within six weeks of it being so listed for auction sale. The parties shall agree upon a reserve price or failing that agreement by no later than 3 weeks before the auction, the parties or either of them may request the President for the time being of the Australian Property Institute (NSW Division) to appoint a valuer to carry out a valuation of that property and 100% of the amount at which the property is so valued shall be the reserve price point for the purpose of that auction, and the parties shall bear equally the expenses of such President and any valuer so appointed by him, such valuer to act as an expert and not as arbitrator.
6.In the event that the Suburb F property does not sell at the auction as above referred to in the preceding order or within 14 days thereafter, the parties or either of them may request that the property be relisted for sale by private treaty, the sale price to be agreed upon or failing agreement to be no less than 100% of the valuation earlier obtained in accordance with the provisions of orders 4(c) and (d) hereof and also provide however that either party may also, upon one month’s notice in writing to the other, require the sale of the property by way of a second auction to be undertaken in accordance with the provisions of order 5 with a new reserve price of 90% of the valuation referred to therein.
7.Upon completion of sale of the Suburb F property the proceeds thereof be distributed in the following manner and priority:
(a)Firstly, in payment of the agent’s commission, auctioneer’s and auction expenses and proper solicitor’s costs incurred on the sale;
(b)Secondly, in payment of the mortgage from Westpac bank over the property;
(c)Thirdly, in adjustment of Council rates and water rates on settlement;
(d)Fourthly,
(i)$ 3,302,199 to the wife; and
(ii)the remainder to the husband.
8.Pending the completion of sale of the Suburb F property the husband shall not further encumber, charge or mortgage his interest in the Suburb F property.
9.The solicitors acting on the sale of the Suburb F property shall be Grover Law who shall prepare the contract for sale in accordance with these orders.
10.IT IS DECLARED that unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders, each party is solely entitled to the exclusion of the other party to all property including furniture and personal effects, motor vehicle trucks, trailers, machinery, monies in bank accounts or building societies, superannuation contributions and long service and other employment type emoluments (and also including choses in action) in the possession or control of such party as at this date.
11.The husband shall be responsible for all debts in his name, or the name of the business/company known as Company F as at the date of these orders and in the future and the husband shall indemnify and shall continue to indemnify the wife against any liability of any nature which the husband may have in his name or arising from the business Company F.
12.The husband shall be solely responsible for tax liabilities in his name or that of Company F and indemnifies and shall continue to indemnify the wife against any such liabilities.
13.The wife shall be responsible for any debts in her name as at the date of these orders and in the future and the wife shall indemnify and keep indemnified the husband in respect of any such debts.
14.In the event that these orders herein contained direct either the husband or the wife or both of them to execute a Deed or Instrument necessary to give effect to these orders, and that person has, after the period of 7 days after written notice is provided, refused or neglected to comply with that direction, then the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute any such document in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the Deed or Instrument and the costs thrown away by reason of such default shall be paid by the party whose default has occasioned such default on an indemnity basis.
15.The parties are granted liberty to apply in relation to the implementation and/or enforcement of these orders on seven days’ notice.
16.Within 28 days, the husband is to pay to the wife costs in the amount of $19,038.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Bennett & Crick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
Background
Before the Court is an application seeking property adjustment orders pursuant to ss.90SM and 90SF(3) of the Family Law Act 1975 (Cth) (“the Act”).
The proceedings are between the applicant de facto wife Ms Bennett (“the wife”) and the respondent de facto husband Mr Crick (“the husband”).
The parties cohabited for a period of 12 ½ years. They have one child together, X, who was born in 2003. X will be turning 18 in a less than one month.
In 2016, the wife commenced property proceedings in this Court. In 2017, the matter proceeded to hearing and the parties “agreed that the sole issue to be determined by the Court” at that hearing “was whether a de facto relationship existed between the applicant and the respondent commencing in 2001 and continuing until 9th June 2014 or whether the de facto relationship ceased in February 2004” (Bennett & Crick [2017] FCCA 329 (“Bennett [2017]”)).
In 2017, the Court made a declaration pursuant to s.90RD of the Act that a de facto relationship existed between the parties, commencing from late 2001 until 9 June 2014.
The husband appealed this decision, and the Full Court of the Family Court dismissed the appeal in 2018.
What makes these proceeding unusual and quite extraordinary is that, shortly after the Court made the declaration referred to at [5] above, on 19 March 2017, the husband pointed a gun at the wife and threatened to kill her if she did not cease the property proceedings. He was arrested, charged and found guilty of fire arm offences and intimidation. He was sentenced to 5 years in gaol, with a non-parole period of 3 years and 6 months.
In 2020, the husband was released from gaol and these property proceedings were heard shortly thereafter.
The proceeding was heard on 16, 17 November 2020 and 28 January 2021. Judgment was reserved at the conclusion of the hearing.
At or around the same time that the Court notified the parties that judgment was to be delivered, the wife filed an Application in a Case, seeking to re-open the final proceeding. That application was listed before the Court on 5 October 2021 and orders were made for the filing of submissions on the application to re-open. On 18 October 2021, the parties jointly approached the Court for the making of orders by consent in respect of the application to re-open, which were made by the Court on 18 October 2021.
The Relevant Legal Principles
The overall approach to the determination of an application for property adjustment orders was set out by the High Court in Stanford v Stanford [2012] HCA 52 (“Stanford”) (see in particular [37] to [42]). The High Court recorded three fundamental propositions. The first was the need to identify existing legal and equitable interests; the second was that those interests can only be altered by a principled application of judicial discretion; and the third was that, the requirement that the court must not make any order, unless it is satisfied that in all of the circumstances it is just and equitable to make the order, requires separate consideration and should not be conflated with the statutory considerations required to be taken into consideration as to what order, if any, should be made. (Oamra & Williams [2021] FamCAFC 117 at [35]).
Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan [2014] FamCAFC 19 (‘Bevan’), Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203. Such an approach is also applicable to proceedings pursuant to the de facto relationships provisions of the Act, namely Part VIIIAB (see for example: Peters & Walker [2015] FamCA 732).
As such, once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.90SM(4)(a) to (c), the matters set out in s.90SM(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.90SF(3) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.90SM(1) of the Act (see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, but in the context of s.79).
The just and equitable requirement is “one permeating the entire process” (Bevan at [86]).
Factual Findings
The husband was born in 1961. He is presently 60 years of age.
The wife was born in 1962. She is presently 58 years old, but will turn 59 shortly.
The Full Court set out the following background which appeared to not be controversial and is said to be taken from the reasons delivered on 28 February 2017:
[16] The parties commenced a relationship in 2000. At the time the respondent owned a property at Suburb L and the appellant owned a property at Suburb D.
[17] At some stage in either mid-2001 or early 2002 the appellant moved into the Suburb L property and, at least by that time, a de facto relationship was in existence.
[18] The parties briefly separated in September 2003 but the relationship recommenced a few weeks later. As we have said, their child was born in 2003.
[19] In 2004 the parties started to sleep in separate bedrooms. A sexual relationship existed until 2004 (according to the appellant) or 2005 (according to the respondent).
[20] For the duration of the relationship, the parties did not acquire any joint property, acquired no joint liabilities and had no joint bank accounts. They each retained their respective property and were responsible for the outgoings in relation to it.
[21] The primary judge found that when the child was about seven months old, in approximately mid-2004, the appellant began transferring $300 per week into the respondent’s bank account. The respondent continued to pay all of the household bills and purchased the groceries. She cleaned, washed and cooked for the respondent, including cooking the majority of the meals for the parties. The respondent was the primary carer for the child and although the appellant worked long hours, he spent time with her when not at work, playing with her, attending birthday parties, and celebrating each birthday and Christmas with her and the respondent.
[22] In 2008 the weekly payments made by the appellant were increased to $500 per week.
[23] The primary judge found, without challenge, that throughout the period 2001 to 2014 the appellant ran his business from a room at the Suburb L property.
[24] There is no dispute that he left the Suburb L property in 2014. At that time he had commenced a relationship with another person.
(Crick & Bennett [2018] FamCAFC 68 at [16] - [24], references to primary judgment omitted).
Contributions at the Commencement of Relationship
At the commencement of the parties’ relationship, the wife was the sole registered proprietor of a property located at B Street, Suburb L (“Suburb L property”). The property was encumbered by a mortgage of approximately $110,000. At the commencement of the parties’ relationship, the wife had a motor vehicle 1, approximately $20,000 in savings and she was employed as a Manager for Company J, earning $65,000 per annum gross.
At the commencement of the parties’ relationship, the husband was the sole registered proprietor of F Street, Suburb D NSW (“Suburb D property”), which was unencumbered by a mortgage. The husband was employed as a construction worker earning approximately $40,000.00 per annum. In 2001, the husband incorporated company F.
Contributions During the Parties’ Relationship
The parties resided together at the Suburb L property for the duration of the relationship.
As noted earlier, X was born on in 2003. Prior to X’s birth, the wife accepted a redundancy from her employment, receiving $32,000 which was applied to renovations of the Suburb L property and towards the mortgage encumbering that property.
The wife returned to paid employment when X was 7 months old (Bennett [2017] at [42]).
In 2004, the husband purchased motor vehicle 2 for $19,000 which was registered in both parties’ names. In 2008, the husband purchased motor vehicle 3 for use by the family.
From 2004 until 2008, the husband paid $300 per week into the wife’s bank account. In 2009, at the time X started school, the payments increased to $500 per week. In 2016, the payments were reduced by the husband to $300 per week and then a few weeks later he commenced paying $400 per week. The payments continued until the husband was arrested in 2017.
The moneys paid by the husband to the wife on a weekly basis were used for general household expenses and for the costs associated with X’s education. The husband’s weekly contributions amounted to approximately 1/3 of the household expenses, the rest of the expenses were met by the wife.
The husband also paid for X’s iPad and iPhone, private health insurance for the family, he purchased a leather lounge for the home, a fridge, a TV and other household items. The husband also purchased a motor vehicle 2, for $17,819 which was registered and insured in both parties’ names and used by them for the benefit of the family.
The wife paid for X’s day care fees and she regularly purchased clothes for the husband. The wife paid the mortgage over the Suburb L property and the utilities and outgoings associated with the property. The wife was primarily responsible for meeting X’s needs.
The wife “cooked, cleaned and washed for the [husband] … and the family including cooking the majority of meals which the parties ate together” and she “continued to purchase the groceries throughout the relationship, to cook, clean and wash for all members of the household until the respondent left the home in 2014” (Bennett [2017] at [42] and [53]).
The husband did some, but limited, housework and some, but limited, maintenance including some gardening on the Suburb L property.
Suburb L Property
The Suburb L property was owned by the wife prior to the commencement of the parties’ relationship, and at that time it was subject to a mortgage of approximately $110,000. The wife is the sole registered proprietor of that property.
The Suburb L property is agreed by the parties to be valued at $1,100,000.
Suburb D Property
As noted earlier, the husband purchased the Suburb D property prior to the commencement of the parties’ relationship. The property was secured with a line of credit which was available to the husband for the running of his business, and was used at least in part, to purchase two trucks and a trailer for the business.
During the parties’ relationship, the property at Suburb D was an income earning property for the husband, with the rental income being used towards insurance, rates and maintenance. The husband paid all outgoings and maintenance costs for the Suburb D property, as well as the repayments for the debt secured against the property.
In 2005, the husband after selling motor vehicle 4 for some $14,000, applied those funds towards some renovation work on the Suburb D property. The husband was responsible for planning the renovations and ensuring that the works were carried out.
The wife assisted with the cleaning of the Suburb D property from time to time, and she assisted the husband in making decisions as to the renovations of the property, including in accompanying him to purchase floor tiles, bathroom fittings and new light fittings.
The Suburb D property was sold in 2014 for $422,000. After repayment of the mortgage and costs associated with the sale, and from the net proceeds of sale the husband spent approximately $7,000 on expenses for the family, and the balance of $137,000 was retained by the husband in a savings account.
The balance of the proceeds of sale of $137,000 was at separation, retained by the husband.
Suburb F Property
In 2008, the husband purchased a property at G Street, Suburb F NSW (“Suburb F property”). The purchase price was $710,000 and the property was purchased in the husband’s sole name. The Suburb F property was subject to a mortgage of $568,000 at the time of purchase. The balance of the purchase price came from the husband’s savings, which were, either in part or fully, accumulated during the parties’ relationship.
Prior to the purchase of the Suburb F property, the parties discussed buying an acreage property together, and started looking for a property that they could purchase. After the Suburb F property was purchased, the wife and her sister and brother-in-law, assisted in cleaning the house and the yard. There were renovations to the property, which the wife assisted with but the husband paid for. Following the renovations, the wife would help clean the property and when the parties had friends over at the property, the wife would buy food and drinks.
Following the purchase of the Suburb F property, the husband paid the mortgage, all of the outgoings for the property and was responsible for general maintenance and upkeep of the property.
The Suburb F property was tenanted and the husband received $300 per week in rental income. Such income was not directly applied by the husband towards the mortgage.
The husband paid $1500 per week in mortgage repayments.
As at August 2016, the balance of the Suburb F property mortgage was $360,000.
Evidence of Mr K
Despite some heavy attacks in cross-examination, Mr K was able to satisfactorily explain his assumptions and conclusions. The expert evidence of Mr K in respect of the value of the Suburb F property is accepted, and as such at the conclusion of the evidence, the Suburb F property was valued at $3,390,000.
By reason of the re-opening of the proceeding on 18 October 2021, the parties have agreed that the Suburb F is now valued at $5,500,000.
Company F
At all relevant times, Company F paid the husband $1,000 per week in director’s fees.
Over the course of the parties’ relationship, the husband grew company F from one truck to four and employed two additional truck drivers.
The business operated from a room in the Suburb L property, which was filled with filing cabinets used by the business. The husband utilised the home landline and home internet for the business. The wife participated in the running of the business by driving the husband from time to time to drop off and pick up the trucks for repairs, she assisted in the resolution of a dispute with the Telecom Ombudsman and a Telstra business debt and she did some typing for the business (Bennett [2017] at [51]).
Company F purchased two trucks over a period of time for $281,500, including a truck trailer for $93,000. The trailer was sold for $93,500. The money from the sale of the trailer was put back into the business.
The business owns a number of assets, being plant and equipment, and there is agreement between the parties about the current values of the business assets, which are noted on the balance sheet later in these Reasons for Judgment.
After the husband purchased the Suburb F property, Company F parked its trucks and stored its equipment at the property. It paid the husband $1,500 in rent per week for use of the Suburb F property.
As such, from 2008 to the end of the parties’ relationship, the husband’s income consisted of $300 per week in rent from the tenant at Suburb F, $1,500 per week in rent from Company F and $1,000 per week in director’s fees from Company F.
Husband’s Superannuation
The husband had superannuation with super fund M, and contributions were made by companies he worked for, including by Company F. As at 30 June 2015, the husband had a closing balance of $220,197. No contributions have been made after March 2017.
In his financial statement filed 16 April 2019, the husband disclosed that he had superannuation with super fund M valued at $200,000, although an up to date statement was requested by the husband shortly thereafter.
The parties agree that in February 2020, the husband withdrew $342,487 from his super fund M superannuation. The husband holds no more superannuation.
Wife’s Superannuation
In her Financial Statement filed 28 May 2019, the wife disclosed that she had a superannuation balance of $262,000. As at 26 September 2019, the value of the wife’s superannuation interest was $287,201. At least part of that superannuation had accumulated during the parties’ relationship. The parties agree that at the time of hearing, the wife had $215,850 in superannuation interests.
Contributions Post Separation
After the parties’ separation, the husband reduced the weekly repayments on the mortgage for the Suburb F property from $1,500 to $750 per week.
In 2016, the husband purchased a motor vehicle 4 for $13,000, which he gave to the wife for her use. At this time, the husband sold the motor vehicle 2 for approximately $1,000.
After separation until 19 March 2017 the respondent spent time with X on Wednesday afternoons and once every second or third weekend.
The Threat to Kill and Contributions Thereafter
In 2017, the husband returned X to the wife’s home after spending time with her. The wife’s evidence, which is unchallenged and which the Court accepts, as to what happened next is as follows:
He called me into the front bedroom and said words to the effect: “You have to stop the fucking case.” I sat on the bed. He was red in the face and very angry. I said: “Do you hate me that much that you want to kill me.” He turned around and pulled a gun from his black bag and picked up another bag with money. He was leaning over me, and held the gun up and pointed it at my head right between my eyes, with the barrel of the gun 2 to 3 inches from my head. He said words to the effect: “I will fucking kill you”. He then threw a bundle of money on the bed and said: “if you continue with this court case I am going to have to sell my house to give you the fucking money. You have to put a stop to it. You are going to ring up your fucking solicitor and stop this and if you don’t, this is for someone to kill you.” He picked up one of the bundles of money he had thrown on the bed and shoved it in my face. He then placed that bundle on the bed and picked up the next one and said: “This is for X”. He put that bundle down and picked up another one and said: “This is for a member of your family. I am going to fucking kill you and if you call the police there is going to be some poor police bastard I am going to kill or it is going to be me”.
He said “I am going to fucking kill you”. I was begging him, saying: “Please don’t, please Mr Crick, X is in the other room. Please don’t. Think of X”. The he fumbled with the gun and then there was a bang as the gun went off. I could see a small amount of smoke on the mattress where he had shot.
He then ran around and picked up all of the money and grabbed his bag and opened the door of the bedroom to leave. X was standing right outside the bedroom door. He said: “I’ve got to go bub” and then he left. X said to me: “What was that noise? It sounded like a gunshot.” I said: “Your father had a gun.” She went to fall to her knees but picked herself up and went to call the police and her aunty and uncle. I tried to talk to the police, I had difficulty talking.
(Affidavit of Ms Bennett affirmed 3 December 2019 at [40]-[42])
A final apprehended domestic violence order naming the husband as the defendant and the wife and X as the protected persons remains in place until 3 December 2021.
Following 2017, the wife has been the sole carer of the child, X. The husband has not communicated nor spent any time with his daughter since the incident in 2017, nor has he provided the wife with any financial assistance for X, despite having significant amounts of money available to him.
The wife and X remain living in the Suburb L property. The mortgage was paid out in full by the wife in 2019. The wife remains responsible for all outgoings, maintenance and repairs for this property.
During the time the husband was incarcerated it appears that the Suburb F property did not earn any income, although the husband’s brother Mr L Crick and his Company F remained, and were left to waste, at the Company F property.
Although the husband had given his brother authority to deal with his assets, he did not direct him or request for him to sell any of the company’s plant and equipment. At the time of final hearing, none of the trucks were in roadworthy condition.
The husband has not recommenced operation of Company F since being released from custody. While incarcerated the husband lost all contracts and his trucks were not maintained.
Inheritance Received by the Wife
In February or March 2019, the wife received the sum of $399,090 being her share of her late father’s estate. From those moneys, the wife has paid off the mortgage on the Suburb L property, she has paid legal fees and costs associated with X’s education.
The wife also inherited a one fifth share of a property in Queensland.
The parties agree that the assets received by the wife as a result of the inheritance should form a second pool of assets, to which the husband has not made any contributions.
Post separation expenditure by husband and the husband’s non-disclosure
The husband’s evidence about the source of funds for the payment of his legal fees, his financial position and spending post separation is less than satisfactory.
Both parties are obliged to make full and substantive disclosure of their financial affairs (Black & Kellner [1992] FamCA 2). The purpose of full and frank disclosure is “the need for each party to understand the financial position of the other party, which is at the very heart of cases concerning property” (In the Marriage of Briese[1985] FamCA 23, approved by the Full Court in Oriolo v Oriolo [1985] FamCA 54).
Where there is clear evidence of non-disclosure, the Court should not be unduly cautious about making findings in favour of the innocent party (In the Marriage of Weir (1992) 16 FamLR 154).
On 19 March 2017, at the time he threatened to kill the wife, the husband had brought to the Suburb L property bags filled with money. The husband’s evidence is that he had at that point in time $130,000 in cash with him, which was later used in its entirety to pay his legal fees associated with the criminal proceedings. This is in contradiction to his other evidence as to how the legal fees were paid for and the amount of the legal fees he paid associated with the criminal proceedings.
It was only in January 2021, after the matter had been adjourned part heard, that with the Court’s leave, the husband filed a further affidavit which set out the legal fees he had paid. Even with such evidence, it is not clear how much money the husband actually had access to, what it was spent on and how much of it remains.
At separation, the husband had $137,000 in savings, being the balance of the net proceeds of sale of the Suburb D Property.
The husband’s evidence (affidavit of 8 April 2019) is that to April 2019, he had disposed of $200,000 of cash moneys for the cost of both criminal and civil proceedings. In cross-examination, the husband agreed that he had approximately $130,000 in the bank, being the net proceeds of the Suburb D property, and when asked where the balance of $70,000 came from he said that he redrew on his home loan to pay the legal fees. The husband told the Court that he was in advance in his mortgage repayments and that he withdrew $190,000 from his mortgage and that this money was used solely for the purpose of legal fees. This oral evidence does not appear to be corroborated by any other evidence in the husband’s case.
In February 2020, the husband “cashed out” his superannuation and received $342,487. From those moneys, the husband said in cross-examination that he paid $30,000 in legal fees, which is different to his evidence in chief.
According to his affidavit (filed 9 November 2020) the husband transferred the entirety of the funds from Super fund M into an account owned by his brother, Mr L Crick. He instructed Mr L Crick to pay the mortgage and utilities which were owing at the time:
(a)On 25 February 2020, the husband instructed his brother to transfer $5,000 to his solicitor’s trust account;
(b)On 18 September 2020, the husband opened up a savings account (ending in 273) and thereafter instructed his brother to transfer $190,000 from the Super fund M moneys into the husband’s savings account. From that $190,000, $150,000 was paid into the Suburb F property home loan. It appears from Exhibit 4 that the transfer of $150,000 occurred on 6 November 2020;
(c)As at 6 November 2020, the balance of the husband’s savings account (ending in 73) had a balance of $41,837, his savings account ending in 915 had $8,776 and his mortgage had a balance owing of $215,850.
On 26 October 2020, the husband transferred a further $10,000 to his solicitors’ trust account. It is not clear on the evidence which account these funds came from, but the Court infers that it came from the Super fund M moneys.
Noting the above evidence, the Court finds that the $342,487 has been disposed of by the husband in the following manner:
(a)$15,000 on account of legal fees;
(b)$150,000 paid towards the Suburb F property mortgage (and as such reducing the mortgage balance to $195,850); and
(c)$40,000 retained in the husband’s bank account ending in ...73;
(d)Thus leaving $137,487 unaccounted for.
While the husband says that he is organising for his brother to transfer the balance of the funds held by him into the husband’s account including a payment of $30,000 to the husband’s solicitors, there is no evidence of such actual transfer or that the solicitor’s costs which have been paid did in fact come from those moneys.
The husband further says in his evidence that he uses the moneys in his accounts to meet mortgage repayments and pay for usual personal and living expenses.
As at 13 November 2020, the husband had available for redraw in his home loan $177,454 and the balance owing was $195,850 (index item J and page 11 of Exhibit 4). It is not clear on the evidence why and how the difference in balance between 6 November 2020 and 13 November 2020 arose. According to the joint balance sheet of the parties, there is agreement that the balance of the mortgage account is $215,850 (which was the balance as at 6 November 2020). Noting that Exhibit 4 is the husband’s evidence, the Court finds that the husband’s liability in respect of the Suburb F property mortgage is $195,850 rather than $215,850.
As such, the husband’s evidence as at 17 November 2020 in summary is that:
(a)As at the date of separation he had $137,000 in a savings account being the balance of the net proceeds of the Suburb D property;
(b)As at March 2017, he had $130,000 in cash (in bags), and that the entirety of this amount was used to pay his legal fees for the criminal proceedings;
(c)At an unspecified time (but presumably prior to April 2019) he had withdrawn $190,000 from his mortgage secured over the Suburb F property;
(d)By April 2019, he had spent $200,000 in legal fees and such amounts were paid from “cash monies”; and
(e)It could be correct that he had spent at least $350,000 in legal fees in total.
As at the time of the filing of his Financial Statement on 16 April 2019, the balance of the Suburb F property mortgage was $390,000. As at 13 November 2020, the balance was $195,850, with an influx of $150,000 from the Super fund M moneys on 6 November 2020.
Apart from the husband’s oral evidence, there is no other evidence of $190,000 being drawn down on his mortgage and utilised towards legal fees prior to or in April 2019. It appears that the husband was mistaken about this in his evidence. It also appears that the husband was mistaken when he agreed that it could be correct that he had spent at least $350,000 in legal fees.
Further to his affidavit filed on 14 January 2021, the entirety of the legal fees paid by the husband are as follows:
(a)With respect to the criminal proceedings:
(i)To Law Firm T Criminal Defence Lawyers $7,350;
(ii)To U Lawyers: $17,672;
(b)With respect to the family law proceedings:
(i)To Broun Abrahams Burreket Family Lawyers: $91,913
(ii)To Grover Law: $81,180;
(iii)Property valuation: $13,200;
(iv)Wife’s costs of the appeal: $8,250.
(the figures have been rounded down to the nearest dollar)
Therefore, the total legal costs and disbursements paid by the husband to date of hearing are $219,565.
Considering the totality of the husband’s evidence, the Court finds that:
(a)The husband had $137,000 in savings at separation being the net proceeds of sale of the Suburb D property;
(b)The husband had a further $130,000 in cash at March 2017;
(c)The husband received $342,487 from his Super fund M superannuation, $150,000 of which was used to reduce the mortgage over the Suburb F property and $40,000 of which was retained by the husband in savings as at November 2020 – thus leaving a balance of $152,487; and
(d)The husband has spent $219,565 in legal costs and disbursements to date.
As such, the husband has not accounted for $199,992 (being the total of $137,000, plus $130,000, plus $152,487, less $219,565).
Determination
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the joint use of property by the parties. The requirement is so satisfied in this instance.
Add-Backs
In Trevi & Trevi [2018] FamCAFC 173 (“Trevi”) at [27] – [30] the Full Court of the Family Court held as follows:
27. The Full Court held in Omacini and Omacini that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or want on, negligent, or reckless dissipation of assets.
28. However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
29. The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
30. Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
(citations omitted)
In accordance with the above, the moneys expended by the husband on legal fees in the amount of $219,565 will be notionally added back to the pool.
Furthermore, the moneys which the Court found that the husband has not accounted for are a premature distribution of matrimonial assets, and as such the amount of $199,992 will also be notionally added back to the pool.
If the Court is wrong, and the husband was not mistaken about spending at least $350,000 in legal fees (notwithstanding only $219,565 is explained in his January 2021 affidavit), then the entirety of the $350,000 would have been added back. Ultimately, the difference of $140,000 whether being payment of legal fees or a premature distribution of matrimonial assets (forming part of the unaccounted for $199,992) still forms part of the moneys added back and has only been counted once.
The wife has paid $62,747 in legal costs and disbursements. It appears from the joint balance sheet that there is agreement that these moneys should be added back. The evidence as to the source of those funds is not entirely clear, but it appears that the funds came from the moneys the wife inherited.
The wife says in her evidence that she used the inheritance to pay her legal fees. As such, the money will be added back to pool 2 rather than pool 1.
The Pool
In Stanford, the High Court emphasised as fundamental that a consideration of whether it is just and equitable to make a property settlement order begins by “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property” (Trevi at [46]).
In the circumstances, it is appropriate to adopt a 2 pool approach, made up of pool 1 to which both parties contributed, and pool 2 to which the husband made no direct or indirect contributions.
Company F has not been valued, however the value of the assets it holds have been agreed to. Those assets are noted as being on the husband’s side of the ledger. He is the sole director and shareholder of the company, and has control over all of its assets.
At the time of final hearing, the existing legal and equitable interests of the parties in property are as follows:
Pool 1
Item Owner Value B Street Suburb L Wife $ 1,100,000 Motor vehicle 4 Wife $ 13,900 Super fund O Wife $ 284,633 Bank N A/C …00 Wife $ 1,083 G Street, Suburb F Husband $ 5,500,000 2007 Motor vehicle 5 Husband $24,000 2008 Motor vehicle 6 Husband $12,000 2014 Motor vehicle 7 Husband $35,000 Motor vehicle 3 Husband $1,200 Bobcat Husband $10,000 Motor vehicle 8 Husband $950 Motorcycle trailer, car&box trailer, tractor mower Husband $5,000 Truck 1 Husband $20,000 Truck 2 Husband $20,000 Prime mover with sleeper Husband $ 6,000 Prime mover with sleeper cabin Husband $ 13,500 3 shipping containers Husband $ 10,000 Tipping Trailer Husband $ 15,000 Westpac account (ending in..73) Husband $ 41,837 Westpac account (ending in ..15) Husband $ 8,776 Add back legal fees and disbursements paid Husband $ 219,565 Add back unaccounted premature distribution Husband $ 199,992 Mortgage to westpac bank Husband ($ 195,850) TOTAL: $ 7,346,586 Pool 2
Item Owner Value P Road, Suburb R Wife $65,000 Bank S A/C ..60 Wife $156,200 Add back legal fees and disbursements Wife $ 62,747 TOTAL: $ 283,947 Financial and Non-Financial Contributions
The parties co-habited for 12 ½ years.
The wife was the majority homemaker and parent during the parties’ relationship. Post separation, for a period of some 3 years, the wife remained responsible for most of the contributions as parent. After 19 March 2017, the wife was the sole parent and had the sole care for the parties’ only child, providing for all of her financial, physical and emotional needs.
The Suburb L property was home to the parties for the duration of the relationship, and the husband’s contribution to its maintenance and upkeep were not significant. The Suburb L property provided accommodation for the husband’s business. The living and working arrangement of the parties allowed the husband the opportunity to meet the outgoings on the Suburb D property and to accumulate funds to purchase the Suburb F property, and then continue to meet the mortgage repayments for that property. The wife made some direct contributions towards Company F.
From his income of some $1,000 per week and later $2,800 per week, the husband contributed only $300-$500 per week in regular payments towards household expenses. The balance of some $1,300 to $1,100 per week in weekly expenses for the family was met exclusively by the wife. As such, the wife made the majority of the financial contributions for the welfare of the family. The wife also made the majority, if not all, of the financial contributions towards the conservation and improvement of the Suburb L property.
The wife made some minor non-financial contributions to the upkeep and maintenance of the Suburb F property and the Suburb D property. She also made indirect contributions towards the acquisition of those properties.
The husband made the vast majority of the financial and non-financial contributions towards the acquisition, conservation and improvements of the Suburb F property as well as the Suburb D property.
Kennon Claim
The family violence and the ongoing impact of the violence is raised by the wife in the context of a Kennon & Kennon (1997) FLC 92-757 (“Kennon”) claim. The wife urges the Court to make a finding that her contributions were made more onerous by the family violence which was visited upon her at the hands of the husband.
In order to establish that an adjustment ought to be made for these reasons, the wife has the onus to not only establish facts to the requisite standard of the course of conduct which is alleged and required to make such a case, but also to demonstrate that such conduct has had a significant adverse impact upon her contributions or made her contributions more arduous than they ought to have been (Kennon).
The Court finds established on the evidence, that the wife’s contributions post March 2017 to the date of hearing, were made significantly more arduous by reason of the violence perpetrated by the husband. Some of that evidence is referred to later in these Reasons at [118]-[123]. The difficulties which the wife faced are consequent upon the husband’s conduct, and they are twofold: that is they are difficulties she faced after March 2017, and are difficulties into the future relevant for the purposes of s.90SF(3).
Assessment as to Contributions
The Court assesses the wife’s contributions to Pool 1 at 54% and the husband’s contributions to Pool 1 at 46%.
As noted earlier the husband has made no contributions to the assets forming Pool 2.
Section 90SF(3) Factors
The husband
The husband is 60 years old.
The husband, whilst incarcerated, was diagnosed and treated for mental health issues. He is presently on medication for depression, cholesterol and blood pressure.
The husband is unemployed and Company F is not earning any income. The husband has some limited capacity to earn an income.
The husband has never been assessed to pay child support for X and does not pay any child support. The wife has been entirely responsible for the costs associated with raising X post the parties’ separation.
The wife
The wife is almost 59 years old.
The wife has been diagnosed with Post Traumatic Stress Disorder (‘PTSD’) and Generalised Anxiety Disorder (‘anxiety’) by her treating psychologist, Dr S. In an expert report dated 17 January 2020, Dr S attributes the onset of the wife’s PTSD and anxiety symptoms directly to the incident in which she was threatened by the husband in 2017.
Dr S explains that the wife experiences distressing thoughts about the incident as well as about events indirectly related to the incident. As a result, the wife tries to avoid situations or activities that remind her of the incident.
More generally, the wife also experiences memory lapses, difficulties with planning and decision making, difficulties with concentration and attention, sleep problems, hypervigilance, hyperventilation, dissociation, fatigue and persistent worry. The wife has experienced diminished capacity to manage personal affairs and carry out daily life tasks such as remembering to attend scheduled medical appointments. Dr S is of the view that these symptoms are directly linked to her PTSD.
The wife currently works on a part-time basis. She reports ongoing difficulty managing certain work tasks as a result of her anxiety and PTSD and therefore cannot manage a full-time workload as she had previously. The wife is earning $45,539 gross per annum.
Dr S is of the view that her symptoms will persist until she receives treatment for PTSD. In a further updated expert report dated 11 November 2020, Dr S informs the Court that events which trigger the wife’s symptoms, including on-going court events, contribute to the wife’s anxiety and that the treatment for her PTSD cannot commence until these events end. This was also affirmed in oral evidence. Once treatment does commence Dr S estimates that the wife will require “maybe two years of weekly or fortnightly consultations”.
According to Dr S, X’s contact with the husband, even indirect contact through other relatives, or the possibility of contact is also a trigger for the wife’s PTSD. The wife accepts that whenever and if ever X is ready, a relationship between X and the husband should resume, if that is X’s wishes. In light of this, it appears likely that the husband will to some extent, if only indirectly, be an on-going part of the wife’s life and this will have a prolonged effect on her capacity to recover from her PTSD.
While X is almost 18 years old, the wife will remain solely financially responsible for her until X reaches majority.
There will thus be a further adjustment in the wife’s favour of 10%.
Overall Adjustment
Based on the findings made as to contributions and further adjustment, the Court has assessed that there should be a 64% adjustment of Pool 1 in favour of the wife. That is, the wife is to receive assets to the value of $4,701,815 and the husband $2,644,771 from Pool 1.
As such, the wife takes:
Item Owner Value B Street Suburb L Wife $ 1,100,000 Motor vehicle 4 Wife $ 13,900 Super fund O Wife $ 284,633 Bank S A/C ..00 Wife $ 1,083 Payment from husband $ 3,302,199 TOTAL: $ 4,701,815
As such, the husband takes:
G Street, Suburb F Husband $ 5,500,000 Motor vehicle 5 Husband $24,000 Motor vehicle 6 Husband $12,000 Motor vehicle 7 Husband $35,000 Motor vehicle 3 Husband $1,200 Bobcat Husband $10,000 Motor vehicle 8 Husband $950 Motorcycle trailer, car&box trailer, tractor mower Husband $5,000 Truck 1 Husband $20,000 Truck 2 Husband $20,000 Prime mover with sleeper Husband $ 6,000 Prime mover with sleeper cabin Husband $ 13,500 3 shipping containers Husband $ 10,000 Tipping Trailer Husband $ 15,000 Westpac Classic plus account (ending in ..73) Husband $ 41,837 Westpac Choice basic account (ending in ..15) Husband $ 8,776 Add back legal fees and disbursements paid Husband $ 219,565 Add back unaccounted premature distribution Husband $ 199,992 Mortgage to westpac bank Husband ($ 195,850) Less Payment to Wife Husband ($ 3,302,199) TOTAL: $ 2,644,771
The wife will retain her home, where she and X remain living. She will receive a significant cash adjustment from the husband.
The wife will also retain all of the assets in Pool 2:
Item Owner Value P Road Suburb R Wife $65,000 Bank S A/C ..60 Wife $156,200 Add back legal fees and disbursements Wife $ 62,747 TOTAL: $ 283,947
The husband has already indicated to the Court that in order to pay the wife even the sum of money he was proposing (namely $300,000) by way of property adjustment orders, the Suburb F property would need to be sold. Once the property is sold, and the above adjustments are made, the husband will have a significant amount of money to house and maintain himself adequately.
In all of the circumstances, the result is just and equitable.
Wife’s Cost Application
The wife moves the court for an order that the husband pay the costs incurred by her defending the hearing on the threshold issues and additional documents filed out of time.
Relevant Legal Principles Relating to Costs in Family Law Proceedings
The principles in respect of costs orders in family law proceedings are well known. The starting position with respect to costs, as set out in s.117 of the Act is that, subject to sub-section 117(2), each party to proceedings under the Act shall bear his or her own costs.
The discretion to award costs is a broad discretion (see for example Collins & Collins [1985] FamCA 15). No one factor under s.117(2A) prevails over any other factor. It is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion (Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157 at [24] (“Medlon”).
The High Court held in Penfold & Penfold [1980] HCA 4 (“Penfold”) that it is necessary for the Court to make a finding of justifying circumstances as an essential preliminary to the making of an order for costs. The Court is not required to specify the circumstances which justify the making of such an order.
As long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the applicant needs to establish for an order for costs. It is not the law that a costs order can only be made in what has been described as a “clear case” (Penfold; Jensen &Jensen [1982] FamCA 57).
Any one of the factors in s.117(2A) may be the sole foundation for an order for costs PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158 at [41]; Renald & Renald (Costs) [2018] FamCAFC 4 at [11] (“Renald”)). Nevertheless, the relevant matters in s.117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs” (I & I (No.2) [1995] FamCA 80; Renald at [11])
In Latoudis v Casey [1990] HCA 59 (“Latoudis”) the High Court stated as follows:
… in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of an unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.
(Referred to in the context of family law proceedings by Judge Kemp in Coggan & Coggan [2012] FMCAfam 984 at [17])
In determining what order, if any, should be made under s.117(2) the Court must have regard to the prescriptive but non-exhaustive list of considerations in sub-section (2A).
The Court has the power to order costs on an indemnity basis (Kohan & Kohan [1992] FamCA 116 (“Kohan”); Latoudis). An order for indemnity costs in proceedings to which s 117 applies is exceptional (Kohan; Stasiuk & Guild [2021] FamCAFC 62).
The principles in respect of indemnity costs orders are also well known (see generally Sheppard J in Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801), relevantly:
(e)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] FCA 364 (“Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd.”).
(f)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd.)
(g)Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd [1991] FCA 225).
(h)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)).
(i)An imprudent refusal of an offer to compromise.
(Medlon at [28] referring to Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84,660)
It is unnecessary to spell out detailed reasons for decisions in costs matters (Greedy and Greedy [1982] FamCA 41; Renald at [12]).
Determination as to Costs
The wife seeks an order that:
(a)The husband pay her costs of the hearing in respect of the jurisdictional issue in the amount of $15,477 calculated in accordance with the relevant schedule of the Court rules which applied at the time the application was made. The costs are particularised in the wife’s affidavit of 24 March 2017, at Annexure “B”; and
(b)The husband pay her costs of and incidental to an Application in a Case, which the husband had filed but then abandoned at the hearing on 1 February 2017. The wife claims an amount of $3,401, as particularised at Annexure “C” of her affidavit.
The parties’ financial circumstances are discussed at various points in these Reasons for Judgment.
The husband was wholly unsuccessful in respect of the threshold issue, wherein he sought that the wife’ Initiating Application be dismissed for want of jurisdiction. The hearing on the threshold issue was required as a result of the husband denying that the parties cohabited for a period of 12 ½ years, and that such relationship concluded in June 2014, rather contending that the parties separated in February 2004.
The husband’s criminal conduct resulting in his incarceration, his unsuccessful appeal of the threshold decision and his lack of financial support for the parties’ only child, have cumulatively had a detrimental effect and have caused the wife ongoing financial and emotional hardship. These are also matters which the Court considers relevant in its consideration of what costs order, if any, should be made.
There are circumstances justifying the making of a costs orders.
The Court has a wide discretion in respect of costs, including how costs are assessed. The amount sought by the wife in accordance with the relevant scale at the time the costs were incurred, is in all of the circumstances, an appropriate amount. Not only is it just that the husband pay the wife’s costs of the threshold hearing, it is also appropriate and just that he pay the wife’s costs thrown away by the filing of the Application in a Case which was abandoned by the husband at the last hour.
An order that the husband pay the wife’s costs in the amount of $19,038 will therefore be made.
Conclusion
Orders as set out at the forefront of these Reasons are therefore made.
I certify that the preceding one hundred and fifty two (152) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Dated: 21 October 2021
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