Bodilly & Hand (No. 2) - [2012] FamCA 734

FAMILY COURT OF AUSTRALIA

BODILLY & HAND (NO. 2)

[2012] FamCA 734

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks an increase in maintenance – Where the wife’s heath has significantly deteriorated – Where the husband conceded he has the capacity to pay the maintenance sought by the wife – Extent of the needs of the wife – Where the wife has established that her circumstances have changed to the extent that would justify an increase

FAMILY LAW – COSTS – Where the wife seeks an order that the husband pay her costs on a solicitor client basis – Where the husband opposes a costs order – Where neither party was wholly unsuccessful – Where there were no written offers of settlement – Where the financial disparity between the parties and the husband’s conduct in the proceedings justify an award being made – Where the wife should be left with some obligation for costs.

Family Law Act 1975 (Cth) Sections 72, 74, 75, 80, 83 & 117
Family Law Rules 2004 – Rule 19.18

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175;
McGregor & McGregor [2012] FamCAFC 69;

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;
BK & SK [2005] FamCA 1222;
Stephens & Stephens and Anor (Enforcement) (Costs) [2010] FamCAFC 172;
Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225;
In the Marriage of Kohan (1992) 16 Fam LR 245;
Pencious & Pencious [2012] FamCA 12.

APPLICANT:

Ms Bodilly

RESPONDENT:

Mr Hand

FILE NUMBER:

MLC

10737

2009

DATE DELIVERED:

27 August 2012

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Loughnan J

PLACE HEARD:

Parramatta

HEARING DATE:

6, 7 & 8 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:	Mr St John SC with Ms Rivers
SOLICITOR FOR THE APPLICANT:	Tolhurst Druce & Emmerson Solicitors

COUNSEL FOR THE RESPONDENT HUSBAND:	Mr Ackman QC with Ms Hannan
SOLICITOR FOR THE RESPONDENT	Kenna Teasdale Lawyers

Orders

1.From the date of these orders to 24 September 2012 the husband shall pay to the wife as she may direct by way of periodic maintenance the weekly sum of $3,625.
2.From 25 September 2012 the rate of maintenance payable by the husband to the wife shall reduce to $3,323 per week.
3.Unless the wife advises the husband otherwise in writing, the first payment of periodic maintenance shall be made within 7 days and payments shall be made weekly thereafter.
4.The husband shall cause the sum paid by him pursuant to order 2 to be increased annually in accordance with any positive variation in the Consumer Price Index for Sydney published by the Australian Statistician for the preceding financial year with the first such variation as and from 1 July 2013 and adjustments as and from 1 July in each succeeding year.
5.Within 28 days the husband shall pay to the wife as she may direct the sum of $527,927.25, representing:
a)$76,784 by way of backdated periodic maintenance;
b)$120,000.00 by way lump sum maintenance; and
c)$331,188.25 by way of assessed costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bodilly & Hand 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 SYDNEY

FILE NUMBER:

Ms Bodilly

Applicant

And

Mr Hand

Respondent

REASONS FOR JUDGMENT

Ms Bodilly and Ms Hand were married for 15 years and separated on 4 November 1998. Some years before their wedding Ms Bodilly was diagnosed with multiple sclerosis. In 2000 they made a property settlement and also agreed to a maintenance order in favour of Ms Bodilly. Ms Bodilly now seeks and Mr Hand does not oppose, an increase in maintenance. The issue before the Court is as to the extent of that increase.
The parties are divorced and the husband has remarried but for ease of reference I will refer to the parties as the wife and husband.
Applications
The wife seeks orders in terms of her Amended Initiating Application filed 26 June 2012. She seeks:
1.That the Husband pay to the Wife for her maintenance the weekly sum of $3,000.00 as and from the date of filing her Initiating Application to 31 January 2012.
2.That the Husband pay to the Wife for her maintenance the weekly sum of $4,000 as and from 1 February 2012.
3.That the sum paid by the Husband pursuant to paragraph 2 of these orders be increased annually in accordance with any positive variation in the Consumer Price Index for Sydney published by the Australian Statistician for the preceding financial year with the first such variation as and from 1 July 2013 and as and from 1 July in each succeeding year.
4.That within 30 days the Husband pay $120,000.00 to the Wife by way of lump sum maintenance.
5.That the Husband pay the Wife’s costs and disbursements, including all counsel fees (inclusive of necessary travel expenses), expenses of obtaining evidence from her doctor, occupational therapist, neuropsychiatrist, accountant and other necessary experts.
6.Such further order or orders as the Court deems appropriate.
In accordance with the husband’s document titled Summary of Wife’s Expenditure handed up on the last day of the hearing, the husband seeks the following orders:
·That from 1 December 2009 to 18 August 2010, the husband increase his payment of periodic maintenance to the wife to $1,134 per week (from $500 per week)
·That from September 2010 until 5 October 2011 the spousal maintenance payable by the Husband remain at $1,500 per week as ordered by Senior Registrar FitzGibbon.
·That as and from 9 July 2012, the Husband pay periodic maintenance to the Wife in the sum of $2,638 per week in lieu of $1,500 per week
In accordance with his Further Amended Response to Initiating Application filed on 30 July 2012 the husband also seeks that the ongoing amount of periodic spouse maintenance “be adjusted annually on 1 July commencing in 2013 in accordance with variations of the Consumer Price Index published by the Commonwealth Statistician for Sydney by comparison with the Consumer Price Index as it stands on 30 June immediately preceding the date of variation as compared with the same Index as at the date 12 months prior thereto.”
I understand that the husband otherwise seeks that the wife’s application be dismissed.

The Hearing

These are proceedings out of the Melbourne Registry which were listed for hearing in Parramatta so as to facilitate the wife’s attendance at Court. The proceedings were the subject of trial directions made by Bennett J and by arrangement with Parramatta Registry, the matter was listed for three days commencing 12 August 2012. After 30 July 2012, when the final trial directions were made, concern was expressed on behalf of the parties that the trial might not be contained within 3 days. The matter was listed before me on 3 August 2012 and I was told on behalf of the wife that if the husband was given leave to rely on late filed affidavits there would not only be a number of additional witnesses but significant time would be needed by the wife’s lawyers to take instructions from the wife in relation to the new evidence. I told the parties that an additional day would be available if needed and declined to abandon the hearing. The question of the admission of affidavits into evidence was left to the first morning of the trial.
The trial commenced on 6 August 2012 and judgment was reserved after oral submissions on 8 August 2012.

Documents read

The wife relied on the following documents:
·Wife’s Initiating Application filed 1 December 2009;
·Wife’s Amended Initiating Application filed 10 October 2011;
·Wife’s Amended Initiating Application filed 26 June 2012;
·Affidavit of the Wife sworn 30 November 2009;
·Affidavit of the Wife sworn 19 August 2010;
·Affidavit of the Wife sworn 6 October 2011;
·Affidavit of the Wife (Answers to Specific Questions) sworn 13 April 2012;
·Affidavit of the Wife sworn 9 July 2012;
·Affidavit of the Wife (Answers to Specific Questions) sworn 26 July 2012;
·Affidavit of Mr F filed 6 October 2011;
·Affidavit of Mr F sworn 6 July 2012;
·Affidavit of Ms O sworn 17 August 2010;
·Affidavit of Ms O filed 14 September 2011;
·Affidavit of Ms O sworn 5 July 2012;
·Affidavit of Ms G Filed 19 September 2011;
·Affidavit of Professor K filed 20 August 2010;
·Affidavit of Professor K filed 4 October 2011;
·Affidavit of Professor K sworn 10 July 2012;
·Financial Statement of the Wife sworn 30 November 2009;
·Financial Statement of the Wife sworn 19 August 2010;
·Financial Statement of the Wife sworn 6 October 2011;
·Financial Statement of the Wife sworn 9 July 2012;
·Order of Registrar Raby of Family Court of Australia at Melbourne on 19 December 2000;
·Order of Senior Registrar FitzGibbon of Family Court of Australia at Melbourne on 27 October 2011;
·Combined Expert Witness Conference Report prepared by Ms G and Dr M (undated);
·Joint report of Professor N and Professor K (undated but following conference on 24 January 2012);
·Joint Report of Ms O and Ms R dated 27 January 2012; and
·Joint Report of Ms O and Ms R dated 25 July 2012.
The husband relied on the following documents:
·Affidavit of the Husband filed 17 February 2010;
·Affidavit of the Husband filed 13 August 2010;
·Affidavit of Dr M sworn 7 December 2011;
·Affidavit of the Husband filed 13 January 2012;
·Joint expert report of Professor N and Professor K;
·Husband’s Requests to Wife to answer specific questions served 2 March 2012;
·Husband’s Request to Wife to answer specific questions served 13 July 2012;
·Financial Statement of the Husband filed 20 July 2012;
·Affidavit of Ms R filed 20 July 2012;
·Report from Joint Experts Conference (Occupational Therapists) dated 27 January 2012;
·Report from Joint Experts (Occupational Therapists) dated 27 July 2012;
·Husband’s Request to Wife to answer specific questions dated 30 July 2012;
·Further Amended Response filed by Husband 30 July 2012;
·Affidavit of Husband filed 30 July 2012;
·Affidavit of Mr H filed 30 July 2012; and
·Affidavit of Ms S filed 31 July 2012.
On the objection of the wife’s counsel I excluded part of the affidavit of Mr H sworn 27 July 2012. I made that ruling at the commencement of the trial and said that I would provide reasons for doing so in the final judgment. What follows is those reasons.
Mr H is a Forensic Consultant and a partner in a firm of Chartered Accountants. His affidavit was one of four affidavits filed late in the proceedings on behalf of the husband. Ultimately, no objection was taken to the other three affidavits or to the balance of Mr H’s affidavit. Mr H’s affidavit was filed by the leave of Bennett J on 30 July 2012 but the question of the receipt of the affidavit into evidence was reserved to me.
The objection made on behalf of the wife was to paragraphs 5, 6 & 7 together with appendix 5 and sections 1 & 2 of the report attached to Mr H’s affidavit. Both senior counsel referred to the offending material as an “audit”. The audit related to the wife’s expenses over two periods – 1 December 2009 to 31 January 2012; and 1 February 2012 to 30 June 2012.
The submissions in aid of the objection were primarily to the effect that the wife could not meet the parts of the affidavit objected to due to the time it would take for her lawyers to take instructions on that material. That time was said to be greater than would otherwise be the case because of the wife’s physical and cognitive impairment. It was submitted that it would not be an adequate remedy that the hearing be adjourned to allow her to address the material because the damage caused to her could not be fully addressed by a costs order. I was referred to the fact that the proceedings had been on foot since late 2009 and to evidence of the stress experienced by the wife associated with the proceedings.
It was submitted for the wife that if not understood before that date, the husband and his lawyers knew from October 2011 that the wife’s claim for increased maintenance was pressed as from the date of her original 2009 application. Thus if he proposed to conduct an audit of the wife’s records, the husband was on notice at least from October 2011, as to the period involved. It was submitted that there had been no complaint communicated to the wife’s lawyers about her disclosure and indeed, when requests were made late in the piece for further records – for example in late June 2012, the wife provided the requested documents in a timely way. It was submitted that no notice was given to the wife of the husband’s intention to rely on an expert’s evidence on this topic until a week before the trial and in those circumstances it was unfair to admit that part of the affidavit that the wife simply could not meet. A letter dated 13 July 2012 that referred to financial records being required for examination by accountants, referred to the potential outcome being questions to be put to the wife rather than any suggestion that a further expert would be called to adduce evidence of an audit of the wife’s claims by a forensic accountant.
It was submitted on behalf of the husband that it would be a denial of natural justice to exclude the part complained of. In a case where the husband was precluded from testing the wife’s evidence of her expenditure by cross-examination, it was submitted that the husband needed to be able to challenge the wife’s case about her expenses. It was submitted that the report could not be provided earlier as the expert required the wife’s records to undertake his task.
A number of orders were made for the parties to file their evidence. For example, the husband was ordered to have his evidence filed by 12 noon on 13 January 2012. On 25 June 2012 the trial was fixed for hearing over three days at Parramatta commencing on 6 August 2012. The wife was ordered to file any further evidence by 6 July 2012 and the husband was ordered to file and serve any affidavits in reply by 20 July 2012. On that same date the parties were ordered to cause their experts to confer and to produce memoranda from those conferences. The matter again came before Bennett J on 30 July 2012 and her Honour noted that the trial had been fixed for three days commencing 6 August 2012 at Parramatta. Leave was granted to the husband to administer further questions to the wife, in lieu of cross-examination and the time within which he was to file his evidence was extended to 4 pm that day. Leave was also granted to the husband to file affidavits from Ms S and Mr H by 4.00 pm on the following day but as I have said, the question of the receipt of those affidavits into evidence was reserved to me.
Although Mr H was instructed to prepare the report by letters from the husband’s solicitors dated 12 & 13 July 2012, no notice was given to the Court or to the wife’s lawyers of an intention to rely on his evidence until one week before the commencement of the hearing. Although there was an assertion from the husband’s senior counsel that the wife might nevertheless have been able to give instructions about this material or that she did not need to give instructions about this material, those propositions were not ultimately pressed in the husband’s case, and sensibly so. Ultimately there was no contest that the wife could not meet this material and that the admission of the entire affidavit would cause the abandonment of the trial.
These proceedings have been on foot for the best part of three years. The wife gave evidence of the stress experienced by her associated with the proceedings and that she observed a coincidence of her symptoms flaring up and her preparation for trial, including preparing affidavits and attending on medical experts. That evidence was supported by that of her treating doctor, Professor K. He was not called for cross-examination on that or any other aspect of his evidence.
At all times the husband and those advising him were aware that it was extremely difficult for the wife to give instructions on complicated material. Indeed the wife’s poor health was the fundamental catalyst for the proceedings. The parties knew of the wife’s condition when they married and the husband gave evidence that he knew and knows about multiple sclerosis. The pre-trial process was closely managed in the Melbourne Registry by Bennett J. Previous hearings had been vacated and in part as a result of the deterioration of the wife’s health, it was decided that the hearing would be conducted at Parramatta to allow the wife the best opportunity of taking meaningful part.
No issue was taken on behalf of the husband with the assertion from the bar table that the wife could not fairly address the report in the context of the dates fixed for the trial. However, it was submitted that the remedy for that was in an adjournment and by giving consideration to making an order for costs.
Given that there was no challenge to the matter being fixed for trial commencing on 6 August, there is no adequate explanation offered for the husband’s delay in filing this material. Even then, no effort was made to give the wife and her advisers as much notice as possible that she would be asked to address a report from Mr H. The report was commissioned on 12 July and the wife was told two weeks later.
In my view there are problems with the probative value of the passages to which the wife objected. Mr H made assumptions about the necessity or nature of certain types of expenditure by the wife and an apportionment of certain expenditure by the wife’s brother. In each case I understood that the basis for those assumptions would be challenged and with some justification. However, the most important reason for rejecting the passages in question is that the admission of them into evidence would have extended what are already unacceptably extended proceedings with the potential for harm to the wife that could not be addressed in costs.
Finally, the impact of the indulgence sought on behalf of the husband would be felt by persons beyond these proceedings. There would be the cost to the community of the abandonment of the dates fixed for hearing. Perhaps more importantly there would be the impact of allocating new dates for these proceedings, on parties in other proceedings waiting for the allocation of hearing dates at Parramatta. Again, those costs cannot be measured solely in financial terms. Those matters are also relevant to the determination of the issue before me here.[1]
[1] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

Short history

The wife was born in 1958 and is 54 years of age. The husband was born in 1957 and is 55 years of age. The parties married in 1983. They finally separated in November 1998. There are no children of the marriage. The husband remarried and has two children from that subsequent marriage.

Background facts

In January 1975, the husband commenced work at Company X, an international resources company.
In 1977 the wife was diagnosed with multiple sclerosis.
In 1983, the parties married.
In 1998, the parties separated.
In 2000, the parties’ divorce became final.
In November 2000, the husband married Ms K Hand. They have two children who are now 10 and 7 years of age.
On 19 December 2000, a financial agreement between the parties was approved by the court pursuant to s 87 of the Family Law Act 1975 (Cth) (“the Act”) and an order was made, by consent, in the following terms:
1. That the Husband pay to the Wife spousal maintenance in the sum of $500 per week commencing on the date these orders are made.
2. That the Wife’s Form 12 Maintenance Application and Form 3 Application filed 14 November 2000 be otherwise dismissed.

In late 2000, the wife was employed part time as a health care professional and was living with her mother in her home at Property V in North West Sydney.
In September 2001, D was born to the husband and Ms K Hand.
In 2001, the wife fell and broke her left shoulder.
In May 2003, the wife purchased a property in North Sydney, (Property W”) for approximately $462,000 partially using proceeds from her property settlement with the husband. She secured the balance of the purchase price by a mortgage to the St George Bank.
In 2003, the wife fell and fractured her hip and shoulder. She subsequently had a hip replacement.
In April 2005, E was born to the husband and Ms K Hand.
In July 2005, the husband and Ms K Hand purchased a property Suburb S, Melbourne for approximately $3.5 million.
In March 2007, the wife fell in the bathroom and suffered injuries including a fractured vertebrae, pelvis, ribs, knee and skull. She was hospitalised and was unable to resume employment after this fall.
In February 2008, the wife’s employment was terminated. Her multiple sclerosis symptoms advanced and she became housebound. Her driver’s licence was withdrawn at this time.
In May 2008, the husband and Ms K Hand purchased a country property North West of Melbourne (“Country Property 1”), for $1.575 million. This property is held is Ms K Hand’s sole name.
In July 2008, the wife obtained a margin loan through a lending firm to purchase shares and to meet living expenses.
On 22 July 2008, occupational therapist, Ms O prepared a medico legal report on behalf of the wife.
In March 2009, the husband was made redundant by Company X and received a gross payment in excess of $5 million and superannuation benefits of approximately $4.7 million.
On 1 December 2009, the wife filed an Initiating Application in the Family Court seeking an increase of spousal maintenance.
In January 2010, the husband and Ms K Hand purchased a second country property (“Country Property 2”) for approximately $1.35 million. This property is held in Ms K Hand’s sole name.
In February 2010, the husband and Ms K Hand purchased a property at V Court, Suburb T, Melbourne for $3.9 million.
On 1 April 2010, the husband commenced employment as CEO of a global mining company with a salary package of approximately $1.7 million, plus shares for the first year.
In April 2010, the husband and Ms K Hand sold the property in Suburb S, Melbourne for $4.5 million.
On 20 July 2010, Ms O prepared her second medico legal report on behalf of the wife.
On 20 August 2010, neurologist Professor K prepared a report on the wife’s condition.
On 27 October 2010, Senior Registrar FitzGibbon made the following orders:
1.   That paragraph 1 of the orders made 19 December 2000 be varied as from 1 September 2010 to provide that the husband pay until further order the sum of $1,500 per week to the wife.
2.   That in addition to the sum in paragraph 1 the husband pay to the wife the sum of $25,000 within 7 days such funds to be used by her to obtain an electric wheelchair and make modifications to her home to suit her needs as identified by Ms O.
3.   That the interim applications will be dismissed and the matter placed into the list awaiting fixture for final hearing.
4.   Costs of each party be reserved and determined by the court at trial.
On 3 December 2010, the wife sold 6,600 Company X shares for $294,160 and discharged the margin loan. The balance of $3,700 was applied toward living expenses.
On 1 March 2011, Ms O assumed the role of case manager for the wife. She soon after arranged for the purchase of an electronic wheelchair for the wife.
In March 2011, the wife injured her foot and was incapacitated for several weeks.
On 13 April 2011, the wife resumed recreational outings on a fortnightly basis with a carer and using a limousine service.
Between April and July 2011, modifications were carried out to the bathroom and the rear of the wife’s mother’s property in North West Sydney at a cost of $28,955. The wife was then able to exit through the rear of the home.
In July 2011, the wife sold Property W in North Sydney for $560,000.
On 18 July 2011, the wife sold 100 Company X shares and received $4,235. Of this, $3,700 was applied toward the advertising costs for selling Property W
On 23 July 2011, an electric wheelchair was delivered to the wife at a cost of $4,160.50, plus an assessment fee of $1,120. The garage door and garage of the mother’s home in North West Sydney were also modified to enable wheelchair access at a cost of approximately $2,000.
In September 2011, the husband was terminated from his employment as CEO of the global mining company. He received a termination payment of $1.7 million, $1.02 million as a short term incentive payment, superannuation of approximately $25,000 and shares. He thereafter commenced consultancy work through his company P Pty Ltd.
On 17 October 2011, the wife attended upon Dr M, clinical psychologist, for an assessment on behalf of the husband.
On 21 October 2011, the wife took out a margin loan in the amount of $10,000 from the lending firm to pay her accountant’s outstanding fees.
On 26 October 2011, occupational therapist, Ms R attended the wife’s home to conduct an assessment on behalf of the husband.
On 27 October 2011, the wife attended upon Professor N for a neurological assessment on behalf of the husband.
In late October 2011, the wife was treated with steroid injections. She received care services for four hours a day for approximately two weeks.
On 4 November 2011, the property in North Sydney was settled. Following the discharge of the two loans held with St George and payment of sale costs, the wife received the sum of $274,710.
On 5 November 2011, the husband and Ms K Hand purchased a property at B Road, Suburb T, Melbourne for $8.7 million.
In mid November 2011, the wife received further steroid injections.
On 14 December 2011, the wife and her mother were registered as tenants in common in equal shares on Property V. She paid her mother $240,000.
From early February 2012, the wife has had regular attendant care from Dutiful Daughters for a minimum of four hours per day, plus additional care for recreational and medical outings. The wife also commenced intensive speech therapy.
On 9 February 2012, Professor K recommended that the wife commence new medication by monthly hospital infusions.
On 17 April 2012, the wife commenced her monthly infusions at a Sydney Hospital.
In May 2012, the wife drew down a further $8,998 from her margin loan to meet living expenses.
On 25 June 2012, Bennett J made orders that this matter be fixed for final hearing at the Parramatta Registry of the Family Court.
On 3 July 2012, the husband and Ms K Hand sold the property at V Court, Suburb T, Melbourne for $3.5 million.
In late July 2012, the wife sold her shares jointly held on trust by her brother, Mr D Bodilly for approximately $150,000 to pay outstanding debts.
On 30 July 2012, the husband was invited to join the Board of LE Limited, a gas and electricity provider as a Non-Executive Director, effective 1 September 2012. He will receive a gross base remuneration of $166,500 per annum.

Credit and Submissions

The evidence of the witnesses

Because of her ill-health the wife could not be called for cross-examination. That placed the husband at a forensic disadvantage. However, despite adversarial experts retained by him to test much of the wife’s case, there was virtually no successful challenge to that case. Lest it be thought that the forensic disadvantage only applied to the husband. It is common ground that the wife’s health made it difficult for her lawyers to obtain instructions and impracticable on occasions, including for much of the trial, for her to attend on them, especially at Court and to be in a position to provide timely instructions.
As to the witnesses called for cross-examination:
The husband was not a good witness. Unfortunately his early approach to the financial disclosure was distractingly inadequate and in stark contrast to the way in which his case was conducted at trial. As a result of his early documents, he was placed in the position of having to defend various implausible propositions and naturally failed to do so. Rather than making the necessary concessions, the husband prevaricated, seeking to explain the indefensible. The effect of the husband’s evidence was that he misunderstood how his financial circumstances should have been presented to the Court and to the wife. For much of his cross-examination the husband was argumentative and unresponsive. Poor as the husband was as a witness, as the case developed however, little if anything fell to be determined by reference to the husband’s uncorroborated testimony.
Mr F was not successfully challenged in relation to any major issue. He made proper concessions when asked.
Ms O, Ms R, Ms S and Mr H gave evidence as experts and their credit was not in issue. As it transpired the main controversy at trial arose from the evidence of those witnesses. The evidence of Ms O, Ms R, Ms S was valuable and relevant. To some extent they were set on a course to determine the main issue in the case. They did that from the perspective of their profession and in my view were not fully instructed about the parameters of the issue before me. I will deal later with the treatment of their evidence. The time within which Ms S was required to undertake her task was too short to allow her to fully discharge her commission. Ms S said as much. She completed her final report in one afternoon and it is likely that is why she fell into error in some areas. For example, she obtained some information from Ms R (who like Ms S was also retained by the husband) rather than from the joint report of the parties’ experts or by contacting both of them, as she was required to do. For one reason or another Mr H’s evidence was not greatly relied on. In my view, the problem did not rest with him. He was commissioned to undertake various tasks which were largely irrelevant or in any event of little probative value. I need to say a little more about his evidence later in these reasons.

The Law

Section 72(1) of the Family Law Act says relevantly:
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).

Subsection 74(1) provides as follows:
Power of court in spousal maintenance proceedings
(1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
Subsection 80(1) relevantly provides:
(1) The court, in exercising its powers under this Part, may do any or all of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
……
Although not directly relevant here subsection 80(2) provides:
General powers of court
…….
(2)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.

Section 83 of the Family Law Act relevantly provides:
Modification of spousal maintenance orders
(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b) made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA[2]:
[2] Section 111AA relates to maintenance obligations between Australia and New Zealand and is not relevant here.
(c) discharge the order if there is any just cause for so doing;
(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(A) The court's jurisdiction under subsection (1) may be exercised:
(a) in any case--in proceedings with respect to the maintenance of a party to the marriage; or
(b) if there is a bankrupt party to the marriage--on the application of the bankruptcy trustee; or
(c) if a party to the marriage is a debtor subject to a personal insolvency agreement--on the application of the trustee of the agreement.
(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such;
as to justify its so doing;
(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent--that the amount ordered to be paid is not proper or adequate;
(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
(3) Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first-mentioned order is made for the purpose of giving effect to this Part.
(4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(5A) In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit of the other party.
(6) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
(6A) Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date, being moneys that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act.
(6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
(7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
(8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
These are proceedings under s 83 of the Act. It fell to the wife to establish that since 19 December 2000, her circumstances have so changed as to justify the order she seeks increasing her maintenance. Given the husband’s proposal, I understand that it is an agreed fact that the wife’s circumstances have changed so as to justify an increase in maintenance. The issue relates to the extent of the increase.
The husband conceded that he has the capacity to pay. Indeed the concession went beyond that. The following proposition was accepted by senior counsel for the husband: “If I find that the necessary support is $3,000 or $4,000 (per week) it would be reasonable for me to order that your client pay that”.
The issue to be determined by me is the extent of the needs of the wife. In deciding that issue, the court is to have regard to relevant matters referred to in s 75(2).

The exercise of discretion

Turning to Section 75(2):

(a) the age and state of health of each of the parties;

The wife is 54 years of age and the husband is 55.
The wife’s health
The wife was diagnosed with multiple sclerosis in 1977. The medical experts retained by the parties included the wife’s treating doctor, Professor K MBBS PhD FRACP Clinical Associate Professor, Consultant Neurologist and the husband’s expert, Professor N PhD, DSc, FRACP Professor of Medicine, Prince of Wales Clinical School, UNSW. The statement in relation to the health of the wife that issued from their conference contained the following:
There was agreement that [the wife] fulfilled clinical and laboratory criteria for a diagnosis of secondary progressive Multiple Sclerosis.
It was noted that [the wife] had been previously employed as a full time pharmacist and had been living independently. It was further agreed that the diagnosis of secondary progressive multiple sclerosis had resulted in significant impairment of her independent lifestyle, occupational and social functioning.
• [The wife’s] ability to organise herself and the need for someone such as a case manger to assist her in the future;
Professor [N] and [K] agreed that [the wife’s] diagnosis of multiple sclerosis had resulted in a degree of cognitive impairment particularly in relation to executive functioning. This was evident on the objective neuropsychological assessments that were reviewed.
It was noted that [the wife] had become house bound. It was agreed that with suitable house home modification, [the wife] could retain relative independence whilst also reducing the risk of future falls.
It was agreed that the current case management appeared beneficial and that it should continue in its current form.
It was further agreed that with progression of multiple sclerosis, there may be requirement to increase the level of management. It was also agreed that [the wife] receives a significant input at present from her mother and as such, a greater level of external services may be required in the future to cover these responsibilities, particularly in relation to meal preparation, mobility, and domestic assistance.
• [The wife’s] ability to give evidence in Court and perform under pressure, particularly during cross-examination;
The previously mentioned neuropsychological assessments were reviewed. It was felt that on the basis of the information provided, [the wife’s] evidence may be unreliable and that appearance in cross-examination may lead to further stress that may prove deleterious to [the wife’s] multiple sclerosis, possibly precipitating an exacerbation.
• The extent to which [the wife] may require assistance to manage her finances and legal issues and whether she requires the appointment of a "next friend" for legal decisions;
[The wife] currently manages her financial affairs with the assistance of an accountant. It was agreed that given the evidence for executive dysfunction, were a significant lump sum settlement to be reached, it was likely that [the wife] would require financial management services.

Neither of the experts was required for cross-examination.
The parties also retained the services of Ms G BA (Hons), M Phil, MA Clinical Neuropsychology and Dr M D Psychology (Clinical). The statement in relation to the psychological health of the wife that issued from their conference contained the following:

·        [The wife’s] level of cognitive functioning;
We were in agreement that [the wife] had average range intellectual capacity, with mild deteriorated information process, aspects of executive functioning, and impairment of perception and motor abilities.
We agree that [the wife] was once employed fulltime as a [ … health care professional] and living independently and that her medical condition of multiple sclerosis has resulted in significant impairment of her occupational, social, and independent functioning.
·        [The wife’s] ability to organize herself and the need for someone such as a case manager to assist her in the future;
We note that there were methodological differences in prognostic process, with Ms. [G] relying on a test-retest data and Dr. [M] relying on base rates; that is the statistical likelihood of a prognostic outcome. Ms [G] had seen [the wife] on two occasions (2007 and 2011), and had access to [the wife’s] initial assessment from 1999, and noted a decline in observable functioning and performance on psychometric measures
It was concluded that there is a probable declining course of illness and, as discussed below, services will need to be increasingly engaged in the future to address [the wife’s] needs as they arise.
[The wife] currently consults an accountant regarding her financial affairs, and we agree she will continue to require the ongoing consultation of an accountant. Ms [G] reported that current case management was useful, and that this had facilitated [the wife] to physically leave the home and engage care providers. Ms. [G] reported that [the wife] was previously not aware that there were services available to her, and that the Case Manager had brought this to her attention and had successfully engaged_relevant services.
It was agreed that the current case management was beneficial, and case management should continue in its current form. It was concluded that the level of case management would not need to change, but that the number of services engaged may increase in the future, due to [the wife] not being able to physically negotiate her environment and probable continuing cognitive decline.
There were concerns about how [the wife] would cope when her mother either becomes incapacitated due to her age and health condition or dies. Further external services would at that time need to be engaged to fill the responsibilities currently fulfilled by [the wife’s] mother such as supervision of her personal care/hygiene routine, domestic assistance, meal preparation, and assisted mobility within the home
·        [The wife’s] ability to give evidence in Court and perform under pressure, particularly during cross-examination;
We are in agreement that [the wife] is not able to respond under pressure and would not be able to perform during cross-examination. We agree that she has adequate comprehension that she would be able to give an account on issues if these were presented to her and she was given time to prepare a response without time pressure.
·        The extent to which [the wife] may require assistance to manage her finances and legal issues and whether she requires the appointment of a "next friend" for legal decisions.
It was agreed that no "next friend" is needed at this time. As discussed above, [the wife] will require the services of her accountant with regard to management of her current finances. However, given [the wife’s] evident executive difficulties she is likely to require financial management services of any significant lump sum settlement, and if her cognitive function declines further.

Neither of the experts was required for cross-examination.
The parties also retained the services of Occupational Therapists, Ms O and Ms R. The following is the statement in relation to the wife’s daily activities that issued from their conference:

REPORT FROM JOINT EXPERTS OT CONFERENCE
ACTIVITIES OF DAILY LIVING REPORT
Name:  [Ms Bodilly]
Address:                  [Property V, North West Sydney]
Date of Birth:                  […] 1958
Joint Experts Conference: 25 July 2012
Meeting Location: [North West Sydney] Library
[…]

Time: 11.00am to 1.30pm
Date of Report: 27 July 2012
1.INTRODUCTION
1.1Ms [O] (Occupational Therapist) and Ms [R] (Occupational Therapist) engaged in a joint expert's conference on 25 July 2012 at the direction of Mr Aaron Peppin of Kenna Teasdale Lawyers.
1.2Both experts acknowledge that we have read and are familiar with the expert witness code of conduct contained in Schedule 7 of the Uniform Civil Procedure Rules, 2005, and agree to be bound by the code. This report has been prepared in accordance with the code.
1.3Both experts confirm that:
a)The factual matters stated in this matter are as far as we are aware, true and correct;
b)We have completed all enquiries considered appropriate in formulating our opinions;
c)The opinions stated within this report are genuinely held by both experts as stated;
d)The report contains reference to all matters regarded as significant; and
e)This report was initially drafted by [Ms R] and then jointly completed by both experts.
1.4It is our understanding that our overriding duty is to assist the court, and we have complied with this duty.
1.5Slightly different instruction from legal counsel has been provided to both experts in view of determining [the wife’s] specific care needs. Ms [O] was asked to consider what services [the wife] has indicated she would like to receive and what activities [the wife] is / is not physically capable of participating in based on her professional opinion. Ms [R] was asked to consider what is reasonable and necessary based on her professional experience, reporting by [the wife], observation of [the wife] and medical reports provided.
2.BACKGROUND
2.1Previous assessments were conducted with [the wife] within her residential environment [in North West Sydney] by Ms [O] (Occupational Therapist) on 22 July 2008 and 20 July 2010, and Ms [R] (Occupational Therapist) on 26 October 2011 respectively. Supplementary reports have also been prepared by Ms [R] at the request of Mr Aaron Peppin of Kenna Teasdale Lawyers and are dated 11 May 2012 and 18 July 2012. These assessments were conducted for the purpose of determining [the wife’s] functional status and ongoing needs in relation to her engagement in both Personal and Instrumental Activities of Daily Living.
2.2Ms [O] assumed the role of case manager to [the wife] on 01 March 2011. Whilst case manager she has prepared Affidavits dated 13 September 2011 and 05 July 2012 (for reports dated 12/04/2012 and 01/07/2012).
2.3As per Court Order made by her Honour Justice Bennett in the family court at Melbourne on 08 December 2011, a joint meeting was held by Ms [O] and Ms [R] during January 2012 and a joint conference report was completed dated 27 January 2012. The original joint conference report has been considered in the preparation of this current joint conference report.
2.4The letter of instruction detailed by Mr Aaron Peppin of Kenna Teasdale Lawyers and dated 24 July 2012 requests a joint meeting be held by Ms [O] and Ms [R] and that a joint report be completed detailing matters upon which are agreed or disagreed with reference to our particular recommendations.
2.5Following review of the independent reports prepared by Ms [O] and Ms [R], both experts acknowledge their respective speciality areas in occupational therapy, and have given due consideration to each other's relative expertise in the formulation of joint opinions.
2.6Each area of domestic care will be dealt with in turn identifying matters upon which the experts agree, disagree and in the case of ongoing disagreement, rationale will be detailed.
2.7Both experts agree that [the wife] has been diagnosed with Multiple Sclerosis (MS) and that her symptoms/attacks have occurred more frequently, have been more severe and have lasted longer over the past 5 years (based on medical reports provided at the time of assessments). She has also been diagnosed with osteoporosis, related to previous steroid use, which increases her susceptibility to bone fractures.
2.8Both experts agree that her ongoing symptoms include:
·partial loss of vision;
·vertigo;
·sensory changes of the hands, fingers, feet, and toes;
·facial droop;
·dysarthria;
·incontinence;
·motor impairment;
·frequent loss of balance;
·decreased mobility requiring walking aids when indoors and a wheelchair when in the community;
·decreased coordination;
·back pain (related to her fall in 2007);
·hip pain;
·fatigue and general muscle weakness; and
·susceptibility to falls.
These symptoms contribute to her current need for care.
2.9Please report to previous reports as outlined above for further details regarding [the wife’s] past medical history.
2.10 As outlined in detail in both Ms [O]'s report dated 01 July 2012 and Ms [R]'s report dated 18 July 2012, [the wife] currently receives the following medical management and support:
·monthly Tysabri injections;
·regular reviews with [Professor K], Neurologist (every three months or so);
·yearly MRI scans and blood tests;
·reviews with Dr [A], General Practitioner, as required;
·occasional reviews with Northern Sydney Nursing Service;
·dental appointments on a yearly basis or as required;
·case management services provided by Ms [O], Occupational Therapist;
·speech therapy services provided by Ms [RR], Speech Pathologist, on a monthly basis.
2.11 [The wife] has been referred to Dr [CL], Urologist, and has an initial assessment appointment for 24 October 2012.
3.PAST CARE REQUIREMENTS
3.1Please refer to previous reports by Ms [O] and Ms [R] for details concerning [the wife's] past care needs - in particular Ms [O]'s reports dated 11 August 2008, 28 July 2010 and 13 September 2011 and the Joint Experts Conference Report dated 27 January 2012 — for details regarding past requirements for commercial care and domestic assistance.
4.RECENT PAST CARE REQUIREMENTS
4.1It is apparent that [the wife's] cognitive abilities (including memory, recall, and planning) have changed over time, presumably as a result of her medical condition of Multiple Sclerosis. These cognitive changes could impact on the validity of information relayed by [the wife] and be reflected in the differences reported by Ms [O] and Ms [R] in the following tables.
4.2[The wife's] care needs have remained relatively similar to that detailed in the previous Joint Experts Conference Report dated 27 January 2012. Her recent past care requirements, as supported by Ms [O] and Ms [R] are detailed in Table 1.

4.3Table 1

Type of care	Care Hours supported by Ms [R]	Care Hours supported by Ms [O]	Comments
Personal Care Assistance — supervision and assistance with set up, dressing, undressing, washing and transfers (daily). Meal Preparations – assistance with meal preparation and cleaning up (Gourmet Meal preparations for the evening meal). Assistance with cutting food as required and supervision of eating. Laundry care - washing, hanging, Folding, making the bed, changing soiled bed linen and ironing. Basic cleaning – spot mopping, wiping down the bathroom floor after showering, wiping down bench tops, tidying bedroom and light sweeping. Shopping – travel and shopping for incidental items. Social Outings Attendant carer support (with the use of own or carers car)	4 hours / day 28 hours / week Provided by Dutiful Daughters — attendant care services.	4 hours / day 28 hours / week Provided by Dutiful Daughters — attendant care services.	Both experts in agreement.
Social Outings	1 hour / week	1 hour / week	Both experts in agreement.
Additional carer support for outings.
Cleaning Assistance — bathroom	2 hours / week at a cost of $75.00 divided by 2 people therefore $37.50 per week __________________ $75.00 / year [the wife]’s share of a total $150.00 per year.	2 hours / week at a cost of $75.00 ________________ $200.00 per year	[The wife] informed Ms [R] this was a shared cost with Ms [M Bodilly] (Mother). Ms [O] not aware that this cost was shared based on information provided by the wife. _______________ [The wife] informed Ms [R] this was a shared cost with [Ms M Bodilly] (Mother). Ms [O] not aware that this cost was shared based on information provided by [the wife].
cleaning (x 2), vacuuming, dusting, wiping the bench tops and kitchen areas, cleaning cobwebs — of common areas. Commercial Services
Cleaning of venetians Completed twice each year. Commercial Services
Outdoor window and awning cleaning Commercial Services	$200.00 / year [The wife’s] share of a total $400.00 per year	Once each year at $300.00	[The wife] informed Ms [R] this was a shared cost with Ms [M Bodilly] (Mother) Ms [O] not aware that this cost was shared based on information provided by [the wife].
Lawn care - mowing, cutting edges,	Lawn mowing — 26 occasions at $17.50 The wife's share of $35.00 per fortnight. Plus $100.00 per year of periodic gardening (of a total $200.00.	Lawn mowing — 26 occasions at $35.00 (not shared). Plus $120.00 on periodic gardening.	The wife informed Ms [R] this was a shared cost with Ms [M Bodilly] (Mother). Ms [O] not aware that this cost was shared based on information provided by The wife.
and general lawn maintenance. Periodic gardening, tree trimming, and cleaning gutters
Handyman services	8-12 hours per annum 0.19 hours / week	8-12 hours per annum	Both experts in agreement.
Commercial services
Medical appointments	6 hours / month 1.38 hour / week	67 hours of care per year. 1.29 hours / week	Both experts acknowledge a slight difference in hours reported.
Attendant care hours
Hire car services for medical /	2-3 services in this period	Not quantified	Please refer to financial statement of the wife for detail of hire car costs (per use).
social appointments

5. FUTURE CARE REQUIREMENTS
5.1 The table below lists the future care required by [the wife] due to her difficulties with task completion as a result of her medical condition. It would be expected this level of care will continue to be required whilst she remains able to mobilise within her home independently with the use of her traymobile.
5.2 Both experts note that differing verbal information on costs for commercial cleaning services has been provided by [the wife]. It is recommended that further clarification is sought from financial statements provided by [the wife] for this information. The table below represents costs provided to each expert at the time of writing their reports, that is, Ms [O]'s report dated 01 July 2012 and Ms [R]'s report dated 18 July 2012.

5.3 Table 2

Type of care	Care Hours supported by Ms [R]	Care Hours supported by Ms [O]	Comments
Personal Care Assistance — supervision and assistance with set up, dressing, undressing, washing and transfers (daily). Meal Preparation — assistance with meal preparations and cleaning up (Gourmet Meal preparations for the evening meal). Assistance with cutting food as required and supervision of eating. Laundry care - washing, hanging, folding, making the bed, changing soiled bed linen and ironing. Basic cleaning - spot mopping, wiping down the bathroom floor after showering, wiping down bench tops, tidying the bedroom and light sweeping. Shopping — travel and shopping for incidental items. Social Outings One hour of care is provided within this time frame to assist [the wife] prepare for outings.	4 hours / day 28 hours / week Provided by Dutiful Daughters — attendant care services.	4 hours / day 28 hours / week Provided by Dutiful Daughters —attendant care services.	Both experts in agreement.
Cognitive support	1 hour / week	1 hour / week	Both experts in agreement.
Attendant care support
Additional carer support for social outings	4.5 hours / week + 2 hours / month if transport services are unreliable. (total of 20 hours every 4 weeks)	Local outings — an additional 4 hours / week. Major outings — an additional 10 hours every 4 weeks. (total of 26 hours every 4 weeks)	No agreement reached. Refer to differences of opinion detailed in points 6.2 and 6.3
An average for both the local and longer outings. Attendant care support
Transport for the longer social	60-80km per month taxi services or alternatively the attendant carer drives [the wife]'s car.	Hire car at 24 times per annum (for longer outings).	No agreement reached. Refer to differences of opinion detailed in points 7.5 and 7.6
outings
Attendant carers are driving [the wife]'s vehicle for local outings.
Cleaning Assistance — bathroom	2 hours / week at a cost of $75.00 divided by 2 people therefore $37.50 per week	2 hours / week at a cost of $75.00	No agreement reached. Please refer to [the wife]'s financial statement for a more accurate estimation of cost.
cleaning (x 2), vacuuming, dusting, wiping the bench tops and kitchen areas, cleaning cobwebs — of common areas. Commercial Services
Cleaning of venetians	$75.00 / year [the wife]'s share of $150.00 per year.	$200.00 per year	No agreement reached. Please refer to [the wife]'s financial statement for a more accurate estimation of cost.
Completed twice each year. Commercial Services
Outdoor window and awning	$200.00 / year [the wife]'s share of $400.00 per year.	Once each year at $300.	No agreement reached. Please refer to [the wife]'s financial statement for a more accurate estimation of cost.
cleaning
Commercial Services
Lawn care - mowing, cutting	Lawn mowing — 26 occasions at $17.50 [the wife]'s share of $35.00 per fortnight. Plus $100.00 per year of periodic gardening (of total cost of $200.00).	Lawn mowing — 26 occasions at $35.00 (not shared). Plus $120.00 on periodic gardening.	No agreement reached. Please refer to [the wife]'s financial statement for a more accurate estimation of cost.
edges, and general lawn maintenance. Periodic gardening, tree trimming, and cleaning gutters Gardening services
Handyman services	8-12 hours per annum 0.19 hours / week	8-12 hours per annum	Both experts in agreement.
Commercial services
Medical appointments	Average 1.29 hours / week	Average 1.29 hours / week	Both experts in agreement.
Attendant care support An estimation of future care hours has been provided which indicates a total of 67 hours of care per year.
Hire car services for medical	An estimation of 19 occasions per year.	An estimation of 19 occasions per year.	Both experts in agreement. Please refer to [the wife]'s financial statement for a more accurate estimation of cost.
appointments

5.4 As has been noted by Ms [O] and Ms [R] in previous reports, it is anticipated that [the wife]'s future care needs will gradually increase to a level where she will require 24 hour care due to her illness. The time period in which this may occur cannot be anticipated. It would be expected that a gradual increase in hours over time would be necessary; but time frames for this are impossible to estimate.

6. CARER ASSISTANCE FOR OUTINGS
6.1 Both experts agree that [the wife] should access the community on a regular basis for mental stimulation, social interaction, psychological well-being and physical benefit. However both experts hold different opinions regarding the frequency of regular outings.
6.2 Ms [O] holds the opinion that the primary limitation to [the wife]'s current frequency of outings is financial as indicated to her by [the wife] during case management contact. [The wife] appears keen to have more regular opportunity for community outings and has indicated to Ms [O] that if she could afford to, she would cope with her incontinence issues during these outings. Ms [O] continues to believe that this frequency of outings is reasonable for someone of [the wife]'s age and current physical abilities.
6.3 Ms [R] continues to consider those hours detailed in the Joint Experts OT Conference report (27/01/2012) reasonable and necessary, that is 4.5 hours per week of attendant carer support for social outings. Consideration has been given to [the wife]'s recent comments during a telephone conversation with Ms [R] on 13/07/2012 indicating that [the wife] has been unable to attend local and longer outings on a regular basis, as per her intentions detailed in previous reports, largely because of issues of financial affordability and medical concerns, primarily that of incontinence. In light of her recent history, I consider two local outings per week (an additional 1.5-2 hours carer support for each outing) and one longer outing per month (an additional 3-4 hours carer support for each outing) reasonable and necessary. This amounts to 4.5 hours per week of additional attendant carer support. I acknowledge that disabled taxi services are not always reliable and that additional carer hours may be required should these services be late. An additional 2 hours of assistance may be required should this be the case.
6.4 Therefore recommendations for care hours required for completion of social outings remains an area of difference of opinion.
7. TRANSPORT OPTIONS
7.1 Please refer to considerations made in past reports and the Joints Experts Conference Report dated 27 January 2012 for further details.
7.2 [The wife] continues to rely on private car hire services, primarily Macquarie Limousines, to drive her to medical appointments as required and community venues where parking is difficult, such as the Art Gallery of Australia. [The wife] continues to prefer the use of hire car services over the use of disabled taxis due to her concerns regarding the waiting times for taxis and her concerns about the unfamiliarity of taxi drivers due to the large number of staff.
7.3 Both parties agree to the number of occasions of hire car use for the purpose of specialist medical appointments where appointment times are definite, that is on average 19 appointments per year.
7.4 Both experts acknowledge that disabled parking facilities are relatively common place particularly at larger social venues such as the Art Gallery of NSW. It may be possible for carers to transport [the wife] in her own vehicle, drop [the wife] at the main entrance, park in an allocated disabled parking space, and return to [the wife] in a relatively short period of time, dependent upon parking availability. [The wife] however continues to prefer the use of car hire services for all longer outings.
7.5 Ms [O] is of the opinion that although the above scenario is a reasonable option on some occasions, that [the wife’s] current use of hire car services to access social venues is a matter of personal choice.
7.6 Ms [R] holds the opinion that due to the high cost associated with hire car use, future use could be restricted to those specialist medical appointments where definite times are scheduled. For social outings where time frames are not as restrictive and parking is an issue, Ms [R] considers transport by disabled taxi reasonable.
7.7 Once her condition progresses and she becomes dependant on a power wheelchair for all mobility purposes, [the wife] will no longer be able to use hire car services, her own or carer's vehicles due to their inability to carry an electric wheelchair. She would then be required to travel by disabled taxi for all her transport needs, or alternatively purchase and modify her own vehicle to allow electric wheel chair storage.
7.8 Transport options were discussed in detail during the OT conference in January 2012. Our opinions remain unchanged and Ms [O] and Ms [R] agree that while disabled taxis would be the most cost effective option, Ms [O] reports that [the wife] remains resistant to this for the previously outlined reasons, that is:
a) Wait times — the unreliability of disabled taxi services affecting carer support hours and issues with incontinence; and

b)      Safety —travelling in a taxi with an unknown driver or restraint system.
7.9 We continue to agree that ultimately purchasing and modifying a vehicle for wheelchair access would be the ideal solution for [the wife]'s community access, but acknowledge the high cost factor involved. We also continue to agree that the use of disabled taxi services for community access would be the most cost effective method of transport over a short to medium term.
7.10 Ms [O] continues to hold the opinion that if [the wife] had to rely on disabled taxi services for community transport, it is likely that her community access would be significantly reduced, negatively impacting on her quality of life.
8.    HOME MODIFICATIONS
8.1 As [the wife’s] medical condition deteriorates it is likely that she will require further home modifications if she is to remain living within the current property. [The wife] now has a financial interest in the property as she is now part owner. Recommendations for major home modifications have been detailed in Ms [R]'s initial CDC Occupational Therapy report dated 29 November 2011, the Joint Experts Conference Report dated 27 January 2012 and Ms [O]'s progress report dated 16 April 2012.
8.2 Ms [O] in her report dated 16 April 2012 details a written quote provided by HOBC Construction which estimates major modifications will total $57 700.00. This estimation was later verbally revised to $63 700.00 however Ms [O] continues to await written confirmation of the verbal quote. Both experts agree that further quotes should be obtained to ensure competitive pricing.
8.3 Following discussions led by Ms [O], and when considering [the wife] now has financial interest in the property; it can be anticipated that [the wife] will remain living at her current address indefinitely. Given the limited knowledge Ms [O] has of [the wife]'s mother [Ms M Bodilly]'s health, that is having no life threatening medical conditions to reduce her life expectancy; it is reasonable to suggest that they will continue to cohabit for an unknown period of time. Ms [R] acknowledged that the option of [the wife] relocating to use the existing lounge room as her bedroom was proposed as a short term option or if [the wife] was living alone. Given the above factors, both experts agree that the major modifications as detailed in past reports are reasonably required.
8.4 Both parties understand that there have been no changes to State Health and HACC Services funding (for home modifications) to suggest a change of funding rules and regulations. Once applied for, it is difficult to determine timeframes for assessment, approval and completion of required work. Based on [the wife]'s previous experience as detailed in past reports by Ms [O], it is likely there will be an extended delay in completion of required works if applied for through State Health and HACC Services.
9.    PROFESSIONAL SERVICES
9.1 Both Ms [O] and Ms [R] support the need for professional services including Occupational Therapy, Speech Therapy, Nursing Services and Case Management services. Ms [O] and Ms [R] agree that the fee for service costs, and estimated hours of service, are similar in all their reports. Ms [O] was in agreement with using the fee for service costing's and hours of service as outlined in Ms [R]'s report dated 29 November 2011 should this be required for the purpose of the court.
9.2 Ms [O] and Ms [R] agree that psychological assessment and possible intervention may be required in the future.
10. EQUIPMENT
10.1 Please refer to the Joint Experts Conference report dated 27 January 2012. No amendments are required.
11. COST OF CARE
11.1 The Cost of Care Reports drafted by Ms [S] (Complete Domestic Care) and dated 29 November 2011 and 2 February 2012 cover a range of services however [the wife] prefers to use Dutiful Daughters. The hourly rates from Dutiful Daughters are very similar to those collated on the CDC database of personal carer rates for the Upper North Shore area of Sydney.
12. CONCLUSION
12.1 Ms [O] and Ms [R] participated in a joint conference as per legal instruction. Discussion was held regarding our differing opinion on various issues, the reasons for which are outlined in this document.
We trust that this information was of assistance.

The joint report was written in a combination of the first and third person. The fact that the first person references were occasionally “I” rather than “we” was explained by Ms R during cross-examination. She drafted the report but it was her unchallenged evidence that the content of the report resulted entirely from her collaboration with Ms O.

The husband’s health

In relation to the health of the husband, in his first affidavit the husband deposed to being under the treatment of a clinical psychologist for depression. At that time, in February 2010, he was prescribed anti-depressant medication. In addition, the husband undertook counselling in relation to his lack of self confidence. There is no significant evidence about the husband’s health otherwise.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; AND
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
In light of the concession made in the husband’s case the focus of the enquiry is entirely upon the wife’s circumstances.
The crux of the case relates to the wife’s income and outgoings. In light of the husband’s concessions it is not necessary or relevant to examine his financial circumstances. For completeness I will briefly set out what appears in the husband’s most recent Financial Statement. Obvious questions arise from that information but those matters were not addressed at trial.

The Husband

Husband’s current employment /contracts:
·Company MC (expires 30/9/12)
·Company RN
·TF Ltd
·LE Ltd

Estimated Net weekly income $12,150
Estimated Weekly expenses $23,820.00

According to his Financial Statement and affidavit filed 20 July 2012 the husband owns:

Assets

NAB bank account $20,000

Company X Shares (28,000 due to vest Aug 2012) $E870,000

Audi,
P Pty Ltd $E90,000
$Nil

Clothing and personal effects $20,000

Husband’s Superannuation entitlements
$4,617,500

Total Assets $5,617,500

Liabilities

Total income tax due April 2013
Income tax assessed and unpaid in previous yrs
(Note: P Pty Ltd is a guarantor against the
loan on the property B Road, Suburb T for $5,900,000.00)
($120,000)
($1,101,408)

Total Liabilities ($1,221,408)

Net Position $4,396,092

It was the husband’s evidence that at some point he was advised to place assets in the name of his current wife. Therefore it is relevant to record that Ms K Hand owns the following real estate.

Assets
B Road, Suburb T	$8,700,000.00
Country Property 1, Victoria	$2,000,000.00
Country Property 2, Victoria	$1,500,000.00
Total Assets	$12,200,000.00
Liabilities
Mortgage secured over property at B Road, Suburb T	($5,900,000.00)
Net Position	$6,300,000.00

I note that the husband’s taxable income for the 2010 – 2011 financial year was $5,836,247.
It was not suggested that the husband is not exercising his earning capacity.

The wife

I was invited by both senior counsel to take a broad view of the issues or at least not to limit myself to a narrow view of the issues. I would have liked to have accepted that invitation but it is necessary to start with some details.
There is a substantial level of agreement in relation to the necessary expenses of the wife. However, many of the arguments contained in the husband’s material in relation to the wife’s expenses are silly. Learned senior counsel for the husband neither resiled from them nor did he develop or actively press them on me. I understood him to simply offer the arguments for what use I might have for them. Little, as it transpired.
The wife’s claim for periodic maintenance is divided into two periods. She seeks $3,000 per week for the period 1 December 2009 to 31 January 2012 and $4,000 per week from 1 February 2012. I cannot identify the significance of 31 January 2012. The matter is not addressed in the written outline filed in the wife’s case; the date is not marked as significant in the chronology contained in that outline; I do not have a note of that date or period being specially identified in oral submissions; and critically, the changes of circumstances evidenced in the wife’s Financial Statements do not support the delineation made in her application. One of the joint reports of the Occupational Therapists was dated 27 January 2012 but it incorporated figures from earlier documents prepared by each of them. The report of Mr H treats 31 January 2012 as a relevant date but only because of the delineation in the wife’s claim.
The husband’s case is argued by reference to four periods which coincide with the dates of swearing of the wife’s Financial Statements. That seems to me to be a sensible approach. Addressing those periods:

1 December 2009 to 18 August 2010

The wife’s income was $1,368 made up of franked dividends at $440, bank interest at $14, $500 in spousal maintenance payments and $414 in gross rent on Property W.
The wife’s expenditure was $2,265 per week and her mother paid $10 per week for home help for her benefit. The husband complained about only three items of claimed expenditure. The arguments do not bear much scrutiny. They are:

Food the wife deposed to spending $400 per week. The extraordinary (and unsuccessful) argument made in the husband’s case is that that amount should be discounted by $150 because the wife only claimed $250 per week for food in her latest (2012) Financial Statement.
Hairdressing &
toiletriesthe wife deposed to spending $73 per week. The argument is that that amount should be discounted by $48 because the wife only claimed $25 per week for this item in her latest Financial Statement.
Internet &
telephonethe wife deposed to spending $36 per week for telephone and $74 per week for internet access.. The argument is that that amount should be discounted by $65 because the wife only claimed $45 per week for these item in her latest Financial Statement. Perhaps the argument would be that the wife should prudently have asked the telecommunications company in 2009 to put in place a 2012 bundling arrangement.

There is no basis for making those deductions.
Therefore there was a shortfall in the wife’s weekly budget for that period of $907.

19 August 2010 to 5 October 2011

The wife’s income included franked dividends at $523, bank interest at $8 and $480 in gross rent on Property W. The wife also received $500 per week in spouse maintenance until 31 August 2010 but from 1 September 2010 she received $1,500 per week pursuant to the orders of Senior Registrar FitzGibbon. Therefore from 19 – 31 August 2010 the wife’s income was $1,511 per week. From 1 September 2010 to 5 October 2011 the wife’s income was $2,511.
The wife’s expenditure was $2,475 per week and her mother paid $10 per week for home help for her benefit. The husband complained about only two items. The arguments do not bear much scrutiny. They are:

Food the wife deposed to spending $325 per week. The argument made in the husband’s case is that that amount should be discounted by $75. The same argument was made in relation to this period as for the earlier period and it is rejected.
Hairdressing &
toiletriesthe same argument was made in relation to this period as for the earlier period and it is rejected.

There is no basis for making those deductions.
Therefore from 19 – 31 August 2010 there was a shortfall in the wife’s weekly budget of $974.

6 October 2011 to 8 July 2012

The wife’s Financial Statement of October 2011 has the wife’s income at $2,239, made up of franked dividends at $259, $1,500 in spousal maintenance payments and $480 in gross rent on Property W in North Sydney. As was correctly argued in the husband’s case in relation to the wife’s claim for the weekly outgoings referable to that property, Property W was sold and therefore the weekly figures from the wife’s October 2011 Financial Statement are not a true reflection of the situation for the ensuing 9 months. Property W was sold on 4 November 2011. Assuming that the wife received rent until settlement, the wife would have received about $1,920 in rent for this period. That figure averaged over the 39 weeks of the period in question is about $50. Therefore the wife’s income was $1,809 made up of franked dividends at $259, $1,500 in spousal maintenance payments and $50 in gross rent on Property W.
The wife’s claimed expenditure was $3,246 per week and her mother paid $28 per week for her benefit. The husband complained about several items. They are:

Food the wife deposed to spending $340 per week on food, of which $120 was for the benefit of the wife’s mother. The argument made in the husband’s case is that that amount should be discounted by $120. The wife gave evidence that certain expenses were paid by her, for her mother’s benefit given that the wife had rent free accommodation in her mother’s house. There is no reason to discount this figure.
Faresthe wife deposed to spending $155 per week. The argument made in the husband’s case is that that amount should be discounted by $65 because his expert, Ms S opined in her affidavit sworn in July 2012 that the proper calculation was based on the cost of the wife using disabled taxis which, in the opinion of the husband’s other expert, Ms R was more appropriate than the wife’s preference for hire cars. I will deal with this issue in relation to the future below but it is not appropriate to discount a claim for the past by pretending that the wife used one form of transport when it is known that she used another. There is no reason to discount this figure.
Cleaningthe wife deposed to spending $100 per week. The argument is that the amount spent by the wife should be apportioned equally between the wife and her mother. The wife gave evidence that certain expenses were paid by her, for her mother’s benefit, given that the wife had rent free accommodation in her mother’s house. There is no reason to discount this figure.
Repairsthe wife deposed to spending $100 per week on repairs to appliances and furnishings. The argument made in the husband’s case was that such an expenditure is not required and “Further, the wife has acquired new appliances and furnishings …”. I take it that the thrust of the latter point is that new appliances and furnishings do not require repair or replacement. As to this issue, the husband was taken in cross-examination to $25 per week in expenses incurred by the wife solely in maintaining wheel chairs and her bed. There is no reason to discount this figure.
Hairdressing &
toiletriesthe same argument was made in relation to this period as for the earlier period and it is rejected.

As to the suggestion from the husband’s counsel that the antipathy between the husband and wife is mutual, there was no evidence that the wife harbours similar views. Again, her views are not relevant but there was no evidence to suggest that in her conduct of the proceedings, any action or inaction or delay was caused by anything other than the exigencies of her circumstances or the requirements of a particular step. This was not a voracious or malicious or mischievous claim. The wife’s application was made 9 years after maintenance was first ordered and two years after she ceased to have paid employment. As would be expected with her disease, the wife’s health deteriorated. In circumstances where there was no mechanism for the original award to even keep pace with inflation, the wife had no option but to seek a variation.
Ultimately the husband accepted much of the wife’s claim. That he came to that acceptance late is evidenced in the difference between the arguments made in the Case Outline prepared before the hearing and the oral submission of his learned senior counsel at the conclusion of the trial.
Neither party was wholly unsuccessful.
Remarkably, there were no written offers of settlement.
Finally, at all times the husband knew or should have known that the threshold issues under ss 72 and 83 were made out. The husband knew or should have known that he had the capacity to pay. The only justifiable controversy related to the extent of the wife's needs. The case was complicated by the fact that the wife’s claim was unquantified for two years and that she could not be cross examined. Those are the only matters arguing against a costs award in favour of the wife and even then, the husband could have proposed a compromise.
The submission on behalf of the wife is that her costs should be assessed on a solicitor and own client basis. The submission on behalf of the husband is that any award should be only as to party party costs.
The Family Law Rules 2004 address the assessment of costs in this way:

FAMILY LAW RULES 2004 - RULE 19.18

Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

Example
For paragraph (1) (c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.
(2) If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
(3)   In making an order under subrule (1), the court may consider:
(a)    the importance, complexity or difficulty of the issues;
(b)    the reasonableness of each party's behaviour in the case;
(c)    the rates ordinarily payable to lawyers in comparable cases;
(d)    whether a lawyer's conduct has been improper or unreasonable;

Of course the Rules do not bind the Court but here I was not asked to depart from them.
The wife does not seek that her costs be assessed on an indemnity basis. Nevertheless, I have been referred by the husband’s counsel to authority going to the unusual circumstances required for an indemnity costs order. In Stephens & Stephens and Anor (Enforcement) (Costs) [2010] FamCAFC 172 the Full Court discussed the approach to costs:
65. As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
66. As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
67. We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
Noting again that there is no such claim before me, but because the matter was raised in submissions, I record that the Full Court in Stephens later turned to the question of indemnity costs as follows:
Indemnity Costs
72. The Family Court has jurisdiction to make orders for indemnity costs: McAlpin and McAlpin (1993) FLC 92-411 per Full Court (Nicholson CJ and Maxwell J, Baker J dissenting); Kohan and Kohan (1993) FLC 92-340 per Full Court (Strauss, Lindenmayer and Bulley JJ); Munday v Bowman (1997) FLC 92-784 per Holden J; Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 per Full Court (Lindenmayer and Holden JJ, Mullane J dissenting) and Limousin v Limousin (Costs) (2007) 38 Fam LR 478 per Full Court (Kay, Coleman and Boland JJ).
73. An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
In Colgate Palmolive Co and Another v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 Sheppard J reviewed the English and Australian authorities about costs generally and at paragraph 24 said:
24. It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1. The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on
the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes
(1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is
exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.

The approach to the quantification of costs is not the result of law made or developed under the Family Law Act, not even in this century nor in the last. In his book Taxation of Costs Between Parties,[12] A. G. Saddington discussed the process of the quantification of costs by taxing officers. He traced the development of the practice and law of awarding costs from the time in English courts when a person could first have a representative present his case. The author explained that every costs award is by way of indemnity and discussed the extent of the indemnity that had been approved. The author discussed various authorities in relation to the assessment of costs on different bases and gives examples of things that have been allowed and not allowed. In relation to an assessment of party and party costs he said:
The costs to be allowed on this class of taxation are all that are necessary to enable the litigation to be properly conducted, all charges incurred merely for conducting litigation more conveniently are considered luxuries, for which the party who incurred them must pay.
[12] 1919, published by the Law Book Company of Australia.
As to an assessment of party and party costs on a solicitor and client basis he said:[13]
It appears, therefore, that on a taxation between parties on a solicitor and client basis, the unsuccessful party has to pay all the costs incurred by his opponent excepting in respect of (1) costs and expenses incurred prior to the institution of the action; (2) journeys and expenses of which the party liable could have no knowledge, and which would not ordinarily be performed or incurred; (3) the employment of more counsel, or the payment to them of larger fees than the circumstances of the case warrant, including the giving of special retainers.
[13] Page 68.
The examples may not still be apposite in the context of our world of costs agreements, pre-action procedures and video conferencing, but they give an indication of the margin that such a basis could have over a party and party award.
Finally, I was kindly provided with two further authorities by the husband’s learned senior counsel, although again in relation to indemnity costs. They are In the Marriage of Kohan (1992) 16 Fam LR 245 and Pencious & Pencious [2012] FamCA 12. My reading of those decisions, respectively of the Full Court and Cronin J sitting at first instance, reveals nothing further by way of principle than has already been identified in these reasons.

Conclusion under Section 117

The general position is that parties bear their own costs. Section 117(2) provides that if there are circumstances justifying an order for costs the resultant order is to be just. Those decisions are made by reference to section 117(2A). The wife has made a case for an award of costs. In Stephens & Stephens and Anor (Enforcement) the Full Court addressed the question of indemnity costs. While not seeking to cavil with the comments made in that case, a more complete statement of the obligation of a Court probably comes from Sheppard J in Colgate Palmolive Co and Another v Cussons Pty Ltd. It is the departure from an award on a party and party basis, rather than an order for indemnity costs that calls for the Court to find particular justifying circumstances in the case before it. Logically, a number of situations could constitute a departure from the usual order, including a fixed sum award, an award to be expressly quantified on a basis other than party and party and or an award for a percentage of such a calculation.
I accept from the authorities referred to above that if the Court is to award costs on a basis other than the usual one, circumstances justifying such a departure must be found. No particular circumstance is required and indeed, the class of qualifying circumstances is not closed.
Here, the financial disparity between the parties would itself justify a costs order in favour of the wife. I accept that the proceedings were made difficult for the husband in that the wife did not quantify her claim until late in the piece and because the details of the wife’s evidence could not be tested by cross-examination of her. However, this was a one issue case. The basis for the wife’s claim was uncontroversial and the only issue was the extent of her need. The wife did everything that was asked of her, to her considerable financial cost. There was no complaint about the wife’s compliance from the husband’s lawyers. By reference to the remarkable disparity in their financial circumstances, in particular the fact that the wife can ill-afford the costs of the proceedings and because of the way in which the husband conducted the proceedings, the wife is entitled to an award on a basis greater than the usual party and party basis.
I flagged with learned senior counsel the option of me making an assessment of the costs rather than ordering that the costs, on whatever basis, be as agreed or assessed. The former approach was supported on behalf of the wife and I have recorded no opposition to it on behalf of the husband. No doubt, by Rule 19.18 (1)(a), the Rules of court do no more than state the inherent position but I am able to make such an assessment. After their efforts over nearly 3 years of litigation about what is more usually the summary relief of spouse maintenance, I am not confident that the parties would be able to efficiently navigate the processes of either achieving an agreement about the quantum of costs or of assessment proceedings before a taxing officer. I will make an assessment.
The wife has incurred costs of $361,188.25. As to the potential influence of a party’s conduct on an award, learned senior counsel for the husband took me by way of example to the treatment by the Full Court of a party’s conduct in the proceedings as it was relevant to an indemnity costs claim in Stephens & Stephens and Anor (Enforcement) (Costs) [2010] FamCAFC 172. It is trite to say that no two cases are identical. For example, although the conduct of one party in Stephens was said to be egregious, the other party in that case was wealthy. As Sheppard J explained in Colgate Palmolive Co and Another v Cussons Pty Ltd the class of qualifying circumstances is not closed for awards of costs providing a greater level of indemnity than the usual one.
In my view the wife should be left with some obligation for costs. By not quantifying her claim, the wife made it difficult for the husband to make a meaningful response. Although no fault of the wife, the fact that the wife was not available for cross-examination was also through no fault of the husband. In my view the proper impost on the wife for the legal costs of these proceedings would be $30,000. It follows that the husband should pay the wife $331,188.25.

As to their being no opportunity for the Court or the husband to be satisfied about the justification for the quantum of the award, I am comforted by the fact that albeit out of all proportion to the matter ultimately in issue, the wife’s costs bear some relation to those incurred by the husband in these proceedings. As at 2 August 2012[14] the husband had paid $235,799.34 and had been advised of further costs at an estimated $65,000 for each day of the trial. I assume that not all of those costs were incurred. For example the doctors were not required for cross-examination. Nevertheless, it appears that the husband’s costs will be more than those of the wife.
[14] Cost advice letter dated 2 August 2012 – exhibit 5.
The husband’s lawyers did not have the problem of taking instructions from a client who was virtually house-bound, living in another state, nor had their client suffered any cognitive impairment. In those circumstances, one would expect the wife’s costs to be greater than those of the husband. That suggests that the wife’s costs are not inflated or exaggerated.
In summary, the wife has made out a case for an award of costs giving her a greater indemnity than she would receive on a party and party basis. Without putting the parties to a formal assessment process but as a check against the reliability of the wife’s solicitor client claim, her costs appear to be of the order of those also incurred by the husband. My assessment is tempered by those elements of the case that were beyond the husband’s control and therefore the wife is left with responsibility for $30,000 of her costs.
I will order that the husband pay to the wife costs assessed in the sum of $331,188.25. Those costs will be payable within 28 days.

I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 27 August 2012.

Associate:

Date: 27 August 2012

Assets
NAB bank account	$20,000
Company X Shares (28,000 due to vest Aug 2012)	$E870,000
Audi, P Pty Ltd	$E90,000 $Nil
Clothing and personal effects	$20,000
Husband’s Superannuation entitlements	$4,617,500
Total Assets	$5,617,500
Liabilities
Total income tax due April 2013 Income tax assessed and unpaid in previous yrs (Note: P Pty Ltd is a guarantor against the loan on the property B Road, Suburb T for $5,900,000.00)	($120,000) ($1,101,408)
Total Liabilities	($1,221,408)
Net Position	$4,396,092