BULOW & BULOW - [2018] FamCAFC 157

FAMILY COURT OF AUSTRALIA

BULOW & BULOW

[2018] FamCAFC 157

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the husband gave sworn evidence that he had the funds to meet an order for costs should his appeal be unsuccessful – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – NOTICE TO ADMIT – Where there is no basis for the orders sought by the husband to be made – Where the application is irrelevant to the primary application before the court – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – EXTEND TIME TO FILE – Where the husband seeks an extension of time to file his summary of argument – Extension of time granted as sought.

FAMILY LAW – COSTS – Where the wife seeks her costs relying on the husband’s conduct – Where the application was only brought because the husband refused to provide the necessary financial information to satisfy the wife as to his ability to meet an order for costs if necessary – Order for costs made.

Family Law Act 1975 (Cth) s 117
APPLICANT/RESPONDENT:	Ms Bulow

RESPONDENT/APPLICANT:

Mr Bulow

FILE NUMBER:

ADC

1674

2014

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

8 August 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

8 August 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 November 2017

LOWER COURT MNC:

[2017] FCCA 2657

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms DuBarry

SOLICITOR FOR THE APPELLANT:

Tindall Gask Bentley Lawyers

THE RESPONDENT:

In person

Orders

The Application in an Appeal filed by the husband on 7 August 2018 be dismissed.
Paragraphs 2 – 8 inclusive of the Response to an Application in an Appeal filed by the husband on 7 August 2018 be dismissed.
The Application in an Appeal filed by the wife on 11 July 2018 be dismissed.
The time for the husband to file and serve his summary of argument be extended to the close of business on Friday 10 August 2018.
The husband pay the costs of the wife of and incidental to her Application in an Appeal filed on 11 July 2018 fixed in the sum of FIVE THOUSAND DOLLARS [$5,000].

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

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

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 3 of 2017
File Number: ADC 1674 of 2014

Ms Bulow

Applicant/Respondent

And

Mr Bulow

Respondent/Applicant

EX TEMPORE REASONS FOR JUDGMENT

There are a number of applications before the Court today. The primary application is an application in an appeal filed by Ms Bulow (“the wife”) on 11 July 2018, together with a supporting affidavit, seeking an order for security for costs.
Mr Bulow (“the husband”) responded to that application in a Response to an Application in an Appeal filed on 7 August 2018. In his Response the husband sought various other orders apart from dismissal of the wife’s application, and I will come back to those other orders in a moment.
Separate to that, the husband filed an application in an appeal on 7 August 2018, in summary, seeking orders in relation to a Notice to Admit, and other orders identifying facts which the husband sought that the wife concede. Dealing with that application, as I have indicated earlier today when addressing the husband in relation to it, there is no basis for orders to be made in the terms sought. The issues raised in relation to the Notice to Admit, and the facts sought to be conceded were, in my view, matters that were irrelevant to the primary application that was before the Court today and, in any event, in the appeal context, it is not appropriate to seek to utilise processes such as Notices to Admit. Thus, I propose to dismiss that application.
In relation to the other orders sought by the husband in his response filed on 7 August 2018, and specifically paragraphs 2 through 8 inclusive, I propose to dismiss the application insofar as those orders are sought. The orders sought were not orders that could be made by this Court. For example, two of the orders sought that this Court caution the wife and her solicitors against further actions, and making wilful statements and, as is obvious, they are not orders that this Court could, or should, make. And in those paragraphs, the issue of the response to a Notice to Admit was again raised, and I have dealt with that separately.
Coming then to the application in an appeal filed by the wife seeking an order for security for costs. Initially I raised with the husband what his financial circumstances were given that, in my view, in applications such as this, the crucial question is whether the respondent to the application has the wherewithal to meet an order for costs if the appeal is dismissed, and if an order for costs is made. The husband informed me of his financial circumstances such that he said that he had in excess of $100,000 in a bank account, and that money came from the money he received pursuant to the orders made by the trial judge, together with orders for partial property settlement. The husband indicated that he was keeping that money in that bank account because he was still facing an application for the costs of the trial and, of course, he had the costs of the appeal. He even went so far as to indicate that he would give an undertaking to retain that money in that account.
I stood the matter down for the purpose of the wife’s counsel obtaining instructions, but, unfortunately, it was not possible to resolve the matter, and the application has proceeded. In particular, the husband was not prepared to reveal the details of his bank account in which he said he had this money.
However, partway through the hearing I requested the husband to provide me with the specific details of the account that he said he had, and he did that. I then required him to go into the witness box and to repeat under oath the details of that bank account. The husband also at my request showed the details of that account to the wife’s counsel.
That satisfied me that the husband had the wherewithal to meet an order for costs in the event that the appeal was dismissed, and in the event an order for costs was made against him. I indicated that I proposed to dismiss the application, and the wife’s counsel did not speak against that in the circumstances. Thus, to repeat, I propose to dismiss the application.
The wife has now sought an order for costs in relation to the application, primarily for one reason, and that is the history of the matter. By that I mean, in terms of the litigation, what occurred at the trial before the primary judge, and specifically referring to the trial judge finding that the husband had failed to make full and frank disclosure, and the fact that there were a number of costs orders made against the husband along the way for failure to comply with the requirements of the Court.
The wife’s solicitors also sought financial information from the husband in relation to the appeal. It seems, and it is not disputed, that the husband failed to provide that information, and faced with that and an obvious concern whether the husband did have the financial wherewithal to meet an order for costs if the appeal was dismissed, the wife then instructed her legal advisors to institute the application seeking security for costs.
Thus, it comes down to relying on the conduct of the husband in that regard as a basis, and a justification for an order for costs being made in favour of the wife.
Section 117 of the Family Law Act 1975 (Cth ) (“the Act”) governs the question of costs, and pursuant to s 117(2) of the Act, if there are circumstances that justify an order for costs being made, then this Court can make such an order.
The factors that the Court can have regard to in considering making an order for costs, if appropriate, are set out in s 117(2A) of the Act. And, as I say, the factor specifically relied upon is the conduct of the husband in relation to this application, and that arises in s 117(2A)(c).
The husband has opposed the application for costs.
He says that the application for security for costs was unnecessary, and he says that he has complaints and criticisms of the wife’s conduct, certainly in the earlier proceedings. The husband was not able to put anything in relation to just this discrete application, but with respect to the husband, that misses the point. It is apparent to me that the primary, and indeed the only reason why this application was taken, was because of the husband’s refusal to provide the necessary financial information which would have satisfied the wife as to his wherewithal to meet an order for costs if necessary.
The husband says that he is pursuing an appeal which he anticipates from his point of view will be successful, but, of course, there can be no guarantees about that. As I said during submissions, if the husband had supplied the necessary financial information, and despite that, the wife had pursued an application for costs, then that application would have been summarily dismissed, and, indeed, if the husband had incurred any legal costs in relation to that, he would have been well within his rights to make an application for his costs to be paid. That highlights the issue and, indeed, why there should be an order for costs.
In addition to the matters that I have outlined and dealt with above, there was an application in an appeal filed by the husband on 2 August 2018 in which he in effect sought an extension of time to file his summary of argument, and he sought directions in relation to what he described as volume 2 of the appeal books. Dealing with that aspect, what the husband is referring to there is that the appeal registrar refused to allow him to rely on certain documents in the appeal but, as is the usual course, permitted the husband to file a supplementary appeal book comprising those documents, on the basis that at the hearing of the appeal the husband could seek leave of the Appeal Court to rely on those documents in the supplementary appeal book.
I do not need to take that any further, but in relation to the extension of time application, I am prepared to grant an extension of time. I note also that the husband has filed his appeal book, but there are some matters which the appeal registrar has required him to attend to, and the husband has indicated that he can attend to them within 24 hours. I do not need to make any order about that, but in relation to the summary of argument, I propose to provide an extension of time to the close of business on Friday 10 August 2018.

I certify that the preceding eighteen (18) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 8 August 2018.

Associate:

Date: 20 August 2018