Byrd and Byrd and Ors

FAMILY COURT OF AUSTRALIA

BYRD & BYRD AND ORS

[2010] FamCA 547

FAMILY LAW – PROPERTY – Where orders were made by consent finalising property settlement issues – Where a notation recorded an intention to enter a private child support agreement – Husband makes application pursuant to s 79A to set aside the orders – s 79A application rests on miscarriage of justice and default in carrying out an obligation – Wife seeks summary dismissal of the s 79A application – Agreement between parties that no written child support agreement has been entered in to – Consideration of the status of the notation – Consideration of what, if any, injustice is occasioned to the husband – Application dismissed
FAMILY LAW – COSTS – Husband wholly unsuccessful – Order to pay the wife’s costs – Payment of costs to occur from the proceeds of an ordered sale in the s 79 orders

Family Law Act 1975 (Cth) ss 78, 79, 79A, 117

Bain Pacific Associations and Others & Kelly and Others (2006) FLC 93-270
Bigg & Suzi (1998) FLC 92-799
Codelfa Constructions Pty Ltd & The State Rail Authority (NSW) (1982) 145 CLR 145
In the Marriage ofMorrison (1995) FLC 92-573
In the Marriage of Prowse (1995) FLC 92-557
Lindon & The Commonwealth (No 2) [1996] HCA 14
Pelerman & Pelerman (2000) FLC 93-037

APPLICANT:

Ms Byrd

RESPONDENT:

Mr Byrd

2^nd RESPONDENTS:

Mr and Mrs Byrd (Snr)

FILE NUMBER:

BRC

5543

2008

DATE DELIVERED:

17 June 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

17 June 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Farnell

SOLICITORS FOR THE APPLICANT:

Family Law Solutions

COUNSEL FOR THE RESPONDENT:

Mr Page SC

SOLICITOR FOR THE RESPONDENT:

Berry Family Law

2^ND RESPONDENTS:

No appearances

Orders

The husband’s Amended Initiating Application filed 15 February 2010 be dismissed.
The husband pay the wife’s costs of and incidental to the dismissed application with such payment of costs to be met from the sale of the yacht currently being undertaken by the husband.
The application contained in Order 2 sought in the Response to an Initiating Application filed by the wife on 27 October 2009 be listed before a Registrar of the Brisbane Registry of the Family Court of Australia on a date and at a time to be advised.

IT IS NOTED that publication of this judgment under the pseudonym Byrd & Byrd and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5543 of 2008

MS BYRD

Applicant

And

MR BYRD

Respondent

And

MR AND MRS BYRD (SNR)

2^nd Respondents

EX TEMPORE

REASONS FOR JUDGMENT

Some four years ago the wife filed an amended application in this court seeking orders for property settlement, child support departure, and other orders. Subsequently, an issue arose whereby the wife sought a declaration pursuant to section 78 of the Family Law Act 1975 (Cth) (“the Act”) in respect of a property owned by the husband's parents situated at B.
On 15 February 2008 O'Reilly J made an order that:
The wife's claim for a declaration that the property at [B] is held by the husband's parents on trust for the husband and wife and consequential orders be heard and determined as a preliminary and discrete issue before the section 79 proceedings between the husband and the wife and be listed for hearing at 10 am on 16, 17, and 18 June 2008 as fixed dates.
On the first of those three trial dates when all parties, including the husband's parents, were present and each represented by experienced counsel, orders were sought and made by consent.
Those orders brought to an end the proceedings against the husband's parents. They provided relevantly:
(2) The amended application of the wife filed on 14 July 2006 for a declaration pursuant to section 78 of the Family Law Act 1975 (Commonwealth) be dismissed.
(3) That any cross-application by the husband and the second respondents in respect to costs be dismissed.
(4) Leave be granted to the second respondents to make an oral application for costs arising from the dismissal of the wife's application for a section 78 declaration.
(5) In the event that no appeal is brought against the order dismissing the section 78 declaration within the time prescribed or such longer time as might be allowed the said application for costs by the second respondents be dismissed with no order for costs in respect of that costs application.
Minutes of consent were, in addition, signed by the parties and made as orders the same day. The terms of those orders will be referred to in detail below. An additional order also made by consent provided:
(6) All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
The minutes of consent, ultimately made as orders, provided:
BY CONSENT OF THE APPLICANT WIFE AND FIRST REPSONDENT HUSBAND IT BE ORDERED BY WAY OF FINAL PROPERTY SETTLEMENT THAT:
1.The commercial factory warehouses being the real property situated at [W] (“the warehouses”) (held in the Wife’s sole name) be retained by the Wife and that she be solely responsible for and indemnify the Husband in respect of any encumbrance secured against it or any tax liability arising howsoever including in respect of its sale and in the event that the existing liability in the form of a line of credit provided by the St George Bank shall not be repaid in full within one year of the date of this order, the wife shall refinance such facility so as to discharge the husband from any liability including any guarantee given by him.
2.By way of security for the indemnity provided to the Husband in terms of paragraph 1 hereof, the wife acknowledges the existence of a charge in favour of the husband over the warehouses which charge is in the amount paid by the husband pursuant to any guarantee and shall be extinguished by the payment in full to the St George Bank of the line of credit and interest thereon or upon the refinance of that facility by the wife.
3.Subject to paragraph 2 hereof, the Husband acknowledges that he loses all and any legal or equitable interest in the warehouses and has no interest in same.
4.The sailing yacht known as […] (“the yacht”) (held in the Husband’s sole name) be retained by the Husband subject to order 5 herein and that he be solely responsible for and indemnify the Wife in respect of any current or future fees, charges or costs associated with its mooring, maintenance and sale.
5.On or before 16 June 2009, the Husband shall pay to the trust account of the Wife’s solicitors the sum of $50,000 and on such payment being made, the Wife shall lose any legal or equitable interest in the yacht.
6.Should-
a.The Husband sell or otherwise transfer the yacht prior to 16 June 2009; and
b.As at the date of transfer or sale the Husband has not paid to the Wife the sum of $50,000 pursuant to order 5 therein;
Then the Husband hereby acknowledges the existences of a charge and debt to the Wife in the amount of $50,000 secured against the yacht (and the Wife can rely on these orders as proof of a charge secured against the yacht in these or any other proceedings) and he shall do all things necessary to effect a $50,000 payment to the Wife from the proceeds of sale at settlement.
7.The Husband is to give the Wife not less than 30 days written notice with full particulars of any intention to sell or transfer the yacht prior to the payment to the Wife of $50,000 pursuant to order 6 herein.
8.The Wife’s charge against the yacht pursuant to order 6 herein shall continue and be in force until the payment of the $50,000 pursuant to order 5 herein.
9.Within 30 days of the date of these orders the parties sign all documents and the transferee pay all costs (if any) as to effect an equal distribution between them of the number of [M] shares currently the property of the parties.
10.That a base amount be allocated out of the husband’s interest in the [Byrd] Family Superannuation Fund as required by Section 90MT(4) of the Family Law Act so as to provide to the wife 50% of the total entitlement of the husband and the wife in that fund;
11.In accordance with paragraph 90MT(1)(a):
a.The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001: and
b.The husband’s entitlement is correspondingly reduced.
12.The Trustees of the [Byrd] Family Superannuation Fund (“the trustee”) shall do all such things and sign all such documents as may be necessary to:
a.calculate in accordance with the requirements of the Family Law Act and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife in paragraph 11 of this order: and
b.pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the said fund
13.This order have effect from the operative time and the operative time for this order is the date of this order.
14.The parties thereafter co-operate and sign all documents as may be reasonably necessary to-
a.Permit the Wife to roll out or otherwise transfer her interest in the [Byrd] Family Superannuation Fund to a fund of her choice; and
b.For the Wife to resign all offices and roles she may have (including but not limited to as a trustee) of the said fund
15.Save as otherwise dealt with in these orders or any undischarged orders of this Court, the parties shall each retain each to their own respective sole use all such property and chattels howsoever described, choses in action and entitlements (including but not limited to bank accounts and superannuation in their sole name) as is currently in their sole possession, custody or control.
16.The wife shall forthwith and at her cost do all such things and execute all such documents necessary to withdraw any caveat lodged by her against the property at [B].
17.The husband shall forthwith and at his cost do all such things and execute all such documents necessary to withdraw any caveat lodged by him against the properties at [W].
18.The Husband shall indemnify the Wife against and keep her indemnified against all such costs orders as the Second Respondents may or do obtain against the Wife in these proceedings in this Court.
19.All applications between the husband and the wife be dismissed.
20.There be no order as to costs as between the Wife and Husband.
NOTATION
A.It is the intention of the parties to do all things reasonably necessary to enter into a private agreement as to child support whereby the Husband is to pay 100% of the private school fees for the children’s schooling and 50% of the further therapy fees required for their child, [J] (born […] January 1996).
The husband now makes application pursuant to section 79A of the Act as follows to set aside those orders:
(1) That pursuant to section 79A(1)(c) of the Family Law Act the orders made by consent in this Honourable court on 16 April 2008 be set aside.
(2) That this Honourable court make such further or other orders for property settlement as may be deemed appropriate.
(3) That there be an accounting of the assets, superannuation, liabilities, and financial resources of the husband and the wife.
(4) That the applicant have leave to particularise his claim for proper orders once the pool has been determined.
(5) That the respondent wife pay the applicant's costs of and incidental to this application.

The Grounds Relied Upon

In a written outline handed up at the commencement of the hearing before me Senior Counsel for the husband asserts that a second ground provided for in section 79A is relied upon. The outline provides:
The second basis for the application is that there has been a miscarriage of justice in the course of the making of this order based upon a particular circumstance. That circumstance is the disclosure by the wife that in the course of the making of those orders she did not consider the question of child support to have been finally resolved either in terms of the orders which she sought or otherwise.
I raised with Ms Farnell, who appears on behalf of the wife before me today, that the paragraph just referred to would appear to rely upon a ground additional to that relied upon in the amended application filed by the husband (viz s 79A(1)(a)).
In discussion that occurred between the bar table and bench reference was made to the fact that this court is no longer a court of pleadings. As such, the applications and, indeed, responses filed by parties to proceedings in this court cannot, in my view, be regarded as pleadings in the strict sense. The “cause” or “causes” raised by the filed documents of each of the parties needs to be determined by reference not only to the applications but also to the affidavit material filed in support of that application.
Ultimately, the solicitor for the wife accepted that no prejudice in the relevant sense, or surprise in the relevant sense, was occasioned in that the wife was able to meet such arguments as were advanced in the written outline in respect of the ground additional to that contained in the application.
The two grounds relied upon, then, by the husband by reference to the section are those contained in subparagraphs (a) and (c) of section 79A.
Of particular relevance to the instant application are the terms of the minutes of consent contained at paragraphs (5) and (19) and in particular the notation to those minutes. They respectively provide:
(5) On or before 16 June 2009 the husband shall pay to the trust account of the wife's solicitors the sum of $50,000 and on such payment being made the wife shall lose any legal or equitable interest in the yacht.
…
(19) All applications between the husband and the wife be dismissed.
…
Notation:
A. It is the intention of the parties to do all things reasonably necessary to enter into a private agreement as to child support whereby the husband is to pay 100 per cent of the private school fees for the children's schooling and 50 per cent of the further therapy fees required for their child, [J], born […] January 1996.

Applicable Principles

The parties each refer to authorities binding upon me which refer to the principles and procedure applicable to cases of this type. In particular, reference is made to the decision of the High Court in Lindon & The Commonwealth (No 2) [1996] HCA 14; Bigg & Suzi (1998) FLC 92-799, and Pelerman & Pelerman (2000) FLC 93-037.
The Full Court in Bain Pacific Associations and Others & Kelly and Others (2006) FLC 93-270, held at para 21:
In considering whether Rose J did misapply the relevant principle we accept the proposition as we understand it to be put by counsel for the investors that apart from material in the case of the respondent to an application for summary dismissal the court may have regard to relevant non-contentious facts even if raised by the applicant for summary dismissal.
The Full Court also said, at paragraph 31:
Secondly, and of particular relevance to an application for summary dismissal once it is conceded that an order as sought is within power the argument in support of summary dismissal is rendered extremely difficult.
That principle can also be seen enunciated in other decisions binding upon me. The decision of the Full Court in Pelerman & Pelerman summarised, helpfully, the principles relevant to cases of this type, at paragraph 46 as follows:
It is well-established that the following principles apply as were recently reviewed and stated in Big & Suzi (1998) FLC 92-799:
(a) the power for summary dismissal is a discretionary one;
(b) relief "is rarely and sparingly provided";
(c) the parties seeking summary dismissal must show that the application "is doomed to fail" or has been otherwise described "that the opponent lacks a reasonable cause of action or advancing a claim that is clearly frivolous or vexatious";
(d) a weak case or one that is unlikely to succeed is not "sufficient to warrant termination";
(e) if there is a serious legal question to be determined, it should ordinarily be determined at a trial";
(f) "if not withstanding the defects of pleadings it appears that a party may have a reasonable cause of action which it has failed to put in proper form a court will ordinarily allow that party to reframe its pleadings."
It is important to observe, then, that the instant application is not about whether the section 79A application is sustainable per se, but rather, whether on the non-contentious facts and the facts presented by the respondent any such case sought to be run by him is doomed to fail.

Factual Background

The essential factual background against which the decision in this case must be made can be simply stated. The parties agree that they have not entered into a "private agreement" (whatever that expression might mean) in respect of child support as set out in the notation to the orders.
It is also accepted that the solicitors for the husband provided to the solicitors for the wife a form of "private agreement" which, to quote from the husband’s written submissions, was in the form of a "binding child support agreement" purporting to be consistent with the terms of the notation to the order made on 16 June 2008 and consistent with the terms of the order which provided finality to the financial matters between the parties."
It will be seen that the facts, as expressed, assert that the agreement forwarded by the husband to the solicitors for the wife is an agreement "purporting to be consistent with the terms of the notation to the order" and "consistent with the terms of the order which provided finality to the financial matters between the parties".
The matters just quoted are, of course, matters of argument. The uncontested fact, however, is that a form of child support agreement was provided by the husband to the wife and was not signed by the wife. It is also accepted that, thereafter, the wife advised the husband through their respective solicitors that she did not consider that the notation to the orders earlier referred to and its reference to a private agreement, concluded the husband's obligations for child support.
It is also accepted that the husband has not paid the $50,000 provided for at paragraph (5) of the minutes of consent, and that the husband has been paying 100 per cent of the private school fees for the children and 50 per cent of J’s therapy fees, each of which are specifically contemplated in the notation to the orders.
Against that factual background Mr Page SC says that the essential basis for the husband's claim pursuant to s 79A can be found in paragraphs of his affidavit as follows:
(13) I instructed my Senior Counsel and my solicitor to seek resolution of the trial on the basis that all of my financial arrangements with [the wife] would be settled collectively and contemporaneously.
(14) An integral part of the negotiation occurring to resolve all matters was agreement on future child support.
(15) When an agreement, including future child support, was reached the trial did not need to proceed.
(16) It was always the case that the agreement reached with [the wife] on the day of trial encompassed all of the financial aspects of our relationship including child support.
(17) I was prepared to offer [the wife] more in property settlement than I was told was fair if child support was locked in by the agreement we reached.
…
(19) I held the view that the overall agreement was fair as it resolved my future child support obligations.

Arguments and Discussion

The argument on behalf of the husband can be seen expressed on his behalf in Mr Page's written submissions as follows:
… the argument is that the finalisation of the child support matters was a fundamental term of the settlement between the parties. Orders could have been sought reliant upon section 117 of the Child Support Assessment Act and the court asked to make the necessary findings to support such orders. That was not the way the parties agreed to determine the matter. The fact that they agreed to enter into a child support agreement is consistent with their wish to finalise all financial matters between them, including child support. The wife has defaulted by refusing to sign an agreement having that effect. The husband has, as a result, defaulted in the payment required to be made by the order. It is that default seen in the context of the breach of the agreement by the wife that provides a basis for his application. [emphases added by me]

A number of observations should be made about this central argument which, as expressed, provides the "basis" for the husband's application.
First and fundamentally, a notation to an order has no operative effect as an order of the court.
Secondly, while the parties may or may not have wished to end child support, nothing contained in the orders as made by the court purports to do so. They did not enter into any orders or, indeed, seek from the court any orders in respect of child support, save that an order was made by consent that all outstanding applications, which included the application for child support departure, should be dismissed.
Next, the terms of the notation are, in my view, in any event, important. They do not provide, as they might have, that the parties intend to bring an end to their child support obligations, whatever they might be. The orders do not purport to attach, as often occurs in this court, the terms of any intended child support agreement, nor are the terms of any child support agreement, other than the two referred to in the notation, referred to either as having been agreed or as having been the subject of discussions. The only two matters referred to in the notation are private school fees and therapy fees.
Next, in my view, it cannot be said, as argued on behalf of the husband, that the orders as submitted were orders designed to bring an end to the financial relationship between the parties in its entirety. The terms of the orders, in my view, make it plain that this is not so. On the other hand, by the parties each seeking consent orders with respect to s 79 of the Act, each of them implicitly (by handing to the court orders pursuant to s 79 and each seeking from the court that the orders be made) submit that the orders are just and equitable. They must be doing so because that is the only basis upon which they can contend that orders pursuant to s 79 can be made.
So much is plain from the Act and the process itself, but is also made explicit by the prelude to the minutes of consent signed by the parties which indicates that the minutes are intended to be made orders "by way of final property settlement".
It is submitted by the husband in the paragraph earlier quoted that the court could have been "asked to make necessary findings to support [child support] orders". The submission goes on that was not the way the parties agreed to determine "the matter". But what is plain, as it seems to me, from the fact of the submission of detailed orders with respect to settlement of property is that the parties intended to bring to an end the issue of settlement of property by the making of those orders.
Further, contrary to that which is submitted at the paragraph quoted, the parties did not, in my view, agree to "enter into a child support agreement". The parties intended, as is plain by the terms of the notation, to enter into a "private agreement", an expression undefined by the minutes.
Moreover, contrary to the submissions that it was "their wish to finalise all financial matters between them, including child support" the notation makes no reference whatsoever to an intention to finalise child support. Indeed, the notation makes no mention of any child support issues apart from two specific issues (which may, or may not, have formed part of a departure application).
In my view, the notation is nothing more than a notation indicating future intent with respect to an issue erstwhile live between the parties, but separate and distinct from the s 79 orders that were made by the court consequent upon the agreement of the parties. It is nothing more than an indication that, in the context of final orders for settlement of property and a consent order that the application for child support departure be dismissed, that it was intended that the parties would enter into discussions and hopefully agree upon the two child support issues mentioned specifically in the notation.
Additionally, s 79A(1)(c) provides importantly, as it seems to me, in the context of the issues under discussion and the arguments made on behalf of the husband that:
A person has defaulted in carrying out an obligation imposed on the person by the order and in the circumstances that have arisen as a result of that default it is just and equitable to vary the order or to set aside the order and make another order in substitution for the order.
I can see no evidence before me that persuades me that the husband could make out a case that there have been "circumstances that have arisen as a result of [a] default” either as expressed in argument or if expressed as the husband's default in paying the $50,000, such as to justify any just and equitable variation or setting aside of the order.
There is, in my view, an attempt to conflate an obligation squarely placed upon a party pursuant to enforceable orders of the court; namely the obligation to pay $50,000 as part of a property settlement effected between the parties, and a notation which is not an order, nor effective or enforceable as an order. In my view, that conflation is central to the arguments sought to be addressed on the future section 79A application of the husband, and in my view, stands no prospects of success.
This is not a case where it can be said that the husband confronts significant difficulties or that he might have a "weak case" in respect of this aspect of the claim. Rather, in my view, it can be said that the application is, for the reasons I've just outlined, "doomed to fail" as that expression is used in the authorities.
At paragraph 17 of the husband's outline it is argued as follows:
It has been stated above that the basis of the husband's application under section 79A is as a result of a miscarriage of justice arising from the purported misunderstanding by the wife of the basis of the settlement. Its real basis is that the order required there to be an agreement entered into in relation to child support …
Paragraph 18 of the outline goes on to argue:
It is a fundamental term of the agreement that was announced to the court and accepted by the parties as the final determination of financial matters between them that they would enter into a private agreement as to child support in terms of the notation. The wife breached that term by refusing to enter into a child support agreement that was consistent with the settlement.
For reasons already given it will, I think, be plain that in my view it cannot be successfully argued that "the order required there to be an agreement entered into in relation to child support". The orders required no such thing. The notation referred to such a topic but, as earlier indicated, the notation is not part of the orders, nor of itself an enforceable order.
Reliance is placed by Mr Page SC upon the decision of the High Court in Codelfa Constructions Pty Ltd & The State Rail Authority (NSW) (1982) 145 CLR 145, particularly in the judgment of Mason J at 348. It seems to me, though, that what was said by his Honour there is plainly distinguishable from the circumstances of this case.
Here, there is, in my view, no uncertainty about the terms of the orders that need to be clarified by reference to the notation. The orders are, in my view, clear in their terms. The notation is not needed, in my view, to assist in their interpretation or to assist in the understanding of them.
At paragraph 20 it is argued that:
There was no question that the issue of child support was a matter that was before the court and it was simply the terms upon which the parties elected to resolve that issue that prevented an order being made. It was equally open to the parties to have orders made under section 117 and to have made submissions in relation to the various findings that were necessary to make those orders. They chose not to do that.
In my view, the argument there made does not assist the husband. If anything, it detracts from the argument sought to be made on his behalf. Contrary to that which is submitted it is, in my view, incorrect to say that there were circumstances that "prevented an order being made" with respect to the application for child support. An order was made with respect to the application for child support departure; an order was made by consent dismissing it. The notation to the orders had no impact upon the application for child support departure for the very reason that the notations were neither orders nor formed part of the operative orders.
Further, and in any event, putting the evidence of the husband at its highest I cannot identify any injustice or any miscarriage of justice as referred to in the first of the subparagraphs to that section.
That matter is relevant, in my view, not only to the ground itself, but to an additional matter equally important in the hearing of any mooted s 79A application. It is plain that on any such application the court retains a residual discretion even in circumstances where one or more grounds in the section are made out (see In the Marriage of Prowse (1995) FLC 92-557 and In the Marriage ofMorrison (1995) FLC 92-573).
I accept that a court hearing an application for summary dismissal ought not significantly embark upon a consideration of the residual discretion which would depend upon a number of circumstances applicable to a court ultimately hearing the application of a s 79A. However, in considering complete lack of success it is plainly an issue that needs to be referred to, bearing in mind of course the test outlined in Lindon, Bigg & Suzi, and Pelerman earlier referred to.
In this case I note that the application by the husband does not say - nor, indeed, does his affidavit material say - what orders ought be made by the court if the current orders are to be set aside. Indeed, in terms, the application by the husband would also see the setting aside of the dismissal of the application by the wife in respect of the declaration of trust in respect of the husband's parents' property.
I find it difficult to see, on the evidence before me, what injustice is asserted on the part of the husband within the context currently under discussion.
It is an agreed fact that he has been paying the school fees and therapy fees referred to in the notation. It is also an agreed fact that there has been no other application for departure sought by the wife.
In those circumstances I can see nothing in the evidence before me that would suggest that any injustice has been occasioned to the husband even if, contrary to that which I have already found, a ground was made out. I would be inclined to summarily dismiss the application, in any event, on the basis that the husband's case is doomed to fail with respect to the residual discretion. However, for reasons earlier outlined, it's not necessary for me to make a final determination on that specific issue.
In that latter respect it seems to me pertinent to observe that, as is submitted on behalf of the wife in the written submissions submitted on her behalf:
… The parties have had a private agreement as to child support, albeit not a written one.
At paragraph 27 of his affidavit the husband says he has been "meeting all of the children's education costs and in addition to that I had been meeting at least half of [J’s] therapy fees" (i.e. the very payments contemplated by the notation). At paragraph 28 of his affidavit the husband says:
Since the consent orders neither [the wife] nor I had (sic) made an application for an administrative assessment for child support.
Even on the husband's own case he has not been required to pay any child support in addition to the school fees and 50 per cent of J’s therapy.
For the reasons just outlined, in my view, it is possible to conclude that the application by the husband pursuant to s 79A of the Act is doomed to fail within the meaning of the authorities which bind me.
On that basis, I dismiss the amended initiating application filed by him on 15 February 2010.
The Family Law Act provides, at s 117(1), the mandatory position with respect to costs; parties to proceedings should each bear their own.
That general rule can be departed from in circumstances where, having regard to the matters listed in section 117(2A) of the Act, the court, in its discretion, considers that it is appropriate to make an award of costs.
By reference to those matters, in these proceedings it can be said, in my view, that the husband has been wholly unsuccessful in this application and in contrast the wife wholly successful.
Secondly, the positions of the respective parties were set out in correspondence passing between solicitors. Each were on notice of, and able to consider, the merits or otherwise of proceeding.
Parties are entitled to rely upon the sanctity of orders, particularly property orders in respect of which the circumstances relating to their variation or setting aside are of very narrow ambit.
As a result, it seems to me that if a party embarks upon an application with respect to s 79A which is wholly unsuccessful then, in the usual course, a party does so at some peril of an order for costs in circumstances where that party is ultimately wholly unsuccessful.
I therefore make it plain that those factors are the predominant factors in the exercise of my discretion to order costs.
I have taken into account the respective financial circumstances of each of the parties evident in the material before me. In terms of income it seems to me that the evidence reveals that neither of the parties can be said to be in a particularly healthy position. It seems to me in the exercise of my discretion that any order I make for costs should reflect that circumstance and, the specific submissions on behalf of the husband in that respect can be met by ordering that any costs be met from the sale of the boat currently being undertaken.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 5 July 2010

[2010] FamCA 547

17 June 2010

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Jurisdiction

Procedural Fairness