Cabelo & Cabelo (No. 2)

[2021] FamCA 370

FAMILY COURT OF AUSTRALIA

Cabelo & Cabelo (No. 2) [2021] FamCA 370

File number(s):

MLC 3263 of 2018

Judgment of:

MACMILLAN J

Date of judgment:

7 June 2021

Catchwords:

FAMILY LAW – COSTS – where the wife seeks that the husband pay her costs in a fixed sum – where the wife’s Amended Application in a Case having been determined by McEvoy J – where the wife’s application for the costs of the hearing on 11 June 2020 be adjourned for hearing before McEvoy J.  

Legislation:

Family Law Act 1975 (Cth) s 117

Family Court Rules 2004 (Cth) r 19.18

Number of paragraphs:

10

Date of last submission/s:

28 July 2020

Date of hearing:

Written Submissions

Place:

Melbourne

Solicitor for the First Applicant:

Johnston Family Lawyers

Solicitor for the First Respondent:

Goldsmiths

Solicitor for the Proposed Second Respondent:

Grice Legal

ORDERS

MLC 3263 of 2018

BETWEEN:

MS CABELO

Applicant

AND:

MR CABELO
First Respondent

MR B CABELO
Proposed Second Respondent

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	7 JUNE 2021

THE COURT ORDERS THAT:

1.The Wife’s application for the costs of and incidental to the hearing on 11 June 2020 be adjourned for hearing before the Honourable Justice McEvoy at 10.00 am on 8 June 2021.

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

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

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

REASONS FOR JUDGMENT

MACMILLAN J

1. On 27 March 2018 the wife commenced proceedings in the Federal Circuit Court of Australia ("Federal Circuit Court"). On 19 December 2019 the wife filed an Application in a Case seeking orders inter alia vacating the five day final hearing in the Federal Circuit Court, interim parenting orders, discovery, the joinder of the husband's brother Mr B Cabelo ("the proposed second respondent") to the proceedings and for the matter to be transferred to the Family Court of Australia ("Family Court").

2. The matter was transferred to this Court on 28 January 2020 and on 1 April 2020 Registrar Mestrovic listed the wife’s Application in a Case for hearing in the Judicial Duty List on 11 June 2020.

3. On 10 June 2020 the day before the date fixed for hearing in the Judicial Duty List the wife filed an Amended Application in a Case (“Amended Application”) seeking various urgent injunctions against the husband and the proposed second respondent at the hearing the following day. It was this application, in particular the interim injunctive relief sought by the wife and the orders she sought for discovery that were the focus of the hearing on 11 June 2020.  

4. On 11 June 2020 I made various orders by consent including orders restraining the husband personally or in his capacity as an officeholder of any company in which he had an interest from selling, encumbering or otherwise altering his interest in three pieces of land which he had proposed be transferred to the proposed second respondent and orders for the production of documents. The parties and the proposed second respondent also agreed that the matter should be adjourned for further hearing on 11 August 2020 allowing time for the husband and the proposed second respondent to file answering material.  The parties could not agree upon the terms of the further injunctions sought by the wife.  On 10 July 2020 I delivered judgment and made the following orders:

   Pursuant to paragraph 4 of the Orders made on 11 June 2020 the husband personally and in his capacity as officeholder of any company is further restrained from selling, encumbering or otherwise altering his interests in any other real estate or water licenses save for and with the prior written consent of the wife.

   The husband be restrained from entering into or extending any loan facility or borrowing funds either personally or in his capacity as an officeholder of any corporate entity save for in the ordinary course of business, with capital works, capital improvements, land development and purchase of plant and equipment exceeding $5,000.00 in value being deemed not to be in the ordinary course of business.

   The husband personally and in his capacity as an officeholder of any company be restrained from entering into any transaction which has the effect of creating a debt, or increasing the level of indebtedness, in favour of Mr B Cabelo or any company or trust in which Mr B Cabelo holds an interest.

5. On that date I also made orders for the parties to file and serve written submissions in support of any application for costs. On 28 July 2020 the wife filed written submissions in support of her application that the husband pay her costs “thrown away” in the sum of $35,371.00.   

   LEGAL PRINCIPLES

6. Pursuant to s 117(1) of the Family Law Act 1975 (Cth) ("The Act") the general rule is that the parties to proceedings pursuant to the Act each bear their own costs. However, if satisfied that there are circumstances that justify it doing so the Court can make such order as to costs as it considers just (s 117(2)). In considering what, if any, order should be made the court must have regard to the matters in s 117(2A) of the Act.

   WIFE’S CASE

7. It is the wife’s case that the costs of her Amended Application and the hearing on 11 June 2020 were thrown away because of the husband’s actions and in particular his notice to the wife that he intended to dispose of his interest in the three real properties at C Town. And, that as a result of the husband’s conduct she had no alternative but to issue an Amended Application the day before the hearing seeking further injunctive relief and had to focus on that relief rather than the relief sought when she filed her Application in a Case.  

8. I do not accept that the wife’s costs of the Amended Application have been thrown away. The wife’s application for further injunctive relief in her Amended Application was heard and determined and holding orders made pending an adjourned hearing. An adjournment to allow the husband to file answering material was inevitable in circumstances where the wife had filed her Amended Application the day before the hearing, even if that was as a result of the husband’s conduct.  Although the husband could have consented on the day it would be difficult for the wife to submit, given the timing of her Amended Application, that the husband could have filed answering material for the purposes of the hearing on the 11 June 2020 or that the hearing on that date could have been avoided.  At most what the wife lost was the opportunity to have the orders she sought in her initial Application in a Case determined on 11 June 2020.  

9. As conceded by the wife, the husband not having had the opportunity to file answering material, the Court was not in a position to make any findings of fact. In these circumstances whilst being satisfied that there was a prima facie case that the transactions proposed by the husband might defeat the wife’s claim for a property settlement the orders that were made were holding orders pending the husband filing answering material and the Court having the opportunity to consider all of the evidence.  In my view it is when the Court has had the opportunity to consider that evidence that it can determine whether an order that the husband pay the wife’s costs of that Amended Application, including the costs of the hearing on 11 June 2020, is justified.

10. Although when I made orders for the parties to file submissions with respect to any application for costs having reflected upon the matter I am satisfied that the proper course is to adjourn the wife’s application for her costs of the hearing on 11 June 2020 for hearing before McEvoy J who has had the benefit of the evidence of both the husband and the wife and is in my view better placed to determine what if any orders for costs the Court should make.     

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan.

Associate:

Dated: 7 June 2021