Causoski and Causoski
[2006] FMCAfam 591
•2 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAUSOSKI & CAUSOSKI | [2006] FMCAfam 591 |
| FAMILY LAW – Divorce – Proceedings in Australia and Macedonia – no notice to the Court or Wife of foreign proceedings – multiplicity of proceedings – Macedonian Court misled – costs. |
| Family Law Act 1975, ss.4, 104(1), (3)(d), 117(1), (2), (2A) Federal Magistrates Court Rules, rr.21.10, 21.15 and 21.16 |
| Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Penfold v Penfold (1980) 144 CLR 311 RNL & RHB [2005] FMCAfam 520 |
| Applicant: | ZIVKO CAUSOSKI |
| Respondent: | VESELA CAUSOSKI |
| File Number: | SYM 2296 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 12 October 2006 |
| Date of Last Submission: | 12 October 2006 |
| Delivered at: | Perth (by videolink to Sydney) |
| Delivered on: | 2 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Husseini, Solicitor |
| Solicitors for the Applicant: | H.K. Husseini & Co |
| Counsel for the Respondent: | Mr King |
| Solicitors for the Respondent: | Willis & Bowring |
ORDERS
The Applicant Husband pay to the Respondent Wife costs fixed in the sum of $3,580.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM2296 of 2006
| ZIVKO CAUSOSKI |
Applicant
And
| VESELA CAUSOSKI |
Respondent
REASONS FOR JUDGMENT
Costs application
On 12 May 2006 Federal Magistrate Sexton granted leave to the Respondent Wife to make an oral application for the costs of the preparation for hearing and appearances on 7 April 2006 and 12 May 2006, with the application to be adjourned to 12 October 2006.
On 12 October 2006 I heard the application for costs.
The history of the matter in the Federal Magistrates Court
On 19 January 2006 the Applicant Husband applied for a divorce from the Respondent Wife with whom he had married in Prilep in Macedonia on 13 November 1996.[1]
[1] Application for Divorce, 18 January 2006, questions 1 and 15.
The Application for Divorce indicated that the Husband and Wife separated on 4 April 2002.[2] The Application for Divorce further indicated that the Husband and Wife had lived under the same roof, but not lived together as husband and wife, since the time of separation.[3]
[2] Application for Divorce, question 16
[3] Application for Divorce, questions 18 and 19.
The Husband affirmed that the facts of which he had personal knowledge were true, and that all other facts were true to the best of his knowledge, information and belief.[4]
[4] Application for Divorce, Part I.
The Husband swore an affidavit on 18 June 2006, being an affidavit as to separation under one roof. In that affidavit he indicated that he left Australia for Macedonia for 3 months on or about 4 June 2002, and then returned to Australia on 9 September 2002. He says that he returned to the matrimonial home and that he and the Wife continued to live together, but separately in as much as:
a)they had separate bedrooms and no sexual relationship;
b)did not have meals together, and prepared meals separately;
c)did their washing and ironing and food purchases separately;
d)no longer had joint bank accounts, but may still have a home loan account together;
e)had not been out socially together; and
f)had not discussed anything between ourselves,
since separation on 4 April 2002.[5]
[5] Husband’s Affidavit, 18 January 2006.
The Husband’s Application for Divorce was also supported by two further affidavits attesting to the fact that the Husband and Wife lived separately under the one roof.[6] Those affidavits attested, identically, that the Husband “left the matrimonial home some 5 or 6 months ago and he has never been back”.[7] That would put the date of the Husband leaving the matrimonial home at around July or August 2005. The Husband attests to the fact that he “left the Matrimonial home on 23 July 2005.”[8]
[6] Affidavits of Nikola and Danica Carcevski, both sworn 18 January 2006.
[7] Affidavits of Nikola and Danica Carcevski, paras. 5.
[8] Husband’s Affidavit, para. 3.
The Wife filed a Response on 24 February 2006 (“Wife’s Response”) in which she asserted that the date of separation was 25 September 2005,[9] and sought that the application be dismissed.[10]
[9] Wife’s Response, Part 7.
[10] Wife’s Response, Part 6.
The matter came before a registrar of this Court on 2 March 2006 and was adjourned to 7 April 2006 before Federal Magistrate Housego.
When the matter came before Federal Magistrate Housego on 7 April 2006 she listed the matter for hearing on 12 May 2006.
The Wife swore an affidavit on 1 March 2006 (“Wife’s Affidavit”).
In the Wife’s Affidavit the Wife says that:
a)separation occurred when the Husband left the Matrimonial home on 25 September 2005;[11]
b)the Wife and Husband slept in the same bedroom and had intimate relations until the date of separation;[12]
c)meals were eaten together when the Husband was home, together with the two sons of the marriage, and that the Wife was responsible for cleaning, domestic chores, cooking and washing until the time of separation;[13]
d)whilst the Husband preferred to stay at home the Husband and Wife had attended a wedding, two funerals and associated visits to family homes, and Easter and Christmas church services at the Rosebery Orthodox Church.[14]
[11] Wife’s Affidavit, para. 2.
[12] Wife’s Affidavit, para. 3.
[13] Wife’s Affidavit, para. 2.4-2.5 and 4 and 6.
[14] Wife’s Affidavit, paras. 7-9.
The essence of the Wife’s Affidavit in respect of the evidence at
para. 11 above was confirmed by three affidavits filed by the two sons of the marriage.[15] The social and cohabitation arrangements described by the Wife were also confirmed in two affidavits filed by her sister-in-law.[16]
[15] Affidavits of Marjan Causoski sworn 1 March 2006 and 27 March 2006; affidavit of Robert Causoski sworn 27 March 2006.
[16] Affidavits of Lena Arsinoska, sworn 1 March 2006 and 27 March 2006.
When the matter came before Federal Magistrate Sexton in this Court on 12 May 2006 orders were made in the following terms:
“1. The matter be adjourned to 12 October 2006 at 10.00 am before Federal Magistrate Housego for further mention.
2. Leave be granted to the Respondent wife to make an oral application for the costs of the preparation for hearing and appearances on 7 April 2006 and 12 May 2006, such application to be adjourned to 12 October 2006.”
Federal Magistrate Sexton further noted that:
“A. The Court notes that the Husband intends to ask the Court to dismiss the application for divorce filed 18 January 2006 and to file and serve a fresh application for divorce prior to the adjourned date, and this course of action is not opposed by the wife.”
No fresh application was ever filed. An Amended Application was filed on 9 October 2006 (as to which see below).
The solicitor with the carriage of the matter on behalf of the Respondent Wife swore an affidavit on 11 October 2006.[17]
[17] Affidavit of Coleman, sworn 11 October 2006 (“Coleman’s Affidavit”).
Coleman’s Affidavit annexes the following documents:
a)a copy of a decree and corresponding English translation of an Order for a Decree Absolute (“Macedonian Decree Absolute”) made by the District Court in Prilep, Macedonia (“Macedonian Court”);[18]
b)
a copy of a letter from the Husband’s solicitors dated
12 September 2006 to the Wife’s solicitors, annexed to which is a copy of the Macedonian Decree Absolute;[19]
c)the Wife’s financial statement sworn 25 September 2006 (“Wife’s Financial Statement”);[20] and
d)the Husband’s Financial Statement sworn 18 October 2005 (“Husband’s Financial Statement”).[21]
[18] Coleman’s Affidavit, annexure A para. 2.
[19] Coleman’s Affidavit. annexure B para. 2.
[20] Coleman’s Affidavit. annexure C para. 3.
[21] Coleman’s Affidavit. annexure D para. 4.
Coleman confirms that the Wife has incurred costs in relation to the matter to date of $5,945.50 for solicitors and barrister’s costs, and that it was anticipated that further costs of $1,000 would be incurred for the hearing on 12 October 2006. Total anticipated costs would therefore be $6,945.50.[22]
[22] Coleman’s Affidavit. paras. 5 and 6. I note that there is a minor arithmetical error in the addition of the anticipated costs, Coleman attesting that they are $6,945 and not $6,945.50.
On 9 October 2006 the Husband filed an Amended Application for Divorce. For present purposes the only relevant part of the Amended Application was the answer to question 16 in relation to the date of separation. In answer to that question the Husband said:
“For the purposes of these proceedings on a date on or before 26 September 2005.”
The proceedings in the Macedonia Court
Annexure A to Coleman’s Affidavit sets out the terms of the Macedonian Decree Absolute translated from Macedonian into English. The Macedonian Decree Absolute recites the history of the proceedings in the Macedonian Court, and reads as follows:
Decree number: 245/2006
IN THE NAME OF THE CITIZENS OF THE REPUBLIC OF MACEDONIA!
At the District court in Prilep, as a first degree civil court, on 13th June 2006 a trial had been held by the judge Sonja Dimeska as chairman of the council and the jury Zlatko Cagoroski and Angele Kiroski as members of the council resolving the complaint for divorce lodged by Zivko Causoski from Sydney, Australia against Vesela Causoska from Sydney, Australia. The value of the trial is 60,000,oo denars. At the held oral and main trials on 13th June 2006 at presence of the the proposers plenipotentiary Lenka Markoska and the special guardian, the lawyer Sonja Petreska, the District court in Prilep brought the following:
D E C R E E
The official rectangular seal bears the words:
The decree is absolute.
District court in Prilep.
Date: 20th June 2006.
The official round seal bears the words District court in Prilep.……………signature of the official……………….
The proposal for divorce lodged by the prosecutor CAUSOSKI ZIVKO from the village Vogjani against the defendant VELIKA CAUSOSKA maiden Arsinoska from the village Bucin HAS BEEN APPROVED. The marriage concluded on 13th November 1969 filed in the Book of marriages for the township Vogjani under file number 10/1969 HAS BEEN DIVORCED according to article 44 of the Family Law Act.
Each party shall be responsible for his or her own legal fees and costs in this matter.
EXPLICATION
The proposer Causoski Zivko lodged a complaint for divorce against Causoska Vesela at this court. He had stated in the complaint that had concluded a marriage on 13th November 1969 with the defendant and the marriage has been filed under file number 10 for the year 1969 and township village Vogjani, municipality Prilep. They had two children in their marriage Causoski Robert born 5th March 1972 in Sydney, Australia and Causoski Marjance born 12th November 1974 in Prilep. After their marriage the parties lived in Australia, where their two major children live now. The disagreements and often quarrels between them made them to separate in 2002 in other words have lived separately more than four years.
The prosecutor requests the marriage to be divorced because of the factual breakdown of the marital community more than one year.
At the trial, the prosecutors pleinpotentiary completely supported the complaint and in the final word stated, as a sister of the prosecutor, that the parties hadn’t been living together since 2002 and suggested the court to approve the lodged complaint and the marriage be divorced.
Hadn’t asked for costs.
As an answer to the complaint the special guardian stated that the court brings a decision that is in accordance to the law. In the final word suggested the marriage be divorced.
Hadn’t asked for costs.
At the held oral and main trial, the court had checked the quotes in the complaint, read the Birth certificate under registration number 7811/1972 issued on 9th March 2006 in New South Wales, the Birth certificate under file number 1543 for the year 1974 for the township Prilep and the Marriage certificate for the township village Pasino Ruvci – municipality Prilep under file number 10/1969. Taking in consideration all of the evidence determined the factual state:
The prosecutor concluded a marriage with the defendant on 13th November 1969, had two children Causoski Robert born 5th March 1972 in Sydney, Australia and Causoski Marjance born 12th November 1974 in Prilep who are major now. The marriage existed till 2002, four years ago. The marriage had ended when the defendant had moved and lived at an unknown address. The breakdown had evolved because of the disagreements and quarrels.
According to article 44 of the Family Law Act, one of the spouses can request a divorce if the marital community had ended more than one year.
In the concrete case, the prosecutor had requested a divorce because the marriage with the defendant had ended more than one year and in accordance to the above stated provision.
From the evidence of facts the court had determined that the lodged complaint is justful.
The marriage concluded on 13th November 1969, filed under file number 10 for the year 1969 for the township village Pasino Ruvci is an indisputable fact. The spouses had two children in their marriage and the marriage ended in 2002 when the defendant had left her spouse.
During the trial the court had taken in consideration all of the facts, the written so as oral.
According to the stated, the court had decided the marriage be divorced according the article 44 of the Family Law Act.
The court had brought the decision for fees and costs according to article 143 of the Court Laws deciding each party to be responsible for the fees and costs.
District court in Prilep
President of the council-judge,
Sonja Dimeska
………………..signature………….
Legal advice: An appeal can be lodged within 15 days of the date of the decree recievement to the Appeal court in Bitola.
The official rectangular seal bears the words Judge-Chairman of the council. The court clerk has put his/her signature confirming that the decree is true and absolute.
The official round bears the words District court in Prilep, Republic of Macedonia.
Exhibit A in the hearing was the translation of a court document from Macedonian into English, which read as follows:
Court of First Instance – Prilep
File no” 245/2006
10/10/2006
PrilepTo Vesela Causoska
From village Bucin
Currently residing in Sydney-AustraliaMatter: Response to a request
Before this Court the applicant Zivko Causoski from village Vogjani, who currently resides in Australia has filed an application for a divorce from spouse Vesela Causoska, from the village Bucin, and a currently residing in Sydney-Australia.
The application for divorce has been submitted to this Court on 22/3/2006 and the matter has been registered under file number 245/2006 of which proceedings have been finalised and decisions which went into effect have been sent to the authorised person of the applicant and the special guardian of the spouse.
Presiding Judge: Sonja Dimeska
Additional Information: A round rubber seal of the Court of First Instance – Prilep, Republic of Macedonia has been affixed on the document.
It is apparent from the foregoing that the application for divorce was submitted to the Macedonia Court on 22 March 2006, and that the Macedonian Decree Absolute was granted on 13 June 2006.
It is also evident from the obtaining of a birth certificate issued in New South Wales on 9 March 2006 that certain preliminary steps were taken by the Husband prior to making the application to the District Court in Prilep on 22 March 2006.
The fact of the making of the application to the Macedonia Court was not disclosed to this Court on 7 April 2006 nor on 12 May 2006. Likewise, the making of a Macedonian Decree Absolute was not advised to the Court by the Husband (who was the applicant in the proceedings both in this Court and in the Macedonia Court).
From the evidence before the Court the Wife was not advised of the application to the Macedonia Court, and was only advised of the making of the Macedonian Decree Absolute by letter to her solicitors one week and day shy of 3 months after the Macedonian Decree Absolute was made.
The effect of the Macedonian Decree Absolute
Section 104(3)(d) of the Family Law Act, 1975 (Cth) (“Family Law Act”) provides that a divorce effective in accordance with the law of an overseas jurisdiction is to be recognised as valid in Australia where the respondent (in this case the Wife) was a national of the overseas jurisdiction at the relevant date. The “relevant date” for the purposes of a divorce is the date of the institution of the proceedings that resulted in the divorce, in this case, 22 March 2006.[23] It was not in dispute that the Wife was a national of Macedonia. No issue was taken with the fact that the Macedonian Decree Absolute was effective in Australia by reason of s.104(3)(d) of the Family Law Act. I have assumed, for present purposes, that the Macedonian Decree Absolute is valid, notwithstanding what I say below concerning the Macedonian Court being misled.
[23] Family Law Act, s.104(1) and Exhibit A. An “overseas jurisdiction” is defined in s.4 of the Family Law Act to mean “a country … outside Australia.”
Consideration of the circumstances of this case
There were proceedings in this Court on 7 April 2006 and 12 May 2006. Those proceedings related to the Applicant’s Application for Divorce. At the same time the Applicant had brought divorce proceedings in the Macedonian Court.
I think it self evident that the proceedings in this Court might have taken a different path had the Husband advised the Wife and/or this Court of the proceedings in the Macedonian Court.
The failure to advise the Wife and/or this Court involves, in my view, an element of duplicity by the Husband. It is reasonable to draw an inference, in all the circumstances, that the Husband took the proceedings in the Macedonian Court to avoid any problems he perceived he might have dealing with what was, at that stage, a defended divorce and disputed date of separation, in this Court.
To advise the Wife and/or the Court of the Macedonian Court proceedings might have affected the Husband’s ability to obtain what was, on the face of the Macedonian Court record, effectively an undefended divorce.
Even if that were not so, and assuming that the Wife had been prepared to allow the Macedonian Court proceedings to proceed as they did, advice of those proceedings might have avoided the necessity to incur further expense in these proceedings on the part of the Wife on either
7 April 2006 or 12 May 2006. In short, what became duplex proceedings in this Court might not have had to have been defended, or dealt with, in the same manner as if there had been full and frank disclosure by the Husband of the Macedonian Court proceedings.
The date of separation is clearly a critical issue in these proceedings.
It seems that the Husband has been less than forthcoming, even as recently as the Amended Application for Divorce on 9 October 2006, as to the date of separation.
The Husband’s position on this issue has changed in this Court during the course of the proceedings (from 2002 to July 2005 to on or before 26 September 2005). At the same time, he clearly represented to the Macedonian Court that the separation occurred in 2002. And, seemingly, that the separation occurred at the instance of the Wife moving to and living at an unknown address. That representation was untrue on the Husband’s evidence before this Court.
The apparent misleading of the Macedonian Court is a matter of serious concern, and one I address below. It is a relevant consideration because, as I suggest above, it appears to have been done with a view to circumventing the processes of this Court in respect of issues which were in dispute before this Court at the time (22 March 2006) the application was made to the Macedonian Court.
I also note that the Husband has not done as he indicated he would do, that is, to file a fresh application for divorce and ask for the current Application of Divorce to be dismissed. Rather, he has filed an Amended Application for Divorce.
It is therefore my view that the Wife has unnecessarily incurred costs in relation to the proceedings in this Court on 7 April 2006 and 12 May 2006.
Macedonian Court misled
On the evidence apparently available to the Macedonian Court it made a number of findings of fact including that:
a)“the marriage had ended when the defendant [the Wife] had moved and lived at an unknown address.”[24] That led the Macedonian Court to conclude that “the marriage ended in 2002 when the defendant [the Wife] had left her spouse [the Husband]”.[25]
b)“marital community had ended more than one year” as a consequence of the separation being for more than four years.[26]
[24] See para. 19 above.
[25] See para. 19 above.
[26] See para. 19 above.
The evidence to the Macedonian Court was evidently provided by the Husband (and certainly not by the Wife who was given no notice of the proceedings). The evidence before this Court, including the Husband’s own evidence, seems to indicate that some of the evidence provided to the Macedonian Court to obtain the Macedonian Decree Absolute was false.[27] This is especially so in relation to the finding that it was the Wife who “moved and lived at an unknown address.”
[27] See para. 4 above.
Costs
Section 117 of the Family Law Act provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB and 118, each party to proceedings under this Act shall bear his or her own costs
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Cases concerning costs
The law concerning costs in family law proceedings is succinctly summarised by Federal Magistrate Walters in RNL & RHB,[28] as follows:
“The question of costs in family law proceedings is dealt with in s.117 of the Family Law Act. A judicial officer has a broad discretion in costs matters, and the Full Court has indicated that it will not ordinarily intervene unless the order is plainly unreasonable. Indeed, it has been held that the Court has an almost unlimited jurisdiction in relation to costs, although any costs orders must be just.
It is not the law that a costs order can only be made in “a clear case”. Thus, although a finding of justifying circumstances is an essential preliminary to the making of a costs order, there is no additional or special onus on an applicant for an order for costs. Although the general rule is that each party shall bear his or her own costs, that general rule is expressed to be subject to s.117(2) and must yield whenever the judicial officer finds that there are circumstances justifying the making of the costs order.”[29]
[28] [2005] FMCAfam 520 (“RNL”).
[29] RNL at paras. 169 and 170.
The view of s.117(1) and (2) set out in RNL is in large part drawn from the discussion in the majority decision in Penfold v Penfold.[30]
[30] (1980) 144 CLR 311 at 315 per Stephen, Mason, Aickin and Wilson JJ; with Murphy J expressing a similar view at 317 (“Penfold”); and followed in Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184, (1998) HCA 44 at CLR 191 per Gummow J, HCA para. 11 per Gummow J; and whilst not expressly followed, certainly expressed in similar terms at CLR 219 per Hayne J, HCA at para. 9, and CLR 225 per Callinan J, HCA at para. 125 per Callinan J (“JJT”).
In JJT s.117(2A) of the Family Law Act was commented on by a number of the Justices of the High Court. Kirby J (albeit in dissent) said that s.117(2A):
“express[ed] criteria to which the Court must have regard in considering what order (if any) it should make under s.117(2). All but one of the paragraphs of sub-s. (2A) relate to the circumstances of a party. However, the closing paragraph, par. (g) is expressed in the most ample terms.”[31]
[31] JJT CLR at 198 per Kirby J, HCA at para. 37 per Kirby J.
Hayne J said that:
“The list of matters set out in sub-s. (2A) to which the Family Court is directed to have regard in making orders under s.117(2) indicates clearly that the subject matter of the orders to be made under s.117(2) is the costs which a person may be ordered to pay another as indemnity for that other’s liability for professional fees and out of pocket expenses reasonably incurred in the litigation, that is, “costs” as that expression is ordinarily understood in the law.”[32]
[32] JJT at CLR 220 per Hayne J, HCA at para. 98 per Hayne J.
Justice Callinan said that:
“Subsection 117(2A) provides a catalogue of the matters to which the Family Court may have regard if an order different from that contemplated by s.117(1) is to be made. All of these matters, except for the last, are matters expressly concerned with the conduct and circumstances of the parties. The last could hardly however, be expressed in wider terms”.[33]
[33] JJT at CLR at 225 per Callinan J, HCA at para. 126 per Callinan J.
Considerations in relation to costs
In considering whether to order costs in this matter I must determine whether there are circumstances that justify the Court ordering costs.
In my view there are circumstances that justify the Court ordering costs in this matter. Those circumstances are:
a)the institution of proceedings in the Macedonian Court when there were already proceedings on foot in Australia in respect of the same matter (i.e. the divorce);
b)the fact that no notice was given of the proceedings in the Macedonian Court to either the Wife or this Court;
c)that as a consequence of the matters adverted to in sub-para. (b) above, proceedings in this Court on 7 April 2006 and 12 May 2006 continued, when they need not necessarily have done so, or might have been conducted more expeditiously;
d)that the Macedonian Court has seemingly been grievously misled with respect to the essential facts on which the Macedonian Decree Absolute was granted;
e)even when the Macedonian Decree Absolute was granted, and effective in Australia by reason of s.104(3)(b) of the Family Law Act (assuming for present purposes that the Macedonian Decree Absolute is not invalidated by the misleading of the Macedonian Court), neither the parties nor the Court were advised for a significant period of time; and
f)the Husband did not, as he advised the Court he would do, file a fresh application, on or before 12 October 2006, and ask for the present Application to be dismissed, but rather filed an Amended Application for Divorce.
In making an order I am obliged to have regard to the factors set out below:
a)The financial circumstances of each of the parties to the proceedings.
It is evident that the Husband’s financial position is somewhat superior to that of the Wife. The Husband has an average weekly income of $1,235.00 consisting of a $900 wage and $335 of investment income. Whilst the income appears to be largely spent, I note that the Husband also has significant property assets, lesser superannuation assets, and liabilities which are not that significant given the value of the property that he owns. He also has a small amount of financial resources.[34] The Wife’s income is significantly less per week ($421.00), and again appears to be almost completely expended. The Wife, like the Husband, owns significant property, against which her liabilities are not significant. She has a significantly lesser sum of superannuation than the Husband.[35]
[34] See Husband’s Financial Statement, Parts B, D, G, I, J, K and L.
[35] See Wife’s Financial Statement, Parts B, D, G, I, J, K and L
I note that financial circumstances are only one of the factors to which regard must be had in making a costs order.
b)Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party.
Neither party is in receipt of assistance by way of legal aid.
c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters.
I have had regard to the conduct of the parties in the proceedings. There can be no complaint about the Wife’s conduct of the proceedings. As I have indicated above, the Husband has been less than forthcoming with the Court, and with the Wife, in relation to the Macedonian Court proceedings which ultimately have an impact upon the conduct of these proceedings. Indeed the Husband has acted in these proceedings as if the Macedonian Court proceedings were not on foot. That has, as I have indicated above, probably incurred additional expense on the part of the Wife which ought not have been incurred. Further, it entails a failure to make full and frank disclosure to the Court, and the Wife.
I note that this factor relates to the conduct of the parties in the proceedings generally, and is not limited to the merely procedural aspects of the conduct of the litigation set out in s.117(2A)(c) of the Family Law Act.
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.
This is not, in terms, a relevant consideration in the present circumstances. However, I note that Notation A to the orders of Federal Magistrate Sexton of 12 May 2006 has not been followed, in terms, in that the Husband has not filed a fresh application nor has he asked the Court to dismiss the application for divorce filed 18 January 2006, but has filed an Amended Application for Divorce.
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings.
Whilst probably not a relevant consideration at this point in time, I note that the Macedonian Decree Absolute probably renders odious the necessity for recognition of the divorce in a formal sense, by this Court.
f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer.
This is not presently a relevant consideration.
g)such other matters as the court considers relevant.
For the reasons that I have set out above it is my view that the conduct of the Husband in relation to the Macedonian Court proceedings is relevant, taking into account the wide ambit of what might be relevant for the purposes of s.117(2A)(g).[36]
As I have indicated above, it seems that the Macedonian Court has been misled concerning essential facts, the Husband’s conduct in relation to these proceedings has involved an element of duplicity, and by reason of the Macedonian Court proceedings these proceedings are duplex. Further, it is relevant, in relation to this factor, to note that the Husband has not acted as he said he would when before the Court on 12 May 2006.[37]
[36] As to which see paras. 40-42 above.
[37] See Notation A to the orders of Federal Magistrate Sexton of 12 May 2006.
Conclusion
In my view, the Applicant Husband ought to pay the Respondent’s Wife’s costs of this matter, for the reasons that I have set out above.
I have assessed costs on the following basis:
a)that the 7 April 2006 was a short mention - $205.00;
b)that the matter was set down for the final hearing on 12 May 2006 for one day - $1500.00;
c)a half day hearing for the hearing of the adjourned costs application on 12 October 2006 - $750.00.
I certify for counsel as advocate in respect of (b) and (c) above, thereby increasing those amounts to $2,250.00 and $1,125.00 respectively.[38]
[38] As to costs see Federal Magistrates Court Rules 2001 (Cth) rr.21.10, 21.15 and 21.16 and Schedule 1 Part 1.
Order
I will order that the Applicant Husband pay to the Respondent Wife costs fixed in the sum of $3580.00.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
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