Clements and Clements (No. 2)

[2019] FamCA 954

FAMILY COURT OF AUSTRALIA

CLEMENTS & CLEMENTS (NO. 2) [2019] FamCA 954

FAMILY LAW – COSTS – Application by wife seeking a costs order that the husband pay her costs of the substantive proceedings – Where the husband filed a cross claim for the costs of the substantive proceedings against the wife – Where the husband also seeks the costs of the enforcement application against the wife – Applications dismissed.

Family Law Act 1975 (Cth) s 117

Bruni v Bruni [2010] ONSC 6568
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & Ors [2005] FamCA 158
Cachia v Hanes (1994) 179 CLR 403

APPLICANT: Mr Clements

RESPONDENT: Ms Clements

FILE NUMBER: SYC 1777 of 2017

DATE DELIVERED: 12 December 2019

PLACE DELIVERED: Hobart

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 21 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Mills Oakley

COUNSEL FOR THE RESPONDENT: Mr Schonnell SC

SOLICITOR FOR THE RESPONDENT: Karras Partners Lawyers

Orders

1. The respective costs application by Mr Clements (‘the husband’) and Ms Clements (‘the wife’) are dismissed.

2. The wife shall pay to the husband the sum of eight thousand six hundred and forty dollars ($8,640) within twenty eight (28) days from the date of this order AND IT IS NOTED that this is the interest calculated on the amount payable by the wife to the husband pursuant to the property orders made 22 August 2019.

3. The husband shall be authorised to direct payments from the St George bank account number 112-879 423 400 751 to solely authorise the payment of the following accounts:-

   (a)the Australian Taxation Office in the sum of $2,686;

   (b)Ms SS, solicitor, in the sum of $1,593;

   (c)the UU Group Suburb D in the sum of $2,835.70;

   (d)the UU2 Group Suburb D in the sum of $2,03.94; and

   (e)VV Group Suburb WW in the sum of $5,465.42;

4. The husband shall be authorised to pay such further accounts in relation to the properties owned by the N Superannuation Fund, subject to the following:-

   (a) the total amount permitted to be paid from account no. …51 shall not exceed a further combined total of $50,000 without written agreement by the wife or leave of the Court;

   (b)that fourteen (14) days prior to such payment the husband shall notify the wife, by email to the wife’s solicitors or the wife’s brother Mr FF, of his intention to pay and provide a copy of the invoice; and

   (c)that for six (6) months from the date of this Order both parties have liberty to apply to have the matter restored before me on this issue on the giving of twenty four (24) hours’ notice.

5. In relation to any difficulties in respect of the sale of the property owned by the N Superannuation Fund and proposed to be sold, each party have leave to apply on the giving of twenty four (24) hours’ notice in respect of such sale, such leave to apply for six (6) months from the date of these Orders.

6. All extant Applications in a Case, including the application contained in the Response to the Application in a Case, are dismissed.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Clements & Clements (No. 2) 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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1777 of 2017

Mr Clements

Applicant

And

Ms Clements

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Clements (‘the husband’) and Ms Clements (‘the wife’) have been engaged in adversarial litigation with respect to parenting and property over a number of years.

2. I am reminded of the words of Quinn J in Bruni v Bruni, 2010 ONSC 6568 (CanLII), where he said:-

   [10] In the midst of this social stew, perhaps it is not surprising that [the husband] and [the wife] are having problems, serious problems, regarding the custody of, and access to, their children. The source of the difficulties is hatred: a hardened, harmful, high-octane hatred. [See Note 2 below[1]] [The husband] and [the wife] hate each other, as do [their new partners]. This hatred has raged unabated since the date of separation. Consequently, the likelihood of an amicable resolution is laughable (hatred devours reason); and a satisfactory legal solution is impossible (hatred has no legal remedy).

   [11] [The husband] and [the wife] were married on October 7, 1995. If only the wedding guests, who tinkled their wine glasses as encouragement for the traditional bussing of the bride and groom, could see the couple now. [See Note 3 below[2]]

   [1] Note 2: At one point in the trial, I asked [the wife]: "If you could push a button and make [the husband] disappear from the face of the earth, would you push it?" Her I-just-won-a-lottery smile implied the answer that I expected.

   [2]Note 3: I am prepared to certify a class action for the return of all wedding gifts.

3. The parties’ property has been significantly diminished by these proceedings and they have spent a combined sum in excess of $1,000,000 in legal costs. The hate between these parties has indeed devoured reason. Sadly, their three children’s ability to have a meaningful relationship with both of their parents has likely ended, and the hate and venom that has emanated from each of the parties will probably resonate through this family for decades, impacting on the children, and, if they are lucky enough to be blessed with them, their grandchildren. 

4. These proceedings were heard on 16 April 2018 then 11, 12, 13, 17, 18 December 2018 (‘the Substantive Proceedings’).  Parenting orders were made on 15 April 2019.  Leave was given in relation to the property orders to make submissions with regard to the Orders set out in the reasons.  The parties made submissions and on 22 August 2019 and a corrigendum (‘the Corrigendum’) was made to the Reasons for Judgment delivered on 15 April 2019 (‘Reasons for Judgment’).  Consequently, property orders were made on that day.

5. Issues have arisen in respect of those property orders.

6. On 20 August 2019 the husband filed an Application in a Case seeking orders that the wife execute a lease on a property owned by the N Superannuation Fund (‘the Superannuation Fund’).  He also filed a supporting affidavit.  That Application was amended by an Amended Application in a Case filed 24 September 2019 where the husband sought a variety of orders in the nature of enforcement and costs orders.

7. The matter came before me on 16 October 2019 and the various applications were listed for hearing on 21 November 2019.  The wife had filed a Response to an Application in a Case on 15 October 2019 in which she sought the dismissal of the husband’s Amended Application in a Case and other orders, including an order that the husband pay the wife’s costs of the Substantive Parenting proceedings.

8. On 11 November 2019 the husband filed a further Amended Application in a Case and sought a series of orders including that:-

   (a)the wife pay interest on the substantive amount to be paid to the husband which was quantified by counsel at $8,640, and which amount was not challenged in argument);

   (b)the wife pay part of the fees of the single expert Ms AA which was eventually amended to 48 per cent of $17,411.50 (an amount of $8,358);

   (c)the wife pay the husband’s costs of the parenting proceedings in the substantive proceedings; and

   (d)the husband, in effect, be given sole right to manage the parties’ superannuation fund to enable payment of some debts and the sale of a property.

9. I mention those matters because the remaining matters were resolved by Terms of Settlement handed up when the matter came before the Court on Thursday 21 November 2019.

10. The husband relied upon:-

    (a)his Outline of Case document prepared by senior counsel and dated 18 November 2019;

    (b)his further Amended Application in Case filed11 November 2019;

    (c)his Affidavit filed 11 November 2019; and

    (d)an Affidavit of Ms SS filed 25 November 2019.

11. The wife relied upon:-

    (a)her Outline of Case dated 18 November 2019;

    (b)her Response filed 15 October 2019;

    (c)her Affidavit filed 15 October 2019;

    (d)her Financial Statement filed 20 November 2019;

    (e)the Report of the single expert Ms AA dated 5 December 2018; and

    (f)Reasons for Judgment delivered by this Court on 15 April 2019.  This presumably included the Corrigendum contained in the reasons of 22 August 2019 as submissions were made by her counsel to those reasons.

12. Given the application for the wife to pay the whole of the single expert report and that submissions were made as to the outcome of the report, I inferred that I could have regard to that report

13. The husband tendered in evidence the annexures to his Affidavit and I had regard to those parts to which I was taken (Exhibit E1) together with a letter from the husband’s solicitors to the wife’s solicitors dated 15 November 2017 and a reply to that letter of 20 November 2017 (Exhibit E2).

14. The wife relied upon documents in a Tender Book (Exhibit E3), being those pages to which I was taken during the course of argument.

15. I have had regard to the procedural history of this matter and the history of the matter set out in the Reasons for Judgment published in these proceedings.  I do not intend to repeat them in these reasons.

16. I had regard to the chronology contained in paragraph 6 of the husband’s Case Outline document insofar as it related to the material contained in the parties’ affidavits, the Reasons for Judgment and the tender documents.  I have also had regard to the following orders:-

    (a)a Consent Order made 18 December 2018 (amended pursuant to the Slip Rule);

    (b)property orders made 22 August 2019; and

    (c)a procedural order made 16 October 2019.

COSTS APPLICATION AND SUBSTANTIVE PROCEEDINGS

1. Each of the parties sought costs in respect of the Substantive Proceedings, although senior counsel for the husband conceded that his costs applications were in effect a response to the wife’s costs application in terms of the Substantive Proceedings and there was a costs application on these so called enforcement applications.

2. The question of costs was argued by senior counsel on behalf of each of the parties.

THE LAW RELATING TO COSTS

Costs orders generally

1. The power to make costs orders are set out in s 117 of the Family Law Act 1975 (Cth) (‘the Act’), which relevantly provides:-

   (1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC 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), (4A) 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.

2. In Penfold v Penfold (1980) FLC 90-800 the majority of the High Court expressed the general rule that s 117(1) is not paramount to s 117(2) of the Act. A court must make a finding that there are circumstances justifying the making of a costs order before proceeding to make the orders.

3. There is no guidance in the legislation between the two sub sections nor any additional special onus on the applicant for an order as to costs.

4. It is necessary to consider the facts in the light of the provisions set out in s 117(2A) of the Act. While the list in s 117(2A) gives rise to a wide range of factors there is nowhere in s 117(2A) that says any one factor provides a hierarchy in relation to the other factors, it is a matter of weight that is accorded to each of the relevant factors in the Court’s discretion (see Medlon and Medlon (No.6) (Indemnity Costs) (2015) FLC 93-664 per Strickland J). One factor may be enough. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & Ors [2005] FamCA 158, the Full Court held:-

   41. Nowhere in subsection 2(a) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

5. As such the Court has a broad discretion in determining costs.

6. It is of value to repeat what I have said in earlier judgments that the Court needs to consider the difference between the various types of unquantified costs orders available under the Act. There are many variations of types of costs orders, but they generally fall into three types:-

   a)Party and party costs - which are calculated having regard to the schedule of costs under the Family Law Rules 2004 (Cth);

   b)Lawyer and client costs – these are essentially indemnity costs, with the onus upon the costs applicant to satisfy the taxing authority that such costs are on balance fair, reasonable and proportionate; and

   c)Indemnity costs  - these are essentially lawyer and client costs, with the onus upon the costs respondent to satisfy the taxing authority that such costs are on balance not fair and reasonable and not on balance proportionate, that is the reversal of the onus of proof. 

7. It should be borne in mind that costs orders are restorative and not punitive, and costs cannot exceed the amount actually incurred.  They are an indemnity or partial indemnity.  In Cachia v Hanes (1994) 179 CLR 403 the plurality of the Court, comprising Mason CJ, Brennan, Deane, Dawson and McHugh JJ observed:-

   Whilst the restricted basis upon which party and party costs are awarded may be debated as a matter of policy, it is to be borne in mind that party and party costs have never been regarded as a total indemnity to a successful litigant for costs incurred, let alone total recompense for work done and time lost. Putting to one side the question posed by the relatively rare exception of a solicitor acting in person, there is no inequality involved: all litigants are treated in the same manner. And if only litigants in person were recompensed for lost time and trouble, there would be real inequality between litigants in person and litigants who were represented, many of whom would have suffered considerable loss of time and trouble in addition to incurring professional costs. The partial indemnity which the law allows represents a compromise between the absence of any provision for costs (which prevails as a matter of policy in some jurisdictions) and full recompense. In these days of burgeoning costs, the risk of which is a real disincentive to litigation, the proper compromise is a matter of both difficulty and concern.

8. This costs application was considered and determined under the provisions of s 117 of the Act, and I discuss the reasons for this approach later in this judgment.

COSTS SECTION 117(2A) OF THE ACT

1. In considering what order, if any, I should make under s 117(2A) of the Act I have had regard to:-

(a)The financial circumstances of each of the parties to the proceedings

1. The parties’ financial circumstances are well known to me given that I determined property as between them.  I acknowledge that the wife received a bequest from her father which was not included in the division of property.  I also note that the parties have between them spent over $1 million in legal costs in these proceedings, so far.  It is likely that each of the parties have expended in excess of $500,000 in legal costs.

2. Each party has the capacity to meet a costs order if required by the Court.

(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;

1. This is not a relevant consideration as neither party is in receipt 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;

1. Senior counsel for each of the parties took me to those parts of my Reasons for Judgment which was critical of the other party.  I do not intend to repeat that material except to say that I have had careful regard to it.

2. The children, who were the subject of the parenting proceedings have experienced an awful time given the conflict of their parents.  Each of the parents bears a significant degree of responsibility for what these children have endured.

3. The thrust of the submissions on behalf of senior counsel for the wife was that the husband’s intensely adversarial approach was doomed to fail.  He asserted that it was clear from the report of Ms AA, the single expert, and from the criticisms by this Court of the husband in the Reasons for Judgment.

4. That is fair comment, however, he did not, as submitted by counsel for the husband, focus on the questions of the wife’s engagement in his highly adversarial determination.

5. Neither party can claim that they were less adversarial than the other.  Each of the parties engaged in the conflict with senior counsel and the parties exhibited high levels of conflict and low levels of co-operation.

6. Seemingly this has continued subsequent to the delivery of the reasons in April and corrigendum in August 2019.

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

1. Neither party made submissions in respect of this provision.

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

1. The mere fact that a party was wholly unsuccessful does not justify the making of an order for costs (see Re Collins and the Victorian Legal Aid Commission (1984) FLC 91-508).

2. The wife asserts that she was wholly successful and said that the husband pursued the litigation notwithstanding that the chances were small that the children could live with him.

3. The husband had an arguable case and he was entitled to put that case to the Court.

1. The wife was criticised by the family therapist[3] for failing to exercise parental authority with the children and slowly but surely these children were alienated from the husband, not by one party or the other but by both.

   [3] Reasons paragraphs 176 to 184 (in particular paragraph 182).

2. Whilst the wife achieved the orders which she sought from the point of view from the children (who are the subject of the parenting proceedings) I am not satisfied that such a result was wholly successful or wholly unsuccessful.

3. Like many of these cases it was best the Court could do given the intransigence, hostility and adversarial nature of each of the children’s parents.

Conclusion as to costs

1. The parents have each engaged in adversarial litigation.  This was apparent when they gave evidence and in the context of the various skirmishes between them both before, during and after final orders were made.

2. I have carefully considered all of the submissions by senior counsel of both parties in the light of the various parts of s 117(2A) of the Act. I have considered the circumstances in respect of each of the parties’ costs applications separately and in terms of the costs of the various applications made after reasons were delivered.

3. I have a broad discretion as to costs.  I am satisfied that I ought not to make an order or orders for costs as sought by either the wife or the husband. 

4. Consequently, their respective costs applications are to be dismissed.

CLAIM BY HUSBAND FOR $8,358 IN TERMS OF THE FEES PAID TO MS AA

1. Ms AA was instructed as single expert (‘the single expert’) to provide a report with respect of property totalling about $8 million dollars.  This involved 6,200 transactions.  That report was prepared and the normal order was made that each party would pay one half of those costs of that single expert.  It was clearly an interlocutory order and it is open for either party on a final costs application to seek the other party to pay all or a greater part of those fees.

2. I do not accept the submissions of senior counsel for the wife that this order was a final order.  It was and could only be an interlocutory order.  The order that I was taken to is simply a regurgitation of Rule 15.11.

3. The husband tendered two letters in relation to the single expert’s fees and I have had regard to those letters. 

4. The husband’s submissions were that the wife insisted on a costly single expert report which did not find any misconduct on the part of the husband.  I read the report and noted that it was an analysis of spending over 3.5 years, as set out in paragraphs 387 to 391 of the single expert report.  Given the parties’ submissions, I took it that I was entitled to re-read the report to ascertain what was said by the single expert.

5. The single expert identified a general leakage of $142,000 on a turnover of $8 million dollars over 6,200 transactions.  I have had regard to the comments made by me at paragraphs 387 to 391 of my final Reasons for Judgment in which I said:-

   387.The [wife] was concerned that the [husband] had not accounted for all of the funds from the business, including the sale of his former business where the parties received about $2.5 million dollars.

   388.The forensic accountant’ noted:-

   Review of funds received disbursed by husband.

   3.1I am instructed to undertake a source and application of funds analysis in relation to all monies received and disbursed by [the husband] between 1 January 2015 and 30 June 2018 (the review period) …

   3.2[The wife] asserts that there has been significant funds received and disbursed by [the husband] since 1 January 2015 and those funds need to be traced through a variety of bank accounts to determine if there has been any ‘leakage of funds’.  [The husband] asserts he has been entirely transparent in the management of the funds.

   389.The forensic accountant analysed in excess of 6,200 transactions and observed than on an overall basis there appeared to be no material ‘general leakage’. She classified a number of withdrawal transactions ‘unknown’ totalling $142,000, inclusive of the $118,000 detailed in paragraph 3.8 in her report.  She asserted that the amount was immaterial in the overall flow of funds through the accounts, which were in excess of $8 million for both incoming and outgoing transactions.   

   390.The forensic accountant made enquiries as to withdrawals to the value of $142,000 which could not be identified.  In her report she stated that:-

   The [husband] was able to identify the majority of those transactions, however advised that he was unable to identify transactions totalling approximately $118,000 and advised “[Wife] to confirm and provide details”. The [wife] informed me that she was not aware of the transactions and, that because the [husband] was the “financial controller” in the marriage, he should know why the amounts were withdrawn. [original emphasis]

   391.I reject the [wife’s] claim for an add-back in relation to these sums, given that the amount was competitively small against the $8 million worth of transactions which occurred, that they occurred over an extended period of time in a number of withdrawals, and that the forensic accountant did not consider them to be a substantial feature of the accounts which she assessed. Given the lack of trust between the parties I am not inclined to find that the appointment of the single expert, in all of the circumstances of these parties, was a waste of time and effort.  Much litigation in this Court can amount to a waste of time and effort.  However, when parties distrust each other as much as these do, it is at times necessary to have reports undertaken.

6. Senior counsel for the husband submitted that the husband did not consent to the payment of the single expert fees in:-[4]

   [4] Transcript of Proceedings dated 21 November 2019, page 17, lines 1 to 32.

   …what might be described as an audit of, …, 6,200 transactions over a period of three and a half years. And records what, my solicitors, contend, Ms Warner on behalf of the wife placed on the record before Registrar Hayward 23 October’ 2017.  That is, if the wife wants to undertake that audit work through [the single expert], she can.  And she can undertake that cost.  The Response on behalf of the solicitors for the wife 20 November’ 17 also part of exhibit E2, records this in the second paragraph:

   The fees rendered by the expert will all be met from the frozen B Bank account and the penultimate paragraph of the draft letter clearly requests that the expert identify separately the fees in relation to the task that is being promoted by our client –

   that is, the wife:

   This then allows an adjustment, if appropriate, to be made at a later stage so that those fees, if appropriate, are solely met by our client from her entitlement in the property settlement.

   Your Honour recorded in the judgment that the – having regard to the quantification of the number of transactions, the amount of money that had moved through the account.  And, quite properly, at trial there was no agitation in relation to what may be described as missing funds, and I identify again for your Honour’s benefit at this determination the specific paragraphs of that judgment that I’ve identified in my outline document.  So at the end of it all, some 17-odd thousand dollars is paid to [the single expert] for no probative purpose.  …

7. Given the finding and comments made by me, particularly in the third last sentence of paragraph 391 of my reasons, I am not prepared to make the orders sought by the husband which means that in effect the wife pays the whole of the single expert report.

8. It was a legitimate area for investigation and given the outcome, I am not satisfied that one or other party should meet the whole of the single expert’s fees.  As such I will dismiss that part of the costs application.

INTEREST ON THE PRIMARY SUM

1. In the orders made 22 August 2019 the wife was required to pay the husband $888,495.22 on or before 3 October 2019.  This was tied in with a series of other requirements which had to happen at that time including rearranging mortgages and liabilities and releasing the wife from personal covenants.

2. I have read the affidavits of each of the parties carefully and I have similarly considered their submissions.  The wife did not make that payment and did not offer to make that payment on 3 October 2019. The payment of this amount by the wife was not clarified until the wife filed her financial statement the day before the hearing on 21 November 2019.

3. The argument made by senior counsel for the wife was somewhat circuitous by saying that the husband could not reorganise the loans and the like.  However, the substantive issue was that the money was not made available.

4. I accept the evidence of the husband that he was paying some $4,000 per month in interest on his home loan. 

5. I am satisfied that interest ought to accrue in favour of the husband as against the wife on the principal sum from 3 October 2019 until 21 November 2019.

6. Now that the funds are available within 21 days to put the settlement into effect, and there was no claim for interest over those 21 days, I intend to make it clear that the wife owes the husband interest of $8,640.  Interest should not accrue on interest.  The wife will have 28 days in which to pay the incurred interest of $8,640.

OPERATION OF THE SUPERANNUATION FUND

1. The parties have a self-managed superannuation fund.  There are two properties owned by that fund, one of which is to be sold and another of which is tenanted. 

2. In relation to the property that is to be sold, I made a determination as to the selling agent in the Corrigendum.  This selling agent was apparently not adopted by the wife and she pressed for different agents.  The husband, to his credit, eventually adopted the agent requested by the wife.  He wants the property sold and wants the joint operation of the fund brought to an end.

3. Given the material contained in the husband’s affidavit and the affidavit of Ms SS it seems clear to me that the wife is not seriously participating in the process of selling this property.

4. During the course of the interim hearing I used the term of trying to ‘walk through treacle’.  The evidence before me is indicative of a recalcitrant party not engaging in the process of sale and not endeavouring to comply with the orders for the sale of that property.

5. The longer that this goes on the more expense is incurred and the greater impact on the financial and emotional wellbeing of the parties and no doubt their children.

6. I had considered making the orders sought by the husband in relation to the sale, however, given the conflict and the history of the matter set out in my reasons, I am not satisfied that this would be an appropriate course.

7. What I will do is give the parties leave to have the matter listed on very short notice and if there is recalcitrance in relation to the sale or unnecessary or unreasonable delays, whether that be the husband or the wife, I will deal with it quickly and costs will become a significant issue.

8. In respect of the payment of the accounts of the Superannuation Fund and enabling the parties to meet the day to day expenses, the wife has been again recalcitrant.  She signed an authority to an account which she knew contained insufficient funds to meet the debts.  These debts such as rates, unit levies and the tax are ongoing.  They cannot remain outstanding. 

9. The wife’s approach in respect of that is unsatisfactory and what I intend to do is make orders enabling the husband to draw from the funded account monies to pay the existing liabilities and a process by which he can draw funds into the future, provided he gives the wife 14 days’ notice of his intention to do so.

10. That will enable the superannuation fund to operate until the property is sold and the annual returns lodged.  It will hopefully enable the fund to become or remain compliant and enable the rolling out of funds to the wife and bring an end to the financial engagement between these parties.

11. Accordingly, I will so order.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 12 December 2019.

Associate:     

Date:              12 December 2019