Cowen and Cowen

[2019] FamCA 1045

FAMILY COURT OF AUSTRALIA

COWEN & COWEN [2019] FamCA 1045

FAMILY LAW – COSTS – where wife seeks costs orders against the husband for costs of interim hearing thrown away – where the husband left the Court while the matter was stood down – orders that the husband pay the wife’s costs fixed in the sum of $2,970

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

APPLICANT: Ms Cowen

RESPONDENT: Mr Cowen

FILE NUMBER: MLC 8434 of 2018

DATE DELIVERED: 16 January 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 16 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dunlop

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Ms Swann

SOLICITOR FOR THE RESPONDENT: Lakey Family Law And Mediation

Orders

IT IS ORDERED BY CONSENT THAT

1. The Husband have leave to uplift and remove his affidavit affirmed 9 December 2018 and filed 10 December 2018 from the Court file NOTING THAT the said affidavit contains settlement negotiations between the parties in relation to this proceeding.

2. The Husband pay or cause to be paid and be solely liable for:

   a)All regular loan and debt facility payments for any debt secured against real property known as and located at B Street, Town C (“Town C”); and

   b)All taxes, rates and outgoings of whatsoever nature and kind in relation to or connected with Town C.

3. The Wife have the sole use and exclusive occupation of D Street.

4. The Husband have the sole use and exclusive occupation of Town C.

5. The Husband and Wife be and are hereby restrained by injunction from increasing the level of indebtedness secured against D Street or Town C.

6. The Husband in his personal capacity and as trustee of the F Super Fund and is hereby restrained by injunction from disposing of, withdrawing, transferring or otherwise depleting the balance of the Cash Management Account numbered …61 (current balance as at the date of these Orders is approximately $61,007).

7. The Husband and Wife do all acts and things and sign all necessary documents to apply to ANZ to place a moratorium on mortgage payments in relation to the D Street mortgage.

8. In the event the parties have not reached agreement in writing as to the current market value of D Street, Town C or any business/entity/trust/asset in which either party holds an interest by 25 January 2019 then pursuant to Part 15.5 of the Family Law Rules 2004, the parties jointly engage a suitably qualified expert/s to provide a sworn valuation of the asset or interest the value of which remains in dispute.

9. To facilitate the valuation/s pursuant to Order 8 above:

   a)The Wife via her Lawyer provide to the Husband a list of three proposed experts to carry out the valuations of D Street and Town C and a list of three proposed experts to carry out the valuations of the parties interest in any business/entity or trust by 21 January 2019;

   b)The Husband nominate one expert from each list within 7 days of receiving the list;

   c)The Husband and Wife each comply with all lawful directions of the nominated experts including but not limited to:

   i.Providing access to any real property as and when requested;

   ii.Providing to the expert or their agents any documents required and within any time limits specified;

   iii.Authorising, in writing if necessary, the expert to liaise directly with and obtain documents from any third party agent, including tax agents and accountants;

   iv.The costs of the valuations be borne and paid for by the parties in equal shares.

10. The Husband and the Wife must provide to the other a copy of all financial documents within 14 days of receiving a written request.

11. In the event the Husband falls to nominate an expert pursuant to Order 9(b) herein, the Wife be at liberty to nominate the expert NOTING THAT nothing in this Order alters the parties’ obligations to pay for the mediator and/or expert so appointed. 

IT IS FURTHER ORDERED THAT

1. The parties, together with their lawyers, attend a conciliation conference before a registrar at 9.15 am on 21 March 2019.

2. The applicant wife pay the conciliation conference fee or obtain the requisite waiver thereof by at least 28 days prior to the conference.

3. Each party must provide to the other party/parties and the Court by 4.00 pm on 18 March 2019 a summary that they intend to rely upon at the conference which sets out the following:

   a)a list of assets, liabilities and superannuation together with the current values;

   b)their proposal for division of those assets, liabilities and superannuation; and

   c)details of the relevant matters set out in s 79(4) (or s 90SM as appropriate) of the Family Law Act 1975 (Cth) that reflect that proposal.

4. Paragraphs 2 and 8 of the interim orders sought by the wife in her Initiating Application filed 27 July 2018 be adjourned for hearing in the Senior Registrar’s Duty List at 10.00 am on 2 April 2019.

5. The husband pay the wife’s costs fixed in the sum of $2,970 being costs thrown away for the hearing on 18 December 2018 and such costs to be paid within 28 days.

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 Cowen & Cowen 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 MELBOURNE

FILE NUMBER: MLC 8434 of 2018

Ms Cowen

Applicant

And

Mr Cowen

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter was listed for hearing in the Judicial Duty List on 18 December 2018.  On that date the husband appeared without legal representation. The wife was pressing, or had at least raised the prospect of the matter proceeding on an undefended basis, because of the husband’s failure to comply with previous orders. It was a busy duty list and the matter was stood down to allow the husband to see the duty lawyer with a view to either interim orders being made, or directions for the further conduct of the matter.

2. The proceedings were commenced in July 2018. Orders were made for the filing of documents and there was a dispute as to discovery.  I was advised sometime during the day on 18 December 2018, that the husband had left the Court, and that a call had been put through to him telling him to come back as the matter was going to proceed. He did not, in fact, return.

3. The husband has now filed an Affidavit in which he says, correctly, that it was a busy day.  All the seats in the Court were taken, and people were standing along the walls.  He also said it was difficult to hear me speak.   Although I’m not known for my dulcet tones, that is perhaps true.  He also said that I had indicated that given that I had limited judicial resources available, it was likely that I would not be able to reach all the matters in the list on that day. The husband acknowledges that I asked him if he wanted legal assistance and I did tell him that there would be a duty lawyer available and that he should make those enquiries. I accept that the husband may have been feeling a little overwhelmed and although he said he did not believe he was required to appear again on that day, it was made clear that the matter had been stood down.

4. The husband says that once he got back to work, although he doesn’t say when that was, he received a text message from the wife advising him that the matter was to be heard later in the day, and that he was required to return to Court.  He said that he then immediately called the Court and spoke with the Registrar, although he doesn’t identify who it was he spoke to or what time it was.  He also says that he told the Registrar that he was prepared to come back to Court, but that it would take him around one and a half hours from where he works. He also says that the Registrar took his mobile number and told him she would call him if he was required to come back to Court.

5. The difficulty I have with the husband’s evidence is that I don’t have a timeframe for what he says occurred and in any event it probably would have been late in the day that the matter would have been dealt with.  The husband operates a business and it seems to me that whilst the Court environment may not be familiar to him, his explanation for leaving the Court is not satisfactory.

6. The wife now seeks the costs thrown away of that day. Those costs were reserved. The general rule in this Court is that parties bear their own costs unless there are reasons that justify the Court from departing from that general rule. It’s set out in s 117 of the Family Law Act1975 (Cth) (“the Act”). Section 117(2) of the Act sets out the matters the Court must consider with respect to any costs orders.

7. It is difficult for me to form any concluded view about the parties’ financial circumstances in this case, particularly with respect to the husband, given that he has filed two Financial Statements, on 17 December 2018 and 10 January 2019, the first which he prepared himself.  Although I’m not critical of that, because they are not always easy to prepare, his position is not totally clear.  The wife earns a regular salary, whereas the husband runs a business and may have an ability to call upon funds that someone working as an employee would not have.  Either way, I am not satisfied that the husband’s financial circumstances would preclude an order for costs being made against him, or that it is the wife’s financial circumstances that require the order to be made. 

8. In this matter it is really the way in which the husband has conducted the proceedings, in particular, leaving the Court as a result of which there had to be a hearing today, which would have been unnecessary had he stayed.  In those circumstances, I am satisfied that there are circumstances that justify an order for costs, and I propose to make the order the wife seeks.  The parties agree that those costs can be paid within 28 days and I will make that order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 January 2019.

Associate:

Date:  19 February 2020