DANIELS & GREEN

[2016] FamCA 264

FAMILY COURT OF AUSTRALIA

DANIELS & GREEN [2016] FamCA 264

FAMILY LAW – PROPERTY – interim orders – where the wife seeks an order that the husband discharge the mortgage and remove the caveat over the property and execute a loan application – where the order is opposed by the husband – where there are ongoing proceedings in the District Court in relation to the caveat – where the Court considers that on an interim basis it is not appropriate to make an order that would increase the debt of the parties – where the wife has provided limited detail in her affidavit about the purpose and use of the loan – where the application is dismissed.

FAMILY LAW – COSTS – where the husband seeks an order for costs – where the wife has been wholly unsuccessful – where consideration is given to the financial circumstances of the parties – where the application for costs is dismissed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Daniels

RESPONDENT: Mr Green

FILE NUMBER: ADC 3227 of 2014

DATE DELIVERED: 14 April 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Horvat

SOLICITOR FOR THE RESPONDENT: Budwal Lawyers

Orders

(1)The Applications in a Case filed by the wife on 26 February 2016 and 15 March 2016 and the Responses filed by the husband on 15 March 2016 and 7 April 2016 are dismissed.

(2)No order as to costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 3227 of 2014

Ms Daniels

Applicant

And

Mr Green

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.I have before me this morning Applications in a Case and Responses filed in this matter which was transferred earlier this year from the Federal Circuit Court. 

2.The parties have proceedings which have been ongoing since September 2014 in relation to financial matters.  The current Applications in a Case which the wife has filed are those which were filed on 26 February 2016 and 15 March 2016.  The wife is unrepresented and, therefore, allowances have to be made for her lack of legal advice. 

3.The first Application in a Case seeks orders that the matter be dealt with urgently and that the husband execute the discharge of mortgage over B Street, Suburb C and execute a loan application.  That Application in a Case was supported by an affidavit.

4.In response to that Application in a Case, the husband filed a Response on 15 March 2016 seeking that the application be dismissed and that the applicant pay the respondent’s costs and “such further or other order as this Honourable Court deems fit”.  He filed an affidavit in support of that Response. 

5.Subsequently, the wife filed the Application in a Case on 15 March 2016 and a further affidavit.  That affidavit annexes material which includes correspondence setting out offers which should be considered without prejudice.  Therefore, the reference to the offers made and the negotiations concerning those offers and the annexure should be deleted.  I will leave them on the file, but have deletions made pursuant to these orders. 

6.The Application in a Case filed on 15 March 2016 again seeks urgent orders that the husband execute the discharge of the mortgage over B Street, Suburb C and execute loan applications, that he remove the caveat over B Street, Suburb C for loan approval, that he vacate B Street, Suburb C.  The application then refers to factual matters which are not actually applications.  I take that into account on the basis that the wife is unrepresented.  She filed an affidavit in support of that application.  The Response to the Application in a Case filed by the husband seeks the dismissal of the wife’s application that she pay his costs of the application and, again “such other orders as the Court deem fit”. 

7.I have already ruled that I would not hear an oral application this morning made on behalf of the husband for the wife to be restrained from dealing with the property at B Street on the basis that the wife was not given appropriate notice and it would not be just and equitable in these circumstances to deal with the matter on that short basis, taking into account the husband was aware of the application by the wife from approximately 10 March 2016. 

8.I also take into account the fact that the Court is told from the bar table this morning that the hearing in relation to the wife’s warning of the caveat and the extension of time the husband is now seeking in response to the warning of the caveat are listed to be dealt with in the District Court soon.

9.The husband chose to file a caveat over the property owned by the wife, alleging an interest in the property.  Therefore, if he has chosen to apply a caveat over properties pursuant to the state law, those matters need to be dealt with pursuant to the state law. 

10.The matter that is before me today, therefore, relates to the wife’s desire to borrow funds secured against the property at B Street to enable her to set up a business to earn an income.  The dispute between the parties as to the financial matters has not yet been determined.  There are significant matters concerning the capacity of the husband to provide support for the wife.  The assets and liabilities of the husband are operated through what primarily appear to be a trust involving himself and his brother and relate to a significant number of properties of significant value, but which are apparently also the subject of borrowings and liabilities.

11.The Application in a Case by the wife seeks that the husband discharge the mortgage over the property at B Street, remove the caveat and allow the property to be the subject of a residential agreement so that the wife can borrow money to set up a business to support herself and her child.  The difficulty I have with this application is that it is an interim application when many disputed facts have not yet been determined. 

12.In order to make an injunction directed against the husband in this case it would be necessary to consider whether that injunction is just and equitable and take into account the overall impact it would have upon the financial circumstances of the parties. 

13.I, therefore, consider that on this interim basis, and taking into account the disputed material, it is not appropriate to require the husband to increase the debts of the parties without any clear indication from the wife in her affidavit material of how much would be borrowed, how it would be used and what assets or business benefits might thereafter be created. 

14.I accept that the wife is in a difficult financial position, but, notwithstanding the acceptance of that difficulty, I am not in a position to increase the overall indebtedness of the parties by ordering the husband to discharge the mortgage and allow the property to be freshly mortgaged for borrowings to allow the wife to set up a business. 

15.I propose to dismiss the Applications in a Case and the Responses. The significant provision in relation to costs is that each party bear their own costs, save and except where the Court considers it otherwise appropriate, taking into account the factors in s 117. I am not satisfied on the current material before me that the wife’s financial circumstances would warrant any order for costs, taking into account the financial difficulties which she has alleged and which do not appear to be disputed significantly by the husband. I also take into account that the husband is the one who has control over at least 50 per cent of the business which benefits from loans secured over the real estate properties which prevent the wife from carrying on a business to give her an income.

16.I have heard the submissions on behalf of the husband.  I take into account that the husband has been successful and the wife has been wholly unsuccessful in her Applications in a Case.  The significant factor however in this matter which needs to be considered are the financial circumstances of the wife compared to the financial circumstances of the husband and the brief affidavits filed by the husband. 

17.I take into account the fact that the wife filed two Applications in a Case seeking, basically, the same orders.  The Responses would be almost automatically generated by a reasonably qualified lawyer, so the costs involved there would not be significant.  This would also apply to the affidavits filed by the husband.

18.The overriding factor is the provisions in s 117 which suggests that each party bear their own costs. Taking into account that the wife has been wholly unsuccessful and balancing that with the husband’s financial circumstances and the wife’s difficult financial circumstances, I am not satisfied that there is sufficient basis upon which to override the normal requirement that each party bear their own costs.

19.I have heard the submissions in relation to making an order which would provide for those costs to be determined at a later date or for them to be determined and paid out of any final property settlement.  Again, those submissions do not override the current circumstances in which the matter is being dealt with and, therefore, I make no order for costs and dismiss both Applications in a Case which would also dismiss the Responses.  I note that the matter has already been placed in a list awaiting allocation of a trial date.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 April 2016.

Associate: 

Date:  22 April 2016