Di Guglielmo and Di Guglielmo

[2019] FamCA 1018

FAMILY COURT OF AUSTRALIA

DI GUGLIELMO & DI GUGLIELMO [2019] FamCA 1018

FAMILY LAW – COSTS – where the husband has been wholly unsuccessful in his application for a declaration that the Financial Agreement between the husband and wife is binding – order made for the husband to pay a contribution to the wife’s costs on the scale

Family Law Act 1975, s. 117
APPLICANT:	Ms Di Guglielmo

RESPONDENT: Mr Di Guglielmo

FILE NUMBER: BRC 11626 of 2012

DATE DELIVERED: 29 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 29 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Hackett

SOLICITOR FOR THE APPLICANT: Bruce Dulley
Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr M Anderson

SOLICITOR FOR THE RESPONDENT: Breen Smith

Orders

1. That the Court declares the Financial Agreement dated 10 August 2011 is not a binding Financial Agreement that complies with the requirements of the law.

2. That if any party wishes the Court to consider procedural issues that are in dispute, then provided such Applications supported by Affidavit are filed and served by no later than 4.00pm on 16 January 2020, the Applications shall be listed at 9.30am on 30 January 2020.

3. That the husband shall make a contribution to the costs of the wife in respect of the preparation for and hearing of the discrete hearing today, in a sum to be agreed between the parties, and failing agreement as assessed on a party and party basis, with the date for payment of such costs to be determined at the trial of the substantive property matters.

4. That these proceedings be adjourned for Case Management Hearing at 9.30am on 30 January 2020 in the Family Court of Australia at Brisbane.

5. That the property proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 11 March 2020 in the Family Court of Australia at Brisbane.

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 Di Guglielmo & Di Guglielmo 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 BRISBANE

FILE NUMBER: BRC 11626 of 2012

Ms Di Guglielmo

Applicant

And

Mr Di Guglielmo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. Although the Court is well aware that there are probably many issues that might touch on the question of costs of the proceedings, per say, since the wife commenced her Application in the Federal Circuit Court of Australia on 19 March 2014, I am prepared to consider the Application made by the wife for costs in respect of this discrete hearing.  The matter was listed for a discrete hearing and therefore, in my view, the costs can also be regarded as a discrete issue.  I appreciate that there have been other submissions made in writing and otherwise to other Judges in other Courts, and those issues may arise for determination in the global assessment of costs at the completion of the trial or otherwise, which is now listed before me on 11 March 2020 for three days.

2. One of the reasons why Courts exercise the power under the rules, and, in fact, under the law to deal with discrete issues, is to hopefully require that discrete issue to, once determined, open up opportunities for resolution, which, until determined, may not have been seen as available.  I have already expressed in a sense of frustration today that this matter has taken so long for this discrete issue to be determined, however when I listed the discrete issue in June 2019 for hearing today, I sought to limit the issue to those matters relating to the Binding Financial Agreement.

3. It was never intended by me at this stage to deal with property adjustment. The Application of the wife has always been from the earlier stage that the Financial Agreement ought not be binding. The husband’s position has been that the Agreement should be binding. Both parties acknowledge that there would be other proceedings necessary under Section 79 of the Family Law Act (“the Act”) even if the agreement is found to be binding in respect of property not otherwise covered by the Financial Agreement. However, as a result of the evidence I have heard today and as a result of the Order I have made, I am satisfied that circumstances exist within the meaning of s 117 of the Act to make an order for costs. Those circumstances also, by reference to section 117(2A) of the Act, primarily, but not only, relate to the fact that the husband – who bore the onus in respect of establishing that the Financial Agreement, dated 10 August 2011, was, in fact, binding – failed in the discharge of that onus.

4. Mr Anderson, Counsel for the husband, to his credit and properly having heard all the evidence, conceded that the application of the husband could not be successful, and that was a proper concession.  It could not be the case, in my view, that the evidence of Mr B, that came out today could not have been available to the husband, had proper enquiries and inspections been made.  The deficiencies in the husband’s case were not only on the face of the Agreement but were exacerbated by the evidence of Mr B today, which in many ways ran from the paucity of his file and the lack of certainty about how the process of entering in to the Financial Agreement was conducted.

5. These are all matters that could have been better understood and/or explored by the husband before he was bound to concede, having heard his own evidence from his own witness, that his case was doomed to fail.  Therefore, that would not be a reason to relieve the husband from the cost of the discrete trial that we have had today.  I do accept that it may well be that whilst these parties had access to significant – in different ways, perhaps – assets, their income may be modest.  They have been involved in litigation which has no doubt cost some significant sums of money.  However, it could not be said, looking at their financial circumstances as a whole, and in particular the husband, that he is unable to meet, at an appropriate time, a cost order.

6. In my view, I do not even need to consider whether there have been offers made in respect of this application today.  As Counsel for the wife Mr Hackett has pointed out, at least by 28 March 2017, the wife’s position in respect of the Agreement was well known to the husband.  For all those reasons, I propose to exercise my discretion to make an order that the husband make a contribution to the wife’s costs.  I propose to do it by the scale basis, it not being asserted by Counsel for the wife that the circumstances are so exceptional as to warrant an order for costs on an indemnity basis.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 29 November 2019.

Associate: 

Date:  30 January 2020