Dodd & Matthews

[2008] FamCA 844

FAMILY COURT OF AUSTRALIA

DODD & MATTHEWS [2008] FamCA 844

FAMILY LAW – ORDERS – Stay – Husband applied to have the consent orders made in February 2008 stayed pending his application to have those consent orders set aside – Stay application dismissed

FAMILY LAW – ENFORCEMENT OF ORDERS – Husband refused to comply with consent orders made in  February 2008 as well as orders made in July 2006 requiring him to pay half the fees of the single expert – Wife seeks to have those orders enforced – Application granted

FAMILY LAW – COSTS – Circumstances justifying the order – Husband’s proceedings are run without merit and he has repeatedly failed to comply with court orders and as a result the wife was forced to incur costs  – Husband ordered to pay $35000 to the wife towards her costs of opposing his stay application and $75000 towards her costs of the enforcement proceedings

FAMILY LAW – COSTS – Security – Wife seeks security for her Application for Summary Dismissal of Application under Sec.79A of the Family Law Act. Application granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Dodd

RESPONDENT: Mr Matthews

FILE NUMBER: NCC 1386 of 2008

DATE DELIVERED: 9 July 2008

PLACE DELIVERED: Newcastle

JUDGMENT OF: MULLANE J

HEARING DATE: 9 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamilton

SOLICITOR FOR THE APPLICANT: Kim Monnox & Associates

THE RESPONDENT: In Person

Orders

1. That forthwith the Registrar of the Family Court of Australia at Newcastle execute in the name of the husband the Form of Transfer for the transfer of the land Volume … Folio … in the State of Victoria being the property at B1 and B2.

2. By consent within seven (7) days the husband deliver to a Registrar of the Family Court of Australia the following documents:

   2.1      the Certificate of Title for the properties B1 and B2, Certificate of Title Volume … Folio … in the State of Victoria;

   2.2      the Discharge of the Mortgage registered No. … to the Australia and New Zealand Banking Group Limited;

   2.3      all other documents within the husband’s possession, custody or control which relate to the properties at B1 and B2, including but not limited to:

   2.3.1the purchase of the properties;

   2.3.2the subdivision or proposed subdivision of the properties;

   2.3.3the rates and outgoings of the properties.

3. The husband must pay to the accounting firm the sum of $4,360.29 plus interest at the prescribed rate since 28 August 2007 from the funds payable to him under Order 4 of 19 February 2008, from the parties joint account at the Commonwealth Bank.

4. The husband must pay to the wife from the amount payable to him from the parties’ joint account with the Commonwealth Bank pursuant to Order 4 of 19 February 2008 the following:

   4.1      any Council or Water Rates that accrued on B1 and B2 before 19 February 2008 and interest charged on them since then by the Council or Water Authority;  and,

   4.2      a sum of $97.40 for expenses of registering the Discharge of Mortgage on the property.

5. The husband must pay $3,500 to the wife towards her costs of opposing his Stay Application and pay $7,500 to the wife towards her costs of the Enforcement proceedings.

6. The wife is appointed attorney for the husband to do all acts and execute all documents on his behalf to implement Order 4 of 19 February 2008 and also Orders 3, 4 and 5 above.

7. On the husband’s application and by consent the wife’s Application in a Case filed 30 June 2008 seeking that the husband’s Application for Final Orders be summarily dismissed is adjourned to 10 am on Thursday, 28 August 2008 for a 3 hour hearing.

8. The husband must within 14 days file and serve a List of Particulars setting out each ground he relies upon under Section 79A of the Family Law Act and each fact or circumstance he alleges constitutes such a ground.

9. Pending further order the wife’s solicitor is to hold in an interest bearing account any funds to which the husband is entitled under Order 4 of 19 February 2008 as security for a possible costs order in the summary dismissal proceedings.

10. Otherwise the wife’s Application in a Case filed 10 June 2008 and the husband’s Response to an Application in a Case filed 8 July 2008 are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Dodd & Matthews is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1386 of 2008

MS DODD

Applicant

And

MR MATTHEWS

Respondent

REASONS FOR JUDGMENT

TRANSFER OF TITLE

1. The consent order was made on 19 February 2008 for the husband within 14 days to do all acts and things and sign all necessary documents to transfer to the wife at her expense all his right, title and interest in two properties in B.  Despite several requests made by the wife, he has refused to do so and the transfer has not been signed or returned. 

2. The husband's opposition to the application for an order for the Registrar to sign the transfer is on the basis that he has a s 79A application pending seeking to set aside the orders of 19 February. He has made one application for a stay of the orders of 19 February which was dismissed yesterday. He is proposing to make another application.

3. He says that pursuant to the orders there has been a superannuation splitting order implemented and he does not want to have to reverse other alterations of property interests pursuant to the property orders made on 19 February if he is successful in his s 79A application.

4. The difficulty about that argument is that he was unable to demonstrate that the s 79A application had any merit or even clearly articulate a ground. He has not articulated any ground in relation to any further application that he proposes to make or amendment he proposes to make in respect of the s 79A application. There does not on the face of it appear to be any likelihood that he will succeed either in the s 79A application or in any further application for a stay.

5. In those circumstances, there appears to be no reason why the enforcement order should not be made as sought to implement the order of 19 February.

   [ORDER DELIVERED]

FEES OF SINGLE EXPERT

1. In relation to the wife's claim for the husband to pay outstanding fees to the accounting firm who were single expert in the proceedings, there is already an order that the husband pay half their fees. That was made on 10 July 2006.  There is no dispute about the amount involved.  The account was rendered on 7 August 2007 and the husband's half share, including GST, was $4,360.29.  There is no dispute that he has not paid that, notwithstanding the order of the Court. 

2. The husband said he would be prepared to consent to an order that he pay the costs.  The issue that remained was the question of interest.

3. I am satisfied that interest is payable under s 117B of the Family Law Act and payable at the prescribed rate.  The rates prescribed are defined by r 17.03 of the Rules.

4. The other issue is that the wife seeks that that be paid by the husband from his share of the proceeds of their joint account at the Commonwealth Bank.  That entitlement is pursuant to order 4 of the orders of 19 February.  It provides for payment first of any sums necessary to discharge liability of either party to the Australian Tax Office (“ATO”) arising from their liabilities as a director of S Pty Ltd.

   RECORDED   :   NOT TRANSCRIBED

5. Accordingly, I agree that there does not seem to be any other source nominated by the husband from which the funds would be obtained to pay the accounting firm, so I therefore will make the order.

   [ORDERS DELIVERED]

6. The account is dated 7 August.  The account allowed 21 days for payment. So, it is reasonable that no interest run on the payment until 28 August 2007. 

   RECORDED   :   NOT TRANSCRIBED

COUNCIL AND WATER RATES AND MORTGAGE DISCHARGE FEES

1. Under paragraph 3 of the orders sought by the wife, she seeks that the husband pay a sum of money, being outstanding council rates and water rates, on the two properties at B that I have referred to earlier.

   RECORDED   :   NOT TRANSCRIBED

2. She seeks payment also of interest on those.  The obligation of the husband as at 19 February 2008 under order 1 was to transfer the properties unencumbered.  The husband disputes that rates are an encumbrance on real estate.  The fact is that the relevant local government legislation provides that rates are a charge on the land. If a person acquires a property with unpaid rates accrued on it then that person becomes liable for the rates.  The usual practice with conveyancing, of course, is that there is an adjustment on settlement between the purchaser and the vendor to allow for unpaid rates.   The unpaid rates and any interest accrued on them (payable to the rating authority) is deducted from the amount otherwise payable to the vendor. The purchaser becomes liable to pay the rates and any interest, being an encumbrance on the property.

3. I am satisfied that order 1 of the 19 February required the husband to pay the rates in respect of the period prior to 19 February and any interest payable on them.  The evidence is that he has not paid rates that were outstanding as at 19 February and accordingly he has not complied with the order.  There should therefore be an order for him to pay the rates.

4. Paragraph 2.2 of the orders the wife seeks is for the husband to pay $97.40 for registration of the discharge of mortgage in respect of the mortgage on the Title of the property.  The husband disputes that that is an encumbrance.  Clearly the mortgage is a security to a third party in respect of various matters (which may include debts to be incurred by the husband after the date of the orders), all sorts of things.The discharge has been executed but not registered and, accordingly, there is still an encumbrance on the title to the property.  In equity that may be removable.  But at law the property is still encumbered and the husband, who had responsibility to transfer it unencumbered, has not done so. 

5. The wife will incur expenses, she says, of $97.40 to have the discharge of mortgage registered and, accordingly, the husband should bear that liability as it is a liability he would have assumed if he had honoured his obligation under order 1 of 19 February.

   [ORDER DELIVERED]

APPOINTMENT OF REGISTRAR

1. The wife seeks orders that would remove the husband from participation in decisions or signing authorities or whatever for the distribution of funds in the joint Commonwealth  Bank account of the parties which were to be distributed pursuant to order 4 of 19 February to

   ·discharge any tax liability of the parties arising from any liability as a director of S Pty Ltd; and

   ·then divide the balance between them.   

2. She seeks that the payment of those funds and also the payment of amounts that the husband is liable to pay from any amount he receives from those funds should not be within his control or influence and she proposes that a Registrar be responsible for doing whatever is necessary to implement those orders. 

3. The husband has demonstrated, not just in relation to the orders of 19 February but also in relation to the orders made as far back as July 2006, that he cannot be relied upon to comply with Court orders.  He has repeatedly failed to comply with the Court’s orders.  And it appears that on many occasions he had no reasonable grounds for failing to comply with his obligations under the orders.  His non compliance was not just in relation to orders that benefit the wife. The other obvious example today is an order that was made in 2006 regarding payment of fees of the single expert.  The account for those fees was rendered in August last year and he still has not paid any part of them. 

4. There is also the issue of rates where he was liable to pay rates on the property prior to the orders of 19 February this year and he has not paid those rates.  He has refused to pay the costs of the discharge of the mortgage, although he is clearly liable to ensure the property is transferred unencumbered and that cannot be done without the mortgage discharge being registered.

5. In those circumstances, I am satisfied that the husband will not acquiesce in any division of the funds in the Commonwealth Bank.  But that conclusion also is justified because it appears that his attitude is that he will not comply with orders unless he gets what he wants, which is a significant amount to be paid to the ATO or set aside and preserved purportedly for any liability of him or the wife in their capacity as directors of the company, S Pty Ltd.

6. In regard to what liability they might have in that capacity, the wife provided evidence in 2007 that she had received a Notice of Director's Liability from the ATO in May 2007 claiming an amount of about $44,000 from her in respect of the company arising from her period as a director of the company.  But she also provided a document from the ATO of 1 April 2008 advising that the amounts in question were paid by the company and she has no further liability.  That is Exhibit W1. 

7. The husband has not provided anything from the ATO or any other evidence, to establish that that advice of 1 April 2008 is not still current and that there is some such liability of the wife.  He has not provided any evidence of any other Notice of Director's Liability from the ATO to the wife.  He does not provide evidence of and nor does he suggest that he has ever been served with a Notice of Director's Liability in respect of the company. 

8. What he does do is to seek to rely upon a document from the ATO advising of a debt of about $67,000 owing by the company to the Tax Office.  But that document does not include any evidence that either of the parties is liable for any part of it.  It is a misrepresentation of the document, and in fact, dishonest, of the husband to pretend that the document somehow infers that the directors have a liability to the ATO. 

9. It is common ground from the hearing yesterday that the company has been in liquidation since May 2007. The husband has not provided any evidence regarding the liquidation and the surplus or deficit. He was the sole director in the period leading up to the liquidation.  He has provided no evidence of the financial state of the company in the period prior to the liquidation.  He has provided no evidence of what has happened in the liquidation, how much has been paid to the ATO and what the debt to the ATO was in the liquidation. 

10. There is no evidence that there is any present liability of either of the parties to pay any amount to the ATO whether arising from liability as a director of the company or otherwise.  But the husband continues to contend that there is such a liability and opposes the funds in the joint account being distributed to the parties without some payment to the ATO or some amount being preserved for alleged liability to the ATO.  His position in that regard is not justified by any evidence.  It is a bloody-minded position that he rigidly adheres to, despite the facts.  

11. I am confident that he would not voluntarily or even with the duress of a Court order sign any withdrawals from the Commonwealth Bank account or effect any withdrawals from the account unless he gets his way in respect of what he alleges is a liability to the ATO by one or both of the parties arising out of their positions as director of the company.  There should therefore be an order taking out of his control or involvement the distribution of funds from the joint account and also the payment of amounts he is liable to pay under the orders of 19 February or the orders made today in these proceedings.

12. I do not think it is appropriate that the Registrar be involved, because of the further delays that might occasion to the wife.  There has already been five months pass since the orders made in February and the husband has managed to obstruct implementation of the orders for all that time. 

13. It seems unnecessary that the Registrar be involved.  The proper order would be for the wife to be appointed as attorney for the husband to do all acts and sign all documents to implement the orders in relation to the distribution of the money in the joint account and also in relation to the payment by the husband of amounts he has been ordered to pay.

    RECORDED   :   NOT TRANSCRIBED

THE WIFE’S APPLICATION FOR COST OF THE STAY PROCEEDINGS AND THE ENFORCEMENT PROCEEDINGS

1. Mr Hamilton has already described the provisions of the Act.

   RECORDED   :   NOT TRANSCRIBED

2. The wife in these proceedings in relation to the stay application of the husband and also her application for enforcement of the orders of 19 February this year seeks an order that the husband pay her costs. 

3. The normal provision of the Act regarding costs in proceedings under the Family Law Act is sub-s 117 (1) and it provides that subject to certain specified provisions of the Act:

   "each party under this Act shall bear his or her own costs."

4. Subsection (2) is one of the provisions that is referred to as an exception and that says that in proceedings under the Act if the Court is of the opinion there are  circumstances that justify it doing so, the Court may make such order as to costs as the Court considers just.

5. That power is required to be exercised having regard to the matters in sub-s (2A) of the section and the first of those matters is paragraph 117(2A)(a): the financial circumstances of each of the parties.  The wife has filed a financial statement and the husband has addressed on the issue of the accuracy of the financial statement.  He says the wife does not disclose any superannuation contributions being paid by her employer.  It appears that she is in full time employment.  She does not say, but she has been in the employment for five years and 11 months and it would, I think, be a reasonable inference that the employer has to comply with the legislation requiring a minimum contribution of 9 per cent of her salary.  And accordingly, in addition to her salary her employer, it appears, probably pays 9 per cent of her salary into her superannuation.  Her weekly wage is $1958 approximately so about $178 a week is paid to her superannuation fund by her employer.  

6. Otherwise, her circumstances seem to be that her income is $2374 gross per week and her expenses are $264 per week.  Including the B properties, she has assets of about $510,000 and owes debts of about $183,222. So that her net equity of property and liabilities is approximately $327,000. She also has superannuation entitlements of about $162,000.

7. The husband, on his statement of financial circumstances, has it appears after one deducts $440,000 as the value of the B properties, property worth about $413,000.  He claims he has liabilities of about $575,000 which would leave him with a deficit in terms of his property and liabilities.  He has superannuation worth, he says, $118,000.

8. I am not prepared to make a finding that the husband does have liabilities exceeding his assets.  The main reason for that is the obvious inaccuracy of his figures for liabilities.  He clearly has included in his financial statement amounts as debts which are not debts, including the total that I referred to of amounts that are in the schedule for his document.  Amounts in Schedule B are only contingencies or absolutely false.  He has no liability for subdivision fees of the B property.  The property has not been subdivided.  It is to be transferred to the wife since the orders in February and if it is going to be subdivided, the wife is the person who will be responsible for the expense of it.  Indeed, he says in his own evidence that there was an adjustment made in the consent orders of $9000 to allow for the fact that the wife would be the person responsible if there was to be a subdivision. 

9. Similarly, he includes nearly $25,000 which he claims is a debt for the sale costs on the B properties, but he has not sold them.  Furthermore, he claims an estimated capital gains tax on the sale of the properties of $70,000 but there has been no assessment rendering him liable for any tax in respect of that and, indeed, there is an issue about whether there would be a capital gains tax liability in the circumstances of a transfer pursuant to orders under the Family Law Act.  He then continues with estimated liabilities for brokerage and stamp duty and capital gains tax on the sale of shares.  But again, there is no evidence that he has been assessed of any liability or that he has incurred a debt for brokerage or stamp duty on the sale of shares. 

1. Those amounts come to $116,752 which makes quite a difference to the figures that he has given.  In addition, he has included in the document a debt of approximately $13,000 which he claims he has, but in fact is really a contingency only.  It relates to a guarantee that has given.  And furthermore, in item 53 he has alleged a debt of his share of a liability to the Australian Tax Office of $67,106 in respect of the debts to the Tax Office for S Pty Ltd and for reasons I have already stated there is no evidence there is any liability by him or the wife in respect of the $67,106.

2. Given those misstatements and the falsities in his document, one would have serious hesitation in placing any reliance on it as to his liabilities and the full extent and value of his property at present. 

3. His income he discloses is $77 and he claims his expenditure is $3042 weekly.  He is unemployed but he has a background of being in full time employment and the circumstances of him becoming unemployed are only explained by him where he says he became redundant.  And there is no evidence, really, as to his working capacity or any efforts to obtain employment. 

4. It seems that the wife is in a stronger position than the husband as to superannuation, as to her net position in terms of assets and liabilities and in terms of her income, although I am not sure about her earning capacity, whether that is superior to his.  Certainly his expenditure level is much higher than hers.  I do not know whether that is because of his past level of income or what.

5. I take into account that the wife has the financial support of two children of the parties. 

   RECORDED   :   NOT TRANSCRIBED

6. The husband alleges that he is paying $44 per week in child support for those children, one of whom he says is 14 and one 12.  Clearly the cost of keeping the children would be well in excess of $200 per week for each child.  That is based on the published research of the costs of keeping children in Australia. 

   RECORDED   :   NOT TRANSCRIBED

7. On his evidence it is clear that the wife provides the large majority of the financial support for those two children and she also supports a third child, I am told, who lives part of the time with her and the husband provides equal support for that child by accommodating that child for half the time. 

8. Para 117 (2A) (b) is legal aid. Neither party as far as I am aware has any benefit of legal aid in the proceedings, either the stay application or the enforcement application. 

9. Para 117(2A)(c) is conduct of the parties in relation to the proceedings. The findings that I made yesterday in relation to the stay application, and again today, reflected poorly on the husband in relation to his conduct. In relation to his conduct in respect of the stay application, he had not, at the time we commenced the hearing, provided any particulars of his claim under s 79A on which he based his stay application and in the Court room he was unable to tell me in any clear way what the grounds were that he relied upon under s 79A of the Act to allege a miscarriage of justice to support his application to set aside the consent orders of 19 February.

10. The husband's affidavit material in both proceedings yesterday and again today did not focus on the relevant matters before the Court but were wide-ranging and full of irrelevant material that caused unnecessary expense for the wife in terms of her solicitor having to read that and brief counsel with copies of it and her solicitor and counsel having to become familiar with it and canvas it.

11. His conduct yesterday and today, of course, has been in a similar vein in that he frequently raises material or issues that do not have substance or are irrelevant.  All of that conduct has lengthened both hearings and resulted in additional costs to the wife. 

12. The next matter is par 117(2A)(d):

    "whether the proceedings were necessitated by the failure of a party to proceedings to comply with previous orders of the Court."

13. This is a very serious matter in relation to the enforcement application because the husband's behaviour has been widespread in relation to non-compliance with orders.  On the one hand there is an order made in 2006 which he had not complied with although it required him to pay the expert's fees.  He received the account from the expert in July last year and as of today, I think it is July, he still had not paid it or paid any part of it and nor did he appear to have any intention of doing so. 

14. In relation to the orders of 19 February he really disputed only one order, which was the order in respect of the funds in the joint account with the Commonwealth Bank.  And the argument that he raised, the only argument, seemed to be that he was contending that either there is a debt to the Australian Taxation Office by one or both of the parties in the capacity as director of the family company, or there will be or may be in the future, and that therefore part of the moneys should be paid to the Tax Office rather than divided between the parties. 

15. That argument had no legs because there is no evidence that there is any such liability and, indeed, in the wife's case there is evidence that there was a liability in the past in 2007 but that has since been paid from the company. 

16. The husband does not seem to have made any inquiries of the liquidator as to what the situation is with regard to the company's liabilities but been prepared to obstruct the implementation of the Court's orders and refused to sign documents or comply with the orders.  But it gets worse because his non-compliance was not limited to that order.  There is no suggestion that compliance with the other orders would prejudice the opportunity to meet a liability, even if there were one, to the Tax Office.  And so he gives no explanation, really, as to his pigheadedness in refusing to comply with numerous other orders that were made.  

17. He has refused to hand over documents he is required to provide under order 2 and refused to provide a signed transfer and comply with his obligations under order 1 to transfer the B properties to the wife. 

18. He failed to pay rates that were his liability for rates on the property he was to transfer to the wife.  He refused to pay for the discharge of mortgage expenses in order to discharge the mortgage on the property in order for him to comply with his obligation to transfer the property unencumbered. 

19. He has refused to comply with the February orders for five months now.  For 11 months he has failed to comply with the order for him to pay the accounting firm’s account. They have provided him with numerous reminders since August 2007 but he did not respond to them.  He ignored them. 

20. The enforcement proceedings were necessary because of the husband’s failure to comply with court orders.

21. Para 117(2A)(e) is “whether any  party to the proceedings has been wholly unsuccessful”. The husband has been wholly unsuccessful in both proceedings.

22. Para 117(2A)(f) is settlement offers.  As far as I am aware there has been no settlement proposal made by either party to the other in either application. 

23. With regard to the stay application, I find that the husband should pay the wife’s costs because of:

    ·His conduct in relation to the application;

    ·the lack of merit in his application and the indiscriminate seeking of a stay of all the orders rather than a specific order;

    ·the fact that he was wholly unsuccessful; and

    ·the fact that he initiated the proceedings, and the wife was put to the expense of opposing the application by him and had no legal aid.  

24. With regard to the enforcement proceedings, I find that the husband should pay the wife's costs of the proceedings because of :

    ·the husband’s conduct in the proceedings;

    ·the fact that he was wholly unsuccessful in opposing the application;

    ·the fact that the proceedings were necessitated because of his non compliance with court orders; 

    ·the fact that the enforcement proceedings arose from the widespread refusal by him to comply with court orders and longstanding continuing refusal without any reasonable grounds for those refusals; and

    ·the orders the wife sought to enforce were financial orders, the wife does not have any legal aid, and the indirect effect of costs incurred in enforcing the orders would be to deprive the wife of part of her entitlements under the consent orders of 19 February. 

25. In the stay application, the lack of merit, his approach of seeking to stay all the orders rather than just order 4, under which his argument seems to arise and his conduct in poor preparation and in the courtroom in my view, together amount to what the Full Court has referred to as “exceptional circumstances” that would justify an indemnity order. 

26. With regard to the enforcement proceedings his widespread and persistent non compliance with court orders, his conduct in the proceedings, the lack of any merit in his case and the implications for the wife of costs incurred enforcing the consent orders and the orders for payment of the single expert’s fees amount to “exceptional circumstances” and justify an indemnity order. 

27. I have some apprehension about making a full indemnity order.  I am not saying that I could not be satisfied today that the whole of the material that is included in the itemised accounts, for example, related particularly to these proceedings. But I think for both parties it is better if I quantify the order.

28. In relation to the stay proceedings, the assessment is roughly $2,820 under the scale for solicitor/client basis and under the cost agreement between the wife and her solicitor $3,893.  In relation to the enforcement, the figure under the scale for solicitor/client costs is roughly $5,730, roughly and under the cost agreement, roughly $8,330.

29. I think in the circumstances rather than a full indemnity costs, the husband should pay, and I say they are exceptional circumstances and I did make a finding today that his conduct had been bloody-minded and I should mention also the orders that he did not comply with from 19 February were orders made with his consent and his non-compliance with the account of August 2007 was some 11 months.  I think the figure should be $3,500 for the stay application and $7,500 for the enforcement proceedings.

    [ORDERS DELIVERED]

SECURITY FOR COSTS OF WIFE’S APPLICATION FOR SUMMARY DISMISSAL OF HUSBAND’S SEC.79A APPLICATION

1. The only funds the wife has access to that could be used for that is the joint account.

   RECORDED   :   NOT TRANSCRIBED

2. This is an exceptional case, as I said earlier.  And as I said earlier, I have no confidence that the husband would pay any amount ordered to be paid, particularly if it was ordered to be paid for costs of the wife.  She has incurred costs of $12,250 roughly in respect of the matters yesterday and today and I think she has been awarded in respect of those an amount of $11,000, so already there is a serious shortfall there and those proceedings were run by the husband without merit.

3. Yesterday the application for final orders as brought under s 79A of the Act to set aside consent orders made in February was not shown to have any merit.

4. The wife's concern is that if there are funds payable to the husband from the joint Commonwealth Savings Bank account and they are paid before this issue is resolved, there is a likelihood that the husband's application will be dismissed and that he will be ordered to pay costs, not only because of being wholly unsuccessful conduct in those proceedings, but also bearing in mind his background in these other proceedings where she was forced to incur costs, some of which she is unable to recover.

5. This is an unusual situation.  It is a situation where the husband's behaviour in the court in the proceedings is culpable.  He does not seem to have any concern about what costs anyone else in the proceedings incurs and nor does he seem to have any rational approach to defining what his applications are about and whether they are matters of substance.  In those circumstances I think that she should have the order she seeks. 

6. The estimate is that at most $18,000 would remain of the funds in the account to be paid to him and it may be that the husband on a later date can justify part of those funds being paid out to him, but at this stage this situation does not support such an order. On the contrary, the circumstances support the wife having those funds held as security for her costs of her application for summary dismissal of his s 79A application.

I certify that the preceding 73 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane J

Associate: 

Date:  1 September 2008