FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Douglass & Hearn [2022] FedCFamC1F 112
File number(s): SYC 1843 of 2021 Judgment of: CAMPTON J Date of judgment: 9 March 2022 Catchwords: FAMILY LAW – COSTS – Where the wife commenced parallel proceedings in Australia and in the B State Supreme Court for property adjustment subsequent to a marriage breakdown – Where the husband made an application for an anti-suit injunction restraining the wife from prosecuting her relief in the B State Supreme Court – Where such anti-suit injunction was initially resisted and later consented to by the wife – Where the husband now seeks indemnity costs in a fixed sum of his application for an anti-suit injunction – Where the wife had consented to the making of s 79 partial property adjustive orders in this Court while at the same time contending Australia was a wholly inappropriate forum for property adjustment – Where the wife had not complied efficiently with Orders of this Court – Obligation on litigants to conduct litigation in a reasonable and proportionate way – Where the wife’s conduct warrants a departure from the usual rule that each party – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79, 117
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) rr 1.04, 12.17
Cases cited: Atkins & Hunt [2017] FamCAFC 131
Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 25 February 2022 Place: Sydney Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Clinch Long Woodbridge Counsel for the Respondent: Mr Stapleton Solicitor for the Respondent: Meredith Lawyers ORDERS
SYC 1843 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DOUGLASS
Applicant
AND: MR HEARN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
9 MARCH 2022
THE COURT ORDERS THAT:
1.That within 21 days of the date of this order the wife pay to the husband the costs of and incidental to the anti-suit injunctive orders made on 27 January 2022 in the sum of $40,000.
2.That within 21 days of the date of this order the wife pay to the husband the costs of this costs application in the sum of $7,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated…
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- AGLC
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- Case
- [2022] FedCFamC1F 112
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CaseChat Overview and Summary
In the matter of Douglass & Hearn, the Federal Circuit Court of Australia considered the husband’s application for an anti-suit injunction and his application for costs. The husband, who suffers from Alzheimer’s disease and vascular dementia, sought to restrain the wife from proceeding with divorce and property settlement proceedings she had commenced in another Australian state. The wife had filed an initiating application for financial adjustment in the Federal Circuit Court on 16 March 2021, the day before the husband was served with the B State proceedings. The husband argued that the wife had improperly withdrawn approximately $2.5 million from their joint accounts and sought an order for her to transfer her interest in their jointly-owned property and vehicle to him.
The primary legal issue before the court was whether the husband’s application for an anti-suit injunction and his subsequent application for costs should be granted. The court had to determine whether the wife’s actions in filing proceedings in another jurisdiction were vexatious or oppressive, and whether the husband's application for an anti-suit injunction was justified. Additionally, the court needed to decide whether the husband's financial managers, appointed due to his cognitive impairment, could bear the costs of his applications, or whether the wife should be ordered to pay those costs.
The court found that the wife’s actions in initiating proceedings in another jurisdiction were vexatious and oppressive, as she had commenced proceedings the day before the husband was served with the B State process and had not made appropriate financial disclosures. The court granted the husband’s application for an anti-suit injunction, restraining the wife from proceeding with the B State proceedings. Given the husband’s cognitive impairment and the financial managers’ involvement in his applications, the court considered it just to order the wife to pay the husband’s costs of the anti-suit injunction and his application for costs. The court’s decision recognised the need to protect the husband from further financial and emotional distress due to the wife’s actions.
The primary legal issue before the court was whether the husband’s application for an anti-suit injunction and his subsequent application for costs should be granted. The court had to determine whether the wife’s actions in filing proceedings in another jurisdiction were vexatious or oppressive, and whether the husband's application for an anti-suit injunction was justified. Additionally, the court needed to decide whether the husband's financial managers, appointed due to his cognitive impairment, could bear the costs of his applications, or whether the wife should be ordered to pay those costs.
The court found that the wife’s actions in initiating proceedings in another jurisdiction were vexatious and oppressive, as she had commenced proceedings the day before the husband was served with the B State process and had not made appropriate financial disclosures. The court granted the husband’s application for an anti-suit injunction, restraining the wife from proceeding with the B State proceedings. Given the husband’s cognitive impairment and the financial managers’ involvement in his applications, the court considered it just to order the wife to pay the husband’s costs of the anti-suit injunction and his application for costs. The court’s decision recognised the need to protect the husband from further financial and emotional distress due to the wife’s actions.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons as set out herein, it is just in the circumstances to depart from the usual rule that each party bear their own costs of the husband’s application for an anti-suit injunction restraining the wife from progressing the proceedings she initiated in the B State Supreme Court, such that the wife pay the husband’s costs of that relief and of his application for costs heard on 25 February 2022.BACKGROUND The husband in this matter was born in 1949 and is 72 years of age. He commenced living with Alzheimer’s disease in December 2017. In March 2020 his diagnosis of a “mixed Alzheimer’s and Vascular Dementia” was confirmed. The wife was born in 1951 and is 70 years of age. She is in good health. The parties married in 2015 in City C, D State in the United States of America (“USA”). The husband contends the parties separated on 1 June 2020. The wife contends separation occurred on 1 August 2020. It is the husband’s case that the parties lived together in Sydney from early 2016 until the date of separation. On 5 February 2021 the wife commenced divorce proceedings in the B State Supreme Court. An adjunct of the divorce proceedings in B State was a claim for property adjustment identified as a declaration of separate property and as an equitable distribution of marital property. That process was served on the husband on 17 March 2021. The wife filed an Initiating Application in what was then the Federal Circuit Court in Sydney on 16 March 2021 seeking orders for financial adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Broadly, her relief sought that the husband pay to the wife the equivalent of 30 per cent of the value of a jointly owned property located at E Street, Suburb F (also identified as Location G), (“the Location G property”), implicitly that the husband thereafter retained that real property, and that the wife be declared the sole beneficial owner of funds held in a joint National Australia Bank (“NAB”) account of the husband and the wife. On an interlocutory basis she sought an order that she be granted sole occupation of the Location G property and liberty to access and to withdraw funds from the joint NAB account. Self-evidently, this Initiating Application was filed the day before the husband was served with the B State process. The Initiating Application filed on 16 March 2021 was served on the husband on 3 May 2021. On 11 March 2021, the NSW Civil and Administrative Tribunal ordered that the husband’s daughter, Ms H, and his accountant, Mr J, be appointed his financial managers pursuant to the Guardianship Act 1987 (NSW). By orders made in this Court on 18 October 2021, they were each appointed as the husband’s Case Guardians in these proceedings. The husband filed a Response to an Initiating Application on 9 June 2021 seeking orders that the wife transfer to him all of her interest in the Location G property and her interest in a jointly held motor vehicle. He also sought a cash adjustment payment from the wife to be particularised upon exchange of disclosure. It was the husband’s contention that the wife had sourced from the husband’s bank accounts and retained or not accounted for approximately $2.5 million withdrawn from financial institutions in Sydney to a bank account in her name in B State.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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