Doumas and Milford

[2017] FamCA 576

FAMILY COURT OF AUSTRALIA

DOUMAS & MILFORD [2017] FamCA 576

FAMILY LAW – Enforcement – order clear.
FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Doumas

RESPONDENT: Mr Milford

FILE NUMBER: MLC 8603 of 2016

DATE DELIVERED: 1 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld QC

SOLICITOR FOR THE APPLICANT: Kenna Teasdale Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dixon QC

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

1. That the husband comply with his obligations under paragraph 7.2 of the orders made 3 March 2017 by 4.00pm on 22 August 2017 and to the extent that the solicitors for the husband have obligations under that same order, he give them instructions to ensure compliance with matters within their control are completed within 14 days..

2. Paragraphs 2 and 3 of the application in a case filed 30 May 2017 are dismissed.

3. That the husband pay the wife’s costs fixed in the sum of $4893.04.

4. Upon the court noting that that the husband asserts that he has responded to the request contained in the letter from the wife’s solicitors to the husband’s solicitors dated 10 May 2017 by either providing documents or alleging that certain documents do not exist, IT IS FURTHER ORDERED BY CONSENT that the wife’s application in a case filed 30 May 2017 and the husband’s response thereto filed on 21 July 2017 are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Doumas & Milford 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: MLC 8603  of 2016

Ms Doumas

Applicant

And

Mr Milford

Respondent

REASONS FOR JUDGMENT

1. By order made on 3 March 2017 by Registrar Mestrovic, the wife was to provide to the husband’s solicitors “up-to-date” redacted copies of her patient records.  The wife is a health professional.  As I understand the evidence, the work that is being examined here is outside her normal employment.  This work apparently is done at home.  It follows that for the purpose of paragraph 7.1 of the registrar’s order, copies of the records had already been in the hands of the husband and what the wife was obliged to do was to give updated details. 

2. The husband had photocopied a large number of records, which no doubt caused the wife, in her capacity as a health professional, some concern, bearing in mind confidentiality problems.  Paragraph 7.2 of the order said that within seven days of the receipt of those records, the husband was to cause his solicitors to return the copies of all photographs taken by him and any other record, and then as a personal obligation, for him to delete any electronic or other copy thereof. 

3. The dispute can be simply described this way.  The wife says she has provided the records;  the husband says that she has not.  In terms of the allegation about what she has not provided, there is no evidence before me as to the detail other than an assertion from the bar table – and, I accept, properly made – that there were 48 pages or records that were not provided but which had been presumably photocopied by the husband.  I do not know.  Why that issue came so late and why it was not sorted out with some clarity. 

4. There was correspondence between the respective solicitors in which the assertion was made that the wife had not complied with her obligations, and then a further counter-assertion by the wife that she had.  There was some suggestion today that the matter should be adjourned.  In my view, the registrar’s order is clear.  There is no evidence upon which I could make any determination other than that the husband has not fulfilled his obligation because he still has the records.  I am not in a position, therefore, to say that an adjournment would serve any purpose. 

5. The reality is that even if the matter came back on another occasion, we would be left in the same dilemma of working out whether or not the wife had complied.  In my view, the order should be complied with by the husband rather than the matter being adjourned.  To the extent that there are further inquiries, they can be made between the respective solicitors. 

6. Proposed orders 1, 3 and 4 are the only ones before me because paragraph 2 is not being pressed.  I do not propose to make an order in terms of paragraph 3 because there are many things that would need to be contemplated before the Court would be in a position to hear this matter on an undefended basis. 

7. It is as a result of discussion today that it becomes apparent that this matter is nowhere near ready for trial, even on an undefended basis.  The wife is not in a position at the moment to plead with particularity.  On that basis, the only order that I would be prepared to make is in terms of paragraph 1 of the wife’s application, save that I propose to give the husband 14 days within which the solicitors are to be given instructions to dispose of what they have and 21 days for the husband to comply with the personal obligation that he has to dispose of the electronic or other copies that he has in his possession.

   ORDERS DELIVERED

8. This is an application for costs by the wife.  Her position is that she seeks costs of $19,493.10 on an indemnity basis, and if unsuccessful on that claim, $4893 according to the scale.  Any costs order is opposed by the husband and on the basis that even if costs are contemplated, it is said they should be costs in the cause or adjourned to the trial judge.  In my view, the problem with costs being adjourned or costs in the cause, apart from the fact that they get lost in that cause, is that if indeed they are then raised before a judge who is a judge other than the person who has to determine this interim arrangement, it makes it very difficult to subjectively determine the justification issue which is set out in section 117. 

9. In my view, it is much better for the judge at the time to make a determination even if there is a prospect that the order might not necessarily be the one that a trial judge might make. 

10. In this case, section 117 is the governing provision.  It says that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify a departure from that principle.  If there is a departure from that principle because of justifying circumstances, the Court is obliged to take into account the matters set out in section 117(2A) of the Act. 

11. The justifying circumstance here is that an order was made, and having found that it has not been complied with, that is sufficient justification, in my view, to depart from the principle that each party should pay their own costs.  Before making an order for costs, however, I have to look at the matters in section 117(2A).  There are no legal aid considerations here.  There is already the finding made that the husband should have complied.  In terms of the financial circumstances, I am told that there are significant assets here.  It would be very difficult for me to make a finding that the parties are impecunious.

    RECORDED  :  NOT TRANSCRIBED

12. In those circumstances, there is no reason why an order for costs should not be made against the husband. 

13. The authorities in relation to indemnity costs are very clear;  the circumstances have to be exceptional.  One might say that failure to comply with a court order is the exception, but sadly, it is becoming the rule, particularly in circumstances such as this.  In my view, however, this is not a case where I should make an order for indemnity costs. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 August 2017.

Associate: 

Date:  8 August 2017