F and F (No.2)
[2002] FMCAfam 427
•24 December 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & F (No.2) | [2002] FMCAfam 427 |
| FAMILY LAW – COSTS – Offer of settlement. |
Family Law Act 1975, ss.117(1), 117(2), 117AA, 118
Family Court Rules, Order 29 Rule 1
Federal Magistrates Court Rules, Part 21.10, Part 21.15, Schedule 1
| Applicant: | B N F |
| Respondent: | W D F |
| File No: | ADM4146 of 2001 |
| Delivered on: | 24 December 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 10 December 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Noble |
| Solicitors for the Applicant: | Hume Taylor & Co |
| Counsel for the Respondent: | Mr McQuade |
| Solicitors for the Respondent: | Moody Rossi & Co |
ORDERS
That the husband arrange for collection by a carrier to be nominated and paid for by him of the items set out in order 3(i) – (xiii) of the orders of 17 September 2002 from the wife’s home on a weekday after giving 14 days notice in writing to the wife of his intention to arrange collection of the items.
IT IS NOTED: that item 3(xi) includes the following items:
(i)an eight person tent;
(ii)a gazebo;
(iii)two single air mattresses;
(iv)two single sleeping bags;
(v)one portable fridge;
(vi)two litre jerry cans;
(vii)a solar shower;
(viii)assorted tarpaulins;
(ix)a gas cooker and bush barbecue.
That the wife pay 75% of the husband’s costs pursuant to Part 21.10 and Schedule 1 of the Federal Magistrates Court Rules in respect of the hearing before the Court on the 17th of September 2002.
Pursuant to Part 21.15 of the Federal Magistrates Court Rules that I certify it reasonable to employ an advocate for hearing of this matter.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
(P)ADM 4146 of 2001
| B N F |
Applicant
And
| W D F |
Respondent
REASONS FOR JUDGMENT
Introduction
These are supplementary reasons for judgment in the matter of F and arise as a consequence of orders that I made on 3 October, 2002 in the matter of F & F [2002] FMCAfam 328. As a result of these orders, the husband seeks orders that can be divided into three categories. Firstly, he seeks orders in respect of the collection of certain items of property from the parties’ former matrimonial home at 11 A Road, H V, which property is presently occupied by the wife. Secondly, the husband seeks orders in respect of a number of additional items of property. Thirdly, he seeks an order for costs as a result of an offer of settlement which was made by him on the 17th of August 2002.
As was indicated in paragraph 3 of the reasons for judgment of
3 October 2002, the principle hearing of this matter occupied some 5 sitting days between 25 March and 17 September 2002. The majority of this time was taken up with issues to do with the husband’s contact to the parties’ two children and to medical issues related to the husband’s psychiatric condition. The issues relating to the children were settled by consent following the production of a family report. Accordingly, of the 5 sitting days, only the 17th of September 2002 was devoted solely to the issue of matrimonial property.
Out of respect for the sensitivities of the parties, in the reasons for judgment, I refrained from indicating my view that the parties had a strong antipathy for one another and as a result had the greatest difficulty in reaching agreement about even the most trivial of matters between them. Sadly, subsequent events have shown that, notwithstanding the final hearing of the matter, there has been no abatement of these feelings and the parties have not been able to find a cooperative solution in respect of arrangements for the physical transfer of a number of items from the wife to the husband. Accordingly, it falls to this Court to make further orders in respect of the matter.
It is highly regrettable that circumstances between the parties are such that they are unable to reach rational decisions about matters that are comparatively trivial. It is also regrettable that what I hoped were clear orders that would finalise all areas of dispute between the parties, have not proved to be so.
Collection of items of property from the wife’s home
On the 3rd of October, 2002 I made the following order:
(3)That the wife transfer all her right, title and interest in the following items of personal property to the husband:
(i)2 x 54 bottle wine rack;
(ii)upright freezer;
(iii)3 piece fabric lounge suite;
(iv)6 seat dining suite, timber;
(v)wall unit;
(vi)68cm colour TV;
(vii)1 video recorder;
(viii)whipper snipper and tools;
(ix)work bench and cupboards (4);
(x)dinghy, outboard motor, trailer and boating accessories;
(xi)items of camping gear;
(xii)compact discs purchased by the husband;
(xiii)2 x bottles of Grange Hermitage wine
(xiv)and in the event she is able to locate them, the wedding ring, engagement ring and gold watch.
All of which items shall be collected from the wife and delivered to the husband at the husband’s sole expense.
This order came about as a result of the tender to me during the course of the hearing of a list of items that the husband indicated that he wished to retain. In her evidence, the wife indicated that she was agreeable to these items being transferred to the husband. I also made an order concerning two bottles of Penfolds 1986 Grange Hermitage wine that were of great sentimental value to the husband.
At the time of the tender of the list, there was no apparent argument between the parties as to what was comprised in the item entitled “Items of camping gear”. Since that time the husband has specified the items so described as including an eight person tent; a gazebo; two single air mattresses; two single sleeping bags; one portable fridge; two litre jerry cans; a solar shower; assorted tarpaulins and a gas cooker and bush barbecue.
It is the husband’s position that he wishes to attend at the wife’s home on a weekend with a friend to collect the property.
Initially, the wife indicated that she would leave the property in the carport of her home for the husband or his nominee to collect on a weekday. It was her position that she did not wish to come into personal contact with the husband when the property was to be collected. There are restraining orders operating between the parties which prevent them coming into direct contact with one another. However, she has since resiled from this position and it is now her position that the husband should arrange for the collection of the property by a carrier at his own expense.
The husband wishes to attend at the wife’s home in order to personally inspect each item of property and if it is in order, as far as he is concerned, have the wife sign a receipt for the items, which receipt he would co-sign. This would necessitate collection on a weekend, with the wife present.
In my view it is not reasonable for the husband to demand that the wife be present when he inspects these items of property. Clearly, it is his position that if the items do not pass his inspection that there will be further proceedings. That was not the intent of the orders that were made on the 2nd of October, 2002. There was no evidence lead before me as to the condition or otherwise of these items of property. I do not propose to conduct any further hearing in respect of the condition or otherwise of those items of property. There must be an end to the proceedings before the Court.
Given the obvious hostility of the parties for one another and the ongoing intractability of the dispute between them, which shows no signs of abatement, it is in my view reasonable that the husband arrange for the collection of the items of property that were ordered to be his property by means of a carrier to be paid for at his own expense. I do not propose to compel the wife to either allow the husband to come to her home or to be present during any inspection of the items of property as he currently seeks.
The additional items of property
The husband is still concerned about a number of other items of property. These items of property include the following: a wedding ring; engagement ring; gold watch; a wheelbarrow; a baby photograph of his mother; a glass serving platter “with strawberry embossing and apparently given as an engagement present to the parties by the husband’s mother”; and the parties’ CD collection that was amassed during their marriage.
The issue relating to the wedding ring, engagement ring and gold watch was canvassed in my reasons for judgment at paragraphs 73 and 74 and resulted in order number 3(xiv) of the orders of the 3rd of October 2002. Regrettably these items have apparently not been able to be located. In lieu thereof, the husband now seeks from the wife her engagement, wedding and eternity rings as compensation. I do not propose to make an order along these lines. I accept that the wedding ring, engagement ring and gold watch are lost. I hope that in future they may be found. I accept that the items hold deep personal significance for the husband. However, in the absence of knowing where the items are, I cannot make orders in respect of them. Nor is it appropriate at this juncture, after a final hearing has taken place, for me to make orders to compensate the husband for their loss.
In respect of the wheelbarrow and the baby photograph of the husband’s mother, as there was no evidence in respect of these items during the course of the hearing before me, I do not propose to make any orders in respect of these items.
Since the orders of the 3rd of October, 2002, the husband has indicated that he is entitled to additional CDs to those specified in the order. It is his position that he is entitled to an additional 15 to 20 CDs and in particular he seeks access to the CDs remaining in the possession of the wife so that he can inspect them.
The order that was made in respect of the CDs was as a result of the list of items that was tendered on behalf of the husband and which was subsequently put to the wife. During the course of the hearing before me, there was no evidence or argument regarding any difficulty in ascertaining those CDs that had been purchased by the husband. This is a difficulty that has only subsequently arisen. In essence, the husband seeks to check the collection to see if there are any outstanding CDs which he believes have been bought in the past by him. I do not propose making such an order. There is a limit to the extent of the intervention of Courts such as this one into the affairs of the parties that bring proceedings before it. In my view, it is not appropriate for the Court to minutely analysis the provenance of each CD in what was once a joint matrimonial collection. I accordingly decline to make any orders in respect of the CD collection further than those orders that have been already made.
There remains the question of the glass serving platter. On the 3rd of October, 2002 I made these comments in respect of this item:
“I do not propose to make orders in respect of the glass serving platter, the rope or the saws. These being items that the parties seem to have difficulty expressly identifying and that which in all likelihood could be resolved between them.”
In respect of these matters, it seems that I was naïvely optimistic. As I recall the evidence before me, there was some doubt as to the precise description of the glass serving platter now in dispute between the parties. As I recall, the wife indicated there were two such glass serving platters and she was content that the husband have one of them. The husband has now specifically sought to identify the one that he wishes to have as being “one with strawberry embossing and given as an engagement present by his mother”.
In her evidence before me on the 26th of March, 2002, the wife indicated that she was not sure whether or not she had one or other of the glass serving platters, but if she did she was prepared to return one of them to the husband. She also indicated that she had some difficulty in ascertaining precisely which glass platter the husband wanted and indicated that she would make some further inquiries in respect of it. As I understand her position presently, it is that the platter in question was a gift to her alone. In all the circumstances of the matter, given what has transpired to date, I do not propose to make any further specific order in respect of the particular glass platter. In my view the platter will be covered by order 5 (a) and ownership will vest in the party who has the current possession of it. In my view there is still some uncertainty about the particular item and I do not propose to make any orders on the basis of the evidence that has been put before me.
The husband has also raised concerns about the division of the photographs and videos that the parties took and acquired of themselves and the children during the course of their marriage. I can well understand the importance of these items to each of the parties concerned. The wife has indicated that she will divide these items herself. I accept that she will do this diligently and in a spirit of consideration for the feelings of the husband. In those circumstances I do not propose to make any particular and specific order in respect of the division of the photographs and videos.
Costs
The husband has sought an order for costs. This order is made on the basis that on the 17th of August, 2001 his solicitors conveyed an offer of settlement to the wife in the following terms:
1)That by way of settlement of property and in full and final settlement of any claim that either party may have against the other either now or in the future for spousal maintenance:
a)That the husband do transfer his interest in the former matrimonial home situated at 11 A Road, H V in the State of South Australia to the wife;
b)That the husband do retain those items set out in Schedule “A” to his application filed herein on the 31st day of May 2001 and 50% of the firewood;
c)That the wife to retain those items set out in Schedule “B” to the husband’s application filed herein on the 31st day of May 2001;
d)That the wife do pay to the husband the sum of $65,000 and do indemnify the husband and keep him indemnified in relation to any mortgage instalments or other outgoings relating to the said home; and
e)That each party do otherwise retain those items of realty and personalty currently in their respective possessions.
f)That each party retain those financial resources in the nature of superannuation policies in the respective names of each of them.
2)Such further or other orders in this Honourable Court deems just and expedient.
As matters transpired, it was ordered by the Court that the wife pay to the husband the sum of $65,102.31, this sum representing 40% of the net matrimonial property available for division between the parties. As has already been indicated, orders were made in respect of the transfer of a number of items to the husband and retention by him of items that were in his possession at the time of the hearing. The husband concedes that the majority of the hearing days before the Court were taken up with matters to do with the appropriate arrangements for his contact to the children. However, given the nature of the offer that was made, it is his position that the wife should pay his costs in respect of the final day of the hearing, which both parties agree was solely occupied with issues to do with property.
It is the wife’s position that although the final orders of the Court resulted in payment to the husband of a sum slightly greater than that which the husband indicated he was prepared to accept in full and final settlement, the reality of the situation is that there were very many other matters, some of a comparatively trivial nature that were still in dispute between the parties following the offer of settlement and as such, it cannot be said that the offer that was made would have necessarily finalised matters between the parties, if it had been accepted. In this regard, Mr McQuade, counsel for the wife points to the pedantic character of the husband and his insistence that a number of specific items of property be returned to him, as evidence that in all likelihood, there would have been a need for a hearing of issues between the parties on the 17th of September and accordingly, it is not appropriate for an order for costs to be made.
Accordingly, the questions that I have to resolve are first, whether any costs order should be made and, secondly, if the answer to the first question is yes, what form the costs order should take.
Section 117(1) of the Family Law Act provides that subject to subsection (2) and sections 117AA and 118, each party to proceedings under the Family Law Act shall bear his or her own costs. Section 117(2) provides that, if the Court is of the opinion that there are circumstances that justify the making of a costs order, such an order may be made subject to subsection (2A), as the Court considers just. Sections 117AA and 118 are not presently relevant.
Section 117(2A) sets out the matters that the Court is required to have regard to in determining whether it is appropriate to make a costs order. The Court is required to have regard to:
a)the financial circumstances of each of the parties to the proceedings;
b)whether any party to the proceedings is in receipt of assistance by way of legal aid, and if so, the terms of the grant of that assistance to that party;
c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of fact, production of documents and similar matter;
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;
such other matters as the court considers relevant.
As I understand matters, the husband’s offer of settlement was not formally filed pursuant to order 29 rule 1 of the Family Law Rules.
a)Financial circumstances of each of the parties
The financial circumstances of each of the parties is set out in the original reasons for judgment made on the 3rd of October, 2002. Neither of the parties is in a particularly strong financial position. They are both wage earners. As a result of the transfer to her of the former matrimonial home, I anticipate that the wife will have a considerable financial burden as a result of having to finance a mortgage on that property. The husband wishes to use his share of the matrimonial capital to purchase a home for himself in the near future.
I have no doubt that the cost of these proceedings has been a heavy burden for each of the parties.
In my view, neither party has a clear financial superiority over the other at the present time. In broad terms, their financial positions are roughly similar in the sense that neither of them has access to any unutilised store of cash.
b)Legal aid
Neither party was in receipt of legal aid for the hearing before me. They have each funded these proceedings from their own pockets or by borrowing sums of money from family and friends. As I have already indicated, I have no doubt that the conduct of these proceedings has been a considerable burden for each of them.
c)Conduct of the proceedings
In the reasons for judgment of the 3rd of October, 2002, I described the husband as “at times a pedantic and stubborn witness.” I have no reason to resile from that view following the events that have transpired since the judgment of the 3rd of October, 2002.
In my view, very many of the matters that were pursued by the husband on the 17th of September, 2002 were matters that although undoubtedly of great importance to him were not in the same scale of importance as the division between the parties of their equity in the former matrimonial home. Much time was taken up in respect of the issue of the parties wine collection: specifically 2 bottles of Grange Hermitage wine; and amongst specific chattels - a quantity of rope and items of gardening equipment amongst other things. The husband is of such a temperament that he demands exactitude in all manner of things. The wife is of a different temperament and is less exact. Accordingly, I believe there is much merit in the submission of counsel for the wife that, notwithstanding the offer of settlement there would have been very many issues between the parties regarding specific items of property which would not have been resolved by the offer of settlement. This state of affairs was borne out by much of the evidence that was lead on the 17th of September, 2002.
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders
This is not a relevant consideration in the present case.
e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings
Neither party was wholly unsuccessful in respect of the proceedings. As is obvious, there is a high level of acrimony between the parties and they have grave difficulties in communicating with one another. Accordingly, it was necessary for the Court to make orders dividing their matrimonial property between them. The parties, due to their different personalities and their different prospective as to what orders should be made, were greatly at odds with one another.
f)Any offer of settlement in writing
This is the central and most important aspect of this case. The husband argues that he was put to the expense of the final day’s hearing in this matter because of the wife’s refusal of his offer of settlement, which subsequently was revealed to be less than the amount awarded to him by the Court.
There can be no doubt that the offer that was made by the husband to the wife was very close, in dollar terms, to the orders that were subsequently made by the Court. However, I consider it likely that, notwithstanding this offer having been accepted by the wife, there would still have been issues between the parties regarding the division of the chattels of the marriage. However, the husband’s offer did deal with the vast majority of the issues in dispute between the parties. In those circumstances, it is my view that it is just that the wife pay a proportion of the husband’s costs in respect of the proceedings.
Clearly it is not appropriate that the wife make any contribution towards the husband’s costs incurred in respect of the children’s issues between the parties. In my view, it is appropriate that the wife pay a proportion of the husband’s costs incurred in respect of the last day of the hearing. Given that very much of this day was taken up with issues that were not dealt with specifically in the husband’s offer of settlement, it is my view that it is appropriate that the wife pay 75% of the husband’s costs of this last day’s hearing.
Pursuant to Part 21.10 of the Federal Magistrates Court Rules:
“Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceedings to which the Bankruptcy Act applies) is entitled to:
a) costs in accordance with Schedule 1; and
b) disbursements properly incurred.
The scale of costs set out in Schedule 1to the Federal Magistrates Court Rules is a fixed event based scale. In my view, this is the appropriate method by which the husband’s costs should be fixed.
Accordingly, I order that the wife pay 75% of the husband’s costs pursuant to Part 21.10 and Schedule 1 of the Federal Magistrates Court Rules in respect of the hearing before the court on the 17th of September 2002.
I certify that pursuant to Part 21.15 of the Rules that it was reasonable for the respondent to employ an advocate for the final hearing of the matter.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 24 December 2002
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