FABIANA & BECCA
[2019] FamCA 341
•18 April 2019
FAMILY COURT OF AUSTRALIA
| FABIANA & BECCA | [2019] FamCA 341 |
| FAMILY LAW – PROPERTY – Interim application – Where the Applicant asserts that the parties were in a de facto relationship – Where the Applicant seeks periodic and lump sum spousal maintenance – Where the Applicant seeks that the Respondent indemnify her against the parties’ joint and several debts – Where the Applicant seeks that a litigation funding order be made – Application dismissed. |
| Family Law Act 1975 (Cth) ss. 90SE(1), 90SF(1), 90SS(1), 114(2A)(c), 117 |
| Atkins & Hunt and Ors (2018) 57 Fam LR 128 Davidson & Davidson (No 2) (1994) FLC 92-469 Edgar & Strofield [2016] FamCAFC 93 Hall v Hall [2016] 257 CLR 490 Hogan & Hogan (1986) FLC 91-704 In the Marriage of Farr (1976) FLC 90-133 Iphostrou & Iphostrou and Ors [2011] FamCA 20 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 |
| APPLICANT: | Ms Fabiana |
| RESPONDENT: | Mr Becca |
| FILE NUMBER: | SYC | 212 | of | 2019 |
| DATE DELIVERED: | 18 April 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 11 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Searle & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney SC |
| SOLICITOR FOR THE RESPONDENT: | Karras Partners |
Orders
THE COURT ORDERS THAT:
By consent, within 14 days, the Applicant wife deliver up to the Respondent husband:
(a)The Vehicle 1 registered …; and
(b)All of the Respondent's personal items, including clothing, papers and memorabilia located at B Street, Suburb D.
The interim orders otherwise sought by the Applicant in her Initiating Application filed in these proceedings on 15 January 2019 be dismissed.
The interim orders otherwise sought by the Respondent in his Response filed in these proceedings on 11 February 2019 be dismissed.
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 Fabiana & Becca 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 SYDNEY |
FILE NUMBER: SYC 212 of 2019
| Ms Fabiana |
Applicant
And
| Mr Becca |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for interim property orders by Ms Fabiana (“the Applicant”), who contends that she was in a de facto relationship with Mr Becca (“the Respondent”) between 2007 and 2018.
In addition to a declaration regarding the nature of the parties’ relationship, the Applicant is seeking interim spousal maintenance in the sum of $15,000 per month, lump sum maintenance of $100,000, an order that the Respondent assume responsibility in respect the parties’ outstanding debts, the transfer of a Volvo motor vehicle into her name and an order requiring the Respondent to pay her legal costs. In that way, the Applicant asserts that she requires funds to meet her legal expenses in pursuing an application for final property orders, as well as to support herself, pending any final adjustment of the parties’ property.
The orders sought by the Applicant are opposed by the Respondent for reasons which include that the Applicant has failed to provide sufficient evidence to satisfy the Court that the orders should be made. While I have acknowledged that the proceedings have been brought on urgently, the Court must nonetheless be satisfied that the evidence justifies the exercise of its discretion, in accordance with the relevant legislative criteria, to make the orders sought by the Applicant.
For reasons which I set out below, other than in respect to retaining the use of a motor vehicle, the Applicant has been unsuccessful in her application.
Documentary evidence
At the hearing, the Applicant relied upon the following documents:
a)Her Affidavit filed on 15 January 2019;
b)Affidavit of Ms Deborah Searle filed on 15 January 2019; and
c)Financial Statement filed on 15 January 2019.
The Respondent relied upon the following documents:
a)His Affidavit filed on 11 February 2019; and
b)Financial Statement filed on 11 February 2019.
Factual contentions
The difficulties for the Court in making findings of fact in interim proceedings are well known. In that regard, in Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [44], Cronin J said:
In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction.
Nevertheless, to provide context for this decision, set out immediately below are the relevant facts and, where not agreed, the parties’ respective factual contentions, relevant to their applications.
The Applicant is 65 years of age, being born in 1953.
The Respondent is 90 years of age, being born in 1928.
In 2006, the Applicant sold a property in Suburb F, the net proceeds of which was $260,000. The Applicant contends that she utilised those funds to support herself while she was completing her doctorate, with a view to eventually obtaining employment at a university. It is acknowledged that the Applicant also obtained financial support from the Respondent for that purpose.
The parties met in November 2007, when they were living in different apartments in the same building. The Applicant rented her apartment, while the Respondent owned his apartment.
The Respondent contends that when he first met the Applicant, she had been awarded her Degree and subsequently “worked at the [J Organisation, Sydney] and was a contributor to academic journals”.
The Applicant asserts that the parties commenced a de facto relationship in 2007, albeit they continued to live in separate apartments in the same building. Comparatively, the Respondent asserts that the parties’ commenced their relationship in May 2011. In that regard, the Respondent acknowledges that the parties were “formerly in a domestic de facto relationship”.
In March 2008, the Applicant had a heart attack.
In mid-2008, the Applicant asserts that the proceeds from the sale of her Suburb F property “ran out” and that the Respondent promised to “fully support” her from then on. The Applicant claims that that promise was made in the context of her advising the Respondent that, if he was unable to support her, she “could not continue in the relationship and look after him”, but would have to get a full-time job. The Applicant states that she did not seek full-time employment as result of that assurance from the Respondent and has, therefore, been out of the workforce for more than 13 years. The Respondent denies making such “assurances” and asserts that the Applicant, herself, decided not to work.
Comparatively, the Respondent states that, while the parties were friends at that time, and he paid approximately $53,000 per annum during 2008 and 2009 to “sponsor [the Applicant] in her studies”, they maintained separate lives. The Respondent questions the Applicant’s assertions that she cared for him during that period, stating that for the two to three years after the parties met, she was “preoccupied in the care of her elderly mother who … she visited on a daily basis”.
The Applicant contends that, in addition to caring for the Respondent, she also cared for his only daughter, who was suffering from ill health. The Respondent denies that the Applicant cared for his daughter, apart from on four occasions, three of which involved driving her to a hospital.
From 2010 onwards, the Respondent met the parties’ rental expenses and would give the Applicant cheques for between $8,500 and $10,000 each month. The Applicant contends that she spent that money on housekeeping and living expenses for both herself and the Respondent.
In addition, the Respondent paid for the parties’ dogs to be boarded when they travelled, which, from mid-2016 onwards, cost between $2,000 and $3,000 per month. In addition, the Applicant contends that the Respondent would pay for the parties to attend restaurants, including for breakfast each morning. In that regard, the Applicant contends that, between 22 October 2018, when she had a hip operation, and separation in 2018, the parties ate every meal out and that the Respondent met that cost.
In May 2011, the Respondent asserts that the parties relocated to live at E Street, Town H, at which time their “relationship evolved from one of friendship to one of a committed cohabitation”.
On 23 November 2018, the Applicant asserts that the Respondent gave to her “the last cheque for $10,000”, of which she now has very little left.
On 24 November 2018, the parties separated.
In her Affidavit, the Applicant asserts that, since the parties’ separation, her income “has been $10 from share dividends”, and that the Respondent has declined her request for ongoing financial assistance. In her Financial Statement, the Applicant asserts that her total weekly income is $1, as derived from share dividends.
The Applicant continues to live at B Street, Suburb D, a rental property where the parties resided prior to their separation. The Respondent had met the rental payments for that property in advance, until 23 January 2019.
The Applicant contends that she is still recovering from her hip replacement surgery and that she has also sustained a shoulder injury, as a consequence of that surgery. In that regard, she asserts that she is “still on medication” and is “not able to get paid employment” until she fully recovers, which “will be about May this year”. In making that statement, the Applicant expressed some doubt as to whether she will be able to find employment at all. The Respondent challenges the Applicant’s assertions that she is unable to obtain employment and contends that she “is a senior academic, well-known within her industry”.
The Applicant states that her fixed and weekly expenses will be $3,359 per week from 23 January 2019, including rental expenses of $923 per week. In that way, she has a weekly shortfall of $3,358, which she says has met with the use of her credit card. The Applicant asserts that she has now exceeded the limit on her credit card. Part of that debt 1 included the cost of boarding the parties’ dogs between December 2018 and 3 January 2019, which was $4,500. The Applicant contends that she was unable to care for the dogs during that period, as she was recuperating from her hip operation.
In terms of her liabilities, the Applicant contends that her debt 1 is $3,733 and that she also has a debt 2 of $24,503, together with a debt 3 of $44,102. The Applicant acknowledges, however, that the debts relating to her studies are not immediately repayable.
The Applicant contends that her assets are shares valued at $1,266, funds in bank accounts of $2,189, household contents valued at $10,000 and assets valued at $2,000. In support of her claim, the Applicant has produced bank and credit card statements for the last 12 months, which are annexed to her Affidavit.
In respect to her legal fees, the Applicant states that she has signed a costs agreement with her current solicitors and that she has received a costs estimate for this interim application of $15,000 to $20,000, plus GST. The Affidavit of Ms Deborah Searle, the Applicant’s solicitor, filed in these proceedings refers to those costs incurred by the Applicant, together with her anticipated costs.
In her Affidavit, Ms Searle asserts that she has been instructed that:
a)The parties lived together for 11 years;
b)The Respondent made all of the financial contributions to the relationship, while the Applicant made all the non-financial contributions;
c)The Applicant has been out of the workforce for the whole of the parties’ relationship; and
d)The parties’ net asset pool is estimated at $22,000,000.
Ms Searle further attests that, based on her experience in family law litigation and her assessment of the authorities, “the Applicant can expect a property adjustment of at least 20 to 25% of the net asset pool and superannuation”. Ms Searle also states that she is not prepared to continue acting for the Applicant unless her tax invoices are paid promptly.
The Respondent states that throughout the parties’ relationship, he attended to his own laundry and dry cleaning needs. He acknowledges that, from time to time, the Applicant prepared meals for the parties, which they ate together and that she drove him to locations so that he could go shopping.
Relevantly, the Respondent acknowledges that he paid the Applicant’s living expenses and, additionally, “provided her with approximately $6,200 every month for spending at her discretion”. While he states that he has not had time to comprehensively review the total monies he has paid to or on behalf of the Applicant, the Respondent asserts that he met the following expenses from his capital:
Year
2016
2017
2018
TOTAL
Amount paid directly to the Applicant
$87,392
$82,471
$93,402
$263,265
Amount paid on behalf of the Applicant
$11,223
$14,362
$28,668
$54,253
Amount paid for the Applicant’s dogs
$11,966.20
$23,031.95
$25,933
$60,931.15
Amount paid in respect of rent
$39,889.32
$39,719.29
$43,192.23
$122,800.84
The Respondent states that he and the Applicant maintained separate bank accounts and that his financial arrangements did not involve the Applicant, other than by way of payments he made to her and on her behalf during their relationship. He states that they have never owned any real property together, do not have any joint credit card facilities, that she was never nominated as a beneficiary in his superannuation arrangements and that he has never granted her a Power of Attorney.
At paragraph 23 of his Affidavit, the Respondent sets out what he understands to have been his financial position at the time the parties commenced cohabitation.
The Respondent has returned to live at his property at C Street, Suburb G, where he was living when he met the Applicant. The Respondent has owned that property since 1989 and he asserts that it is valued at $2,700,000. The Respondent asserts that the Applicant never cleaned or cooked for him at that property, nor did she undertake any maintenance or repairs to it.
The Respondent also owns land in Victoria, the total value of which is $1,342,500. He values his remaining assets at $922,591.
The Respondent asserts, however, that his assets have significantly depleted since, he says, the parties commenced cohabitation in May 2011, including the expenditure of all of his superannuation.
The Respondent states that he has a weekly income of $60, derived from a term deposit, and that his expenses total $1,984.
The Respondent further states that he has sold shares valued at $84,453 and that he expects to receive a taxation assessment in respect to capital gains tax payable, in that regard.
The Respondent states that he has sought the return of personal belongings from the property at Suburb D by the Applicant, including “one of the motor vehicles [owned by him], as selected by [the Applicant]”, but that the Applicant has declined.
Applications
The Applicant seeks interim orders in accordance with her Initiating Application filed on 15 January 2019, as follows:
1. A declaration that a de-facto relationship existed between the Applicant and the Respondent.
2. That the Respondent pay to the Applicant the sum of $15,000.00 per month by way of interim periodic spouse maintenance pending further order.
3. That the first payment of periodic maintenance be made on or before 1 January 2019 and thereafter on the first day of each month.
4. That on or before 1 February 2019 the Respondent pay to the Applicant the sum of $100,000.00 being lump sum maintenance. That the spouse maintenance referred to in Orders 2 and 4 shall be paid into the Westpac account standing in the name of Ms Fabiana being account number …06 or as otherwise directed in writing by the Applicant.
5. That the Respondent shall pay any debts currently owed by the parties jointly and severally and shall indemnify and keep indemnified the Applicant in relation to any debts, either due or accruing.
6. That, within 7 days of the date of these Orders, the Respondent shall do all acts and things necessary to cause the Vehicle 2 registration number … to be transferred to the sole name of the Applicant at his expense.
7. That the Respondent pay the Applicant's solicitors' tax invoices in full within 30 days of his solicitors receiving them by email provided they have been approved by the Applicant such approval of each tax invoice being by email from her to the Respondent’s solicitors.
The Respondent seeks interim orders in accordance with his Response filed on 11 February 2019, as follows:
1. That within 14 days the applicant deliver up to the respondent:-
1.1. [Motor Vehicle 2] registered ….
1.2. [Motor Vehicle 1] registered ….
1.3. All of the respondent's personal items including clothing, papers and memorabilia located at [B Street Suburb D].
2. The applicant shall, within 14 days vacate the property known as [B Street Suburb D] leaving that property in a fit and proper state of repair pursuant to the terms of the lease between the owner of the property and the parties whereupon the applicant shall direct the owner to account to the respondent for the rental bond held in respect of the subject property.
3. That the interim Orders otherwise sought by the applicant in her Initiating Application filed in these proceedings on 15 January 2019 be dismissed.
Consideration
De facto declaration – the Applicant’s proposed order 1
In his Affidavit, the Respondent acknowledges that he “was formerly in a domestic de facto relationship with the Applicant”.
Nevertheless, I accept and respectfully agree with the submission of Senior Counsel for the Respondent that, in these interim proceedings, it is not appropriate to make a declaration in terms of that sought by the Applicant. That is because the proposed order is in the nature of a final order, rather than an interim order, pending further proceedings.
As such, I dismiss order 1 as sought by the Applicant.
Periodic maintenance – the Applicant’s proposed orders 2 and 3
In Hall v Hall [2016] 257 CLR 490 at 496, the High Court described the “gateway” requirement for the consideration of a spousal maintenance application, as follows:
… The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides that "[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)".
In this matter, the above extracted paragraph should be read by substituting the reference to s 72(1) of the Family Law Act 1975 (Cth) (“the Act”) for s 90SF(1) of the Act. Section 90SF(1) of the Act provides that:
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The difficulties associated with making findings of fact in interim proceedings have been acknowledged. As the Full Court said in Edgar & Strofield [2016] FamCAFC 93 at [15]:
…the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing...
Despite those limitations, in Hall v Hall (supra) at 497, the High Court confirmed that:
No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). [References omitted]. [Emphasis added].
As noted, in this matter, the Applicant’s evidence regarding her inability to financially support herself is set out at paragraph 13 of her Affidavit, as follows:
In March 2018 I had a heart attack. On 22 October 2018 I had a hip replacement from which I am still recovering which operation also caused a shoulder injury. I am still on medication and I am not able to get paid employment (if I can get any at all) until I fully recover which will be about May this year.
The difficulty for the Court is that the Applicant has not produced any evidence as to how those health events have impacted upon her ability “for appropriate gainful employment”. It would have been relatively easy for the Applicant to have presented evidence from her treating practitioners, in that regard.
It is to be noted that the Applicant’s factual assertions, in that respect, did not raise the issue of an inability to support herself as result of her age. Nonetheless, at the hearing, Counsel for the Applicant contended that his client’s age is a relevant factor that the Court should consider. I accept that s 90SF(1)(ii) of the Act states that among the matters that the Court is to consider in determining whether a party is unable to reasonably maintain themselves is the party’s “age or physical or mental incapacity for appropriate gainful employment”.
In respect to that contention, I respectfully agree with the contention of Senior Counsel for the Respondent that the Court is unable to infer, on the basis of the evidence, that the Applicant, at 65 years of age, is unable to obtain “appropriate gainful employment”. However, I nonetheless accept that the Applicant’s age is unquestionably relevant to the context in which the Court is required to consider her evidence regarding her asserted physical limitations. But there lies the problem for the Applicant – there is an absence of medical evidence to support her assertions.
It is also to be noted that s 90SF(1)(b)(iii) of the Act provides that, in considering whether a party is unable to reasonably maintain themselves, the Court can have regard to “any other adequate reason”. In that context, an “adequate reason” may potentially be the fact that the Applicant has been out of the workforce, she contends, “for more than 13 years”. The Respondent, however, asserts that at the time he met the Applicant in 2007, she “worked” at the J Organisation in Sydney. The Applicant has since obtained another Degree.
However, while the Applicant has speculated that she may not be able to find employment, she has not provided any evidence of attempts she has made to either assess the employment market or, more relevantly, apply for appropriate positions. Accordingly, the Court is in a position where it can only speculate as to whether the Applicant will or will not have difficulty in obtaining employment as a result of her asserted physical afflictions, her age and/or the amount of time that she has been out of the workforce.
As noted, even though these are interim proceedings, the High Court has confirmed that the applicant for an order in the nature of spousal maintenance must produce at least some evidence that satisfies the Court, on the balance of probabilities, that they are unable to “reasonably” support themselves for one of the reasons set out in the relevant section, in this case, s 90SF. In those circumstances, the Applicant has not satisfied the requirements of s 90SF, which, as the High Court also noted, is the gateway through which she must enter in order to obtain an order for maintenance.
As such, I dismiss orders 2 and 3 as sought by the Applicant.
Lump sum maintenance – the Applicant’s proposed order 4
Section 90SS(1)(a) of the Act provides that, in exercising its powers under Division 2 of Part VIIIAB of the Act, the Court may order the payment of a lump sum. That section is not itself a source of power. In Davidson & Davidson (No 2) (1994) FLC 92-469 at 80,874, the Full Court stated:
Section 80(1) is limited by its introductory words, namely that “The court, in exercising its powers under this Part, may do any or all of the following ...” That is, s. 80(1) is activated by the exercise by the court of some other of the powers in Part VIII.
In that regard, s 90SS(1) of the Act replicates s 80(1), that latter provision being applicable to married parties, as opposed to the circumstances in this case, where it is contended that the parties were in a de facto relationship.
The power that the Applicant pleads should be exercised in respect to such a lump sum is the maintenance power set out in s 90SE(1) of the Act. It is clear that the exercise of that power is constrained by the operation of s 90SF(1) of the Act, to which I have earlier referred.
In circumstances where the Applicant has failed to satisfy me that she is unable to support herself adequately by reason of one or more of the factors set out in that section, I have not exercised the Court’s power under s 90SE(1) of the Act and as such, I am without power to make a lump sum order for maintenance.
As such, I dismiss order 4 as sought by the Applicant.
Responsibility for the parties’ debts – the Applicant’s proposed order 5
The Applicant has sought an order that the Respondent “pay any debts currently owed by the parties jointly and severally and shall indemnify and keep indemnified the Applicant in relation to any debts, either due or accruing”.
While s 114(2A)(c) of the Act empowers the Court to make such an order, the precondition to that is that the Court considers that the order would be “proper with respect to the property of the parties to the de facto relationship or either of them”. The term “proper” has been found to mean “reasonable and just in [the] circumstances”: In the Marriage of Farr (1976) FLC 90-133 at 77,437.
It cannot, on any sensible view, be regarded as reasonable and just in the circumstances of this case to require the Respondent to meet “any debts” currently owed by the Applicant, including in circumstances where he may have no notice of the existence of such a debt or the circumstances in which it was incurred. Similarly it cannot be regarded as reasonable and just, in the circumstances of this case, to require the Respondent to meet “any” future debt that may be incurred by the Applicant, in circumstances where he has no say as to whether the debt should or should not be incurred. As drafted, the proposed order would, for instance, render him responsible for indemnifying the Applicant for any debt she may accrue, including by acquiring unnecessary items of property or engaging in unreasonable acts of self-indulgence.
As such, I dismiss order 5 as sought by the Applicant.
Transfer of motor vehicle – the Applicant’s proposed order 6
While not expressly stated, proposed order 6 is in the nature of an interim order for a partial property distribution pursuant to ss 90SM and 90SS of the Act.
In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,640, the Full Court held that there are two steps to considering an application for a partial property distribution, prior to final hearing. The first step is to resolve whether to exercise the Court’s power, in that regard, prior to final hearing. This is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) of the Act (or in this matter, s 90SS(1)(h)) to make an order for an interim property settlement. The second step involves the application of s 79 of the Act (or in this matter, s 90SM) and, in particular, a consideration of whether an order for the partial distribution of property is appropriate, just and equitable, at the point in time when the order is made: Sully & Sully (No 2) [2016] FamCA 706 at [33] – [36].
In this matter, I was not addressed on those two considerations. In any event, as noted by Thackray J in Strahan & Strahan (supra) at 85,656, the power to make an order for an interim adjustment of the parties property is discretionary:
…it is important to note that s 80(1) is couched in the permissive. Hence, although the Court must give consideration to the matters set out in s 79(4) when hearing an application for an interim payment, it has no obligation to make an interim order. The Court “may” do so if it considers that it should in the exercise of its discretion. [Emphasis added].
As the orders that I make will leave motor vehicle 2 in the possession of the Applicant, it is unnecessary, pending final hearing, to make an order transferring the title of that vehicle to her.
As such, I dismiss order 6 as sought by the Applicant.
Litigation funding – the Applicant’s proposed order 7
As set out above, the Applicant has sought an order that the Respondent pay her legal costs “within 30 days of his solicitors receiving them”. The proposed order makes that obligation on the Respondent conditional upon the Applicant approving each of the tax invoices sent by her solicitors to his solicitors. There is, however, no similar requirement for the Respondent to so approve of those invoices.
Counsel for the Applicant argued that the proposed litigation funding order could be made on one of two bases. The first basis was pursuant to the cost power set out in s 117 of the Act. The second, alternative basis, was pursuant to the injunctive power set out in s 114 of the Act.
The difficulty with the proposed order being made pursuant to s 117 is that it offends the principal adumbrated in Hogan & Hogan (1986) FLC 91-704, where the Full Court overturned the Trial Judge’s order that the husband pay “the solicitor and own client costs and outlays of the wife’s solicitors… (including counsel’s fees) rendered by such from time to time to the wife”.
In considering Hogan, in Atkins & Hunt and Ors (2018) 57 Fam LR 128 at [33] Watts J, with respect, correctly in my view, characterised the impugned order in Hogan as follows:
This was an order which gave the wife’s lawyers an open cheque book, over which the husband had no control. It was argued unsuccessfully on appeal by the wife that the court would still retain some control when dealing with any application to enforce that order. Understandably the Full Court did not consider that an appropriate answer to the challenge to the order.
In this matter, the Applicant’s proposed order 7 would have an effect similar to that disallowed by the Full Court in Hogan.
Relevantly, in Hogan at 75,096, the Full Court said:
Whilst recognising that the court has unlimited discretion in relation to costs, in our view, the whole tenor of the legislative provisions and the history of costs orders whether interim or final requires them to be either certain and/or ascertainable and any order must be just.
In applying that reasoning, I find that the order proposed by the Applicant, which would have the effect of requiring the Respondent to pay the Applicant’s legal costs, including in circumstance where they may be excessive or unreasonable, cannot be regarded as a proper exercise of the Court’s power pursuant to s 117 of the Act.
In terms of the second, alternative leg of the argument presented by Counsel for the Applicant, any exercise of the Court’s power pursuant to s 114(2A)(c) is predicated on the Court being satisfied that an order in the nature of a mandatory injunction would be “proper with respect to the property of the parties to the de facto relationship or either of them”.
An order which has the effect of requiring the Respondent to pay the legal costs, including in circumstance where they may be excessive or unreasonable, would not be “reasonable and just in [the] circumstances” of this matter. I therefore find that the making of such an order would not be an appropriate exercise of that power.
As such, I dismiss order 7 as sought by the Applicant.
Interim orders sought by the Respondent
The interim orders sought by the Respondent for the return of his property are in the nature of a mandatory injunction. I have earlier discussed the fact that such and order must be “proper”, meaning “reasonable and just in the circumstances”.
At the hearing, the Applicant consented to the making of orders 1.2 and 1.3 as sought by the Respondent and, accordingly, those orders will be made.
In terms of the Respondent’s proposed order 1.1, in circumstances where, at paragraph 33 of his Affidavit, the Respondent says that he was prepared to leave one of the Volvo motor vehicles in the possession of the Applicant, I am not satisfied that the making of order 1.1 is proper. This is because, in combination with proposed order 1.2, it would require the Applicant to return both motor vehicles and thus deprive her of the use of one of the motor vehicles. In that regard, at paragraph 33 of his Affidavit, the Respondent indicated he was prepared to leave one of the motor vehicles in the possession of the Applicant, pending further order.
Accordingly, I dismiss order 1.1 as sought by the Respondent.
In these interim proceedings, there was little attention given to order 2 as proposed by the Respondent. The premise of the Applicant’s application was to the effect that, if she were required to vacate the property at Suburb D, she would be required to leave the property in a fit and proper condition so as not to prejudice the refund of the bond paid in respect to that rental property. As a related issue, the Respondent seeks an order requiring the Applicant to “direct the owner [of the Suburb D property] to account to the respondent for the rental bond held in respect of [that] property”.
However, at the hearing, it was recognised that the Applicant may reach her own agreement with the landlord to continue to rent those premises. In those circumstances, the precondition for the repayment of the bond, which is the vacation of that property, may or may not occur.
Moreover no evidence was presented that there is a risk that the Applicant would leave the property in other than a fit and proper condition or that the landlord would fail to refund the bond to the party recorded as having paid it. The evidence in the proceedings was insufficient to determine who that party was.
In those circumstances I am not satisfied that there is a sound basis for making order 2, as sought by the Respondent.
Conclusion
On those bases, I make orders as set out at the commencement of these Reason for Judgment.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 18 April 2019.
Associate:
Date: 18 April 2019
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