Fielder & Kirby

[2021] FCCA 2151

FEDERAL CIRCUIT COURT OF AUSTRALIA

Fielder & Kirby [2021] FCCA 2151

File number(s):	LEC 343 of 2019
Judgment of:	JUDGE L. TURNER
Date of judgment:	27 July 2021
Catchwords:	FAMILY LAW – Costs – held order made for $50,000 for costs thrown away as a result of wife’s actions resulting in final hearing not proceeding
Number of paragraphs:	35
Date of last submission/s:	27 July 2021
Date of hearing:	27 July 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Priestley
Solicitor for the Applicant:	Parker & Kissane
Solicitor for the Respondent:	The Respondent appeared in person

ORDERS

LEC 343 of 2019

BETWEEN:

MS FIELDER

Applicant

AND:

MR KIRBY

Respondent

ORDER MADE BY:	JUDGE L. TURNER
DATE OF ORDER:	27 JULY 2021

THE COURT ORDERS THAT:

1.That ninety (90) days from today’s date, the wife pay the husband the sum of FIFTY THOUSAND DOLLARS ($50,000.00) as directed by the husband due to costs thrown away due to the preparation and attendance at the final hearing commencing 26 July 2021.

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 persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE L. TURNER:

1. For the sake of convenience and for the purposes of this judgment the applicant is hereinafter referred to as the wife and the respondent is hereinafter referred to as the husband.

2. The parties are involved in a de facto property dispute after a 6 to 7 year relationship which ended in late 2018.

3. Proceedings were commenced by the wife in July 2019 where orders were sought for a de facto property division whereby the parties retain whatever property is in their possession.

4. In August 2019 the husband filed his response seeking a 35% division of the de facto property pool in his favour.

5. In August 2019 interim consent orders were entered into for disclosure and valuations.

6. In July 2020 the matter was placed in the trial pool awaiting a hearing date for two to three days.

7. In early June 2021 the matter was set down for a three day hearing commencing on 26 July 2021 with trial directions made for the filing of affidavits of evidence in chief by 12 July 2021.

8. Both parties were late in the filing of their trial material.

9. Most documents were filed on 16 July 2021 with a series of late affidavits filed by the wife on 19 and 20 July 2021.

10. The matter is complex with the complexity of the matter demonstrated by:

    (a)The nature and extent of the de facto property pool and how and when the pool was acquired.

    (b)The wife’s affidavit containing 530 pages of annexures.

    (c)Seven additional witnesses for the wife including that of her daughter with her affidavit containing 215 pages of annexures.

    (d)The husband’s affidavit containing 214 pages of annexures. 

    (e)Five additional witnesses for the husband.

    (f)Five subpoenas.

    (g)A tender bundle by the wife containing 178 pages.

11. The hearing commenced on 26 July 2021.

12. At the commencement of the hearing the wife’s primary position was for the husband’s response to be dismissed and the husband pay the wife’s costs.

13. The wife raised six issues with one issue having twelve sub issues.

14. In addition to disputing the length of the relationship and the extent of the property pool the wife raised a new issue as to whether it was just and equitable for a de facto property division to occur (the Stanford argument).

15. The wife did not provide an alternate position should the Stanford argument be unsuccessful.

16. During the course of the morning the court was advised that the wife’s alternate position was the same; namely that the parties keep what they have in their possession.

17. The result of both of the wife’s proposals is that the wife receive over $2.7 million and the husband receive less than $300,000 from the de facto property pool where both parties brought assets into the relationship, albeit that the wife’s contribution was higher than that of the husband.

18. The husband in his proposed order sought the payment of the sum of $718,888 by the wife by way of property settlement, representing a 35% division to the husband of the property pool.

19. On the first day of hearing (26 July 2021):

    (a)There was a discussion as to the witnesses required and how the witnesses would give their evidence.

    (b)The bundles of annexure documents were provided by the parties to the court.

    (c)Leave was given for the inspection of two subpoenas which had only just been returnable.

    (d)Objections to affidavits were dealt with and certain parts of the wife’s affidavit were struck out including documents being relied upon by the wife.

    (e)The balance sheet (which the husband thought had been agreed upon the day before) was submitted, whereby certain items are disputed by the wife.

    (f)It emerged that the wife had recently acquired through her practice a motor vehicle of significant value (over $170,000) that had not been disclosed to the husband and documents were called for and subsequently produced by the wife as to the transaction.

    (g)The wife had not disclosed fully her recent tax returns.

    (h)The tender bundle by the wife was submitted which contained 100 pages of documents that the husband had not sighted previously.

    (i)Objections were heard as to the wife’s tender bundle and certain documents were struck out.

20. After the hearing of all the preliminary issues the final hearing formally commenced at 2.11pm when the wife was called for cross-examination.

21. During the cross-examination the following emerged:

    (a)Dates in one of the wife’s witness’s affidavit were incorrect.

    (b)Information provided by the wife as to the husband being charged over a car accident in 2013 was incorrect.

    (c)The wife did not see it as important or relevant to include in her affidavit or disclose information as to the newly acquired motor vehicle.

    (d)The wife said that she had disclosed the information to her solicitor and proof of that disclosure was called for but was unable to be answered as the solicitor had no recollection of such a conversation taking place.

    (e)The wife said that the table set out in her affidavit as to her taxable income was not “set out” by the wife and that it was her solicitor that extracted the information from the wife’s financials; not the wife.

    (f)The wife said that she had reviewed the affidavit but that she “just signed what was put in front of” her.

    (g)The wife admitted to not checking the figures to see if they were correct.

    (h)The wife was vague in response to several questions asked as to her finances, especially the discrepancies as to what the wife said she had received by income and her ability to acquire the property acquired during that time.

    (i)At one point the witness was asked to wait outside whilst clarification was sought from the bench as to the calculation of some figures and the questions being asked of the witness as to those figures.

    (j)After further cross-examination the witness was again asked to take a seat outside as the questions asked as to financials were not being properly addressed by the wife.

    (k)In the absence of the wife a conversation from the bench occurred as to:

    (i)The wife appearing not to understand what is in her affidavit.

    (ii)Whether the wife’s affidavit reflected her evidence.

    (iii)The information as to the wife’s income being vague.

    (iv)No evidence being available as to the tax assessed on the wife’s income.

    (v)A gaping hole in the evidence as to what the wife says her financial position was and how the wife financed the assets.

    (vi)There was at least five discrepancies in the evidence the wife had given in cross-examination.

    (vii)Some of the discrepancies were due to the wife not adopting the affidavit as her own.

    (viii)An observation that on two occasions the wife had blamed her solicitor for the misinformation or lack of information.

    (l)Counsel for the husband indicated that if the matter did not proceed there would be an application for $50,000 or $60,000 in costs thrown away.

    (m)The wife was released from cross-examination to enable the wife and her legal representatives to discuss the issues of concern with the wife.

    (n)Prior to standing down, the following comment was made from the bench “there needs to be a reality check for your client because I can indicate from what has occurred that I am having some serious doubts (referring to the position the wife has taken). Having said that though that isn’t my fixed position because I have concerns about her understanding of her affidavit. But I also have concerns with the fact that she (the wife) thinks it’s quite acceptable to throw it back onto the solicitor when I know Ms B is a senior solicitor with very good reputation and Mr C, I know you are of like ilk”.

    (o)A further comment was made that the wife is a university educated health care professional and not an unsophisticated witness which the bench commented “makes it even more troubling”.

    (p)At 3.12pm the matter was stood down until the following day.

22. At 10.31am on 27 July 2021 the wife’s legal representatives withdrew due to conflicts with the wife.

23. With the wife now self-represented, the husband’s counsel raised again the issue of costs thrown away and the enormous amount of work undertaken to prepare for the final hearing where the wife’s material was filed late, there was non-disclosure and at the bar table the husband was given the tender bundle, much of which had not previously been provided for by the wife.

24. The husband sought legal costs of $50,000 for costs thrown away and where given the uneven holding of assets (the wife had $2.7 million and the husband had less than $300,000) this would enable the husband to fund a continuation of the hearing which would take another three to four days.

25. Discussion then took place between the bench and the wife as to attempting to settle the matter.

26. The following statement was made from the bench “we’re (referring to both parties) currently $250,000 apart (referring to proposed offers of settlement).  You have already spoken about spending $88,000 preparing for the trial… so you are aware that that is going to end up costing you a similar amount, if not more, because on the volume of material, a new solicitor, a new counsel are going to have to cut across it all, which is going to be costly. So, you’re already going to be, say, $100,000 out of pocket for having to reengage lawyers.  There is a possibility that I’m going to make the order for $50,000 for the costs and at this means you’re $150,000 out, and at this moment your $250,000 apart… did you want me to stand down so you can have a discussion about those figures or for you to have a think about that before I make any rulings” to which the wife replied “yes”.

27. The wife was then informed by the bench that there was a possibility of further costs orders being made in the event that the matter proceeded to a final hearing and the wife was unsuccessful in the orders that she is seeking.

28. The matter was stood down for discussion.

29. In less than an hour the matter was back with the court being informed that the parties had failed to reach an agreement.

30. Counsel for the husband re-enlivened the application for the payment of costs.

31. The wife was asked whether there was anything further she wish to add but the wife responded “no”.

32. Orders were then made wife to pay to the husband at the expiration of 90 days the sum of $50,000 in respect to costs thrown away by the husband as to the preparation of the final hearing.

33. I find that the basis for making the costs order is as follows:

    (a)The wife’s failure to disclose the acquisition of the new motor vehicle prior to the final hearing.

    (b)The wife providing after the commencement of the hearing a large number of documents that had not been formerly disclosed to the husband.

    (c)The wife failing to provide sufficient information as to her tax returns.

    (d)The wife failing to read, understand and take responsibility for the content and quality of the affidavit material filed by the wife.

    (e)The wife being vague in her responses in court respect to her financial position.

34. Overall it is the wife’s conduct that resulted in the final hearing not being able to proceed resulting in costs incurred by the husband being thrown away.

35. I find given the complexity of the matter that $50,000 was a fair figure especially given the wife’s costs in preparing for trial exceeded $80,000.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge L. Turner.

Dated:       15 September 2021