Forest and Duane

[2016] FamCA 891

FAMILY COURT OF AUSTRALIA

FOREST & DUANE [2016] FamCA 891

FAMILY LAW – COSTS – Where the parties were in a de facto relationship– Where the applicant husband on two separate occasions instructs solicitors who subsequently cease to act – Where the husband is often not present at court on required dates – Where the husband does not participate in the final hearing – Where the husband’s actions caused unnecessary delay – Where the burden of finalising the matter is borne by the wife – Ordered husband to pay the wife’s costs

Family Law Act 1975 (Cth), s 117

APPLICANT DE FACTO HUSBAND: Mr Forest

RESPONDENT DE FACTO WIFE: Ms Duane

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Gosford

FILE NUMBER: PAC 3819 of 2014

DATE DELIVERED: 21 October 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 1 August 2016

REPRESENTATION

COUNSEL FOR THE  APPLICANT HUSBAND: Not Applicable

SOLICITOR FOR THE  APPLICANT HUSBAND: Not Applicable

COUNSEL FOR THE  RESPONDENT WIFE: Not Applicable

SOLICITOR FOR THE  RESPONDENT WIFE: Lambton Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Gosford

Orders

1. That each party pay to Legal Aid New South Wales the sum of $1,815.00 representing their respective share of the Independent Children’s Lawyer’s costs, within 8 weeks.

2. That the husband pay the costs of the wife fixed in the sum of $24,915.00 into the wife’s solicitor’s trust account within 42 days.

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 Forest & Duane 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 NEWCASTLE

FILE NUMBER: PAC 3819 of 2014

Mr Forest

Applicant de facto husband

And

Ms Duane

Respondent de facto wife

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. On 1 August 2016 these proceedings came before me for final hearing of outstanding parenting and property issues.

2. The applicant is the husband, Mr Forest. The applicant husband was not present at Court and was not represented. The respondent is the wife, Ms Duane. The respondent wife and the Independent Children’s Lawyer (“the ICL”) were the parties present for the hearing.

3. On that day, two sets of orders were made:

   a)Parenting orders in respect of the parties’ three children, boys now aged nine, eight and five. Those orders were subsequently amended (as to the children’s names and dates of birth) on 3 August 2016;

   b)Property orders were made, granting leave for the respondent wife to file and serve an Amended Minute of Order in relation to property orders. The applicant husband had 28 days to file and serve written submissions as to:

   i)Costs of the ICL; and

   ii)Costs of the respondent wife as reserved on 2 March 2016 and generally.

4. The applicant husband did not file written submissions in relation to costs.

5. On 30 August 2016 the respondent wife did file and serve an “Amended Amended Response” (the Amended Response) setting out in Annexure A the property orders sought.

6. On 2 September 2016 the solicitors for the respondent wife advised the Court that:

   a)The further Amended Response had been served on the applicant husband;

   b)The Trustee of a relevant superannuation fund had raised an issue in response to notice given of the proposed superannuation split, such issue requiring amendment to be made;[1] and

   c)The relevant orders in the further Amended Response had incorporated those amendments and had been served on the applicant husband.[2]

   [1] Exhibit 4

   [2] Exhibit 5

7. The applicant husband did not file any document in reply to the Amended Response or at all. Orders have been made in accordance with orders sought in the Amended Amended Response.

8. Property orders have been made  in accordance with Orders sought in the Amended  Response

Short History of De Facto Relationship

1. The parties began living together in 2006/2007 in Sydney. They had three children over the following four years.

2. In December 2013 the parties separated. The respondent wife and the three children moved to the Newcastle area.

3. In March 2014 the former family home was sold; the net proceeds of sale were held in trust; litigation ensued.

History of Events Relevant to Costs Application of Respondent Wife

1. On 14 August 2014 the applicant husband filed in Parramatta an Initiating Application seeking final orders (property) and a Financial Statement.

2. On 24 October 2014 the applicant husband filed a further Financial Statement.

3. On 24 October 2014 the respondent wife filed a Response, a Financial Statement and an Application for Fee Exemption.

4. On 28 October 2014 the parties attended a Case Assessment Conference with a Registrar in Parramatta; issues remained unresolved.

5. A mediation conference was appointed for January 2015.

6. On 23 December 2014 solicitors representing the applicant husband filed a Notice of Ceasing to Act.

7. On 12 January 2015 the respondent wife learned from her solicitors that the applicant husband had become unrepresented.

8. The solicitors for the respondent wife contacted the former solicitors for the applicant husband and thereafter, spoke to the applicant husband directly.

9. The solicitors for the respondent wife were advised that the husband had no legal representation but intended to retain legal representation in the future. It was on that basis the respondent wife says that she consented to an adjournment. The mediation conference was then administratively adjourned until 6 March 2015.

10. On 4 March 2015 the solicitors for the respondent wife informed her that they had spoken to the husband to inquire as to legal representation and his attendance on 6 March 2015. The applicant husband is reported to have said in relation to representation “not as yet” and when asked whether he would be there, he replied “probably not”.[3]

    [3] Mother’s Affidavit filed 22/06/2016, Annexure A, par 10

11. The respondent wife had her solicitors advise the Court of information received from the applicant husband and understands that attempts were made by a Registrar’s assistant to contact the husband, to no avail. The respondent wife was then granted leave to attend the mediation by telephone and on that day a Registrar adjourned the mediation conference, noted the wife’s application for a change of venue to Newcastle, stated that the matter might be listed as undefended if the applicant husband failed to appear on the next occasion, and directed the respondent wife to notify the applicant husband of such a consequence.

12. On 24 March 2015 the solicitors for the respondent wife telephoned the applicant husband and asked whether he was represented. He is reported to have replied, “No, not yet”. The solicitors then asked for a postal address and the applicant husband is reported to have said “I am having smoko, I will call you back on this number shortly”. No return call was made and a further message left was not responded to.

13. On 26 March 2015 the respondent wife filed an Application in a Case and Affidavit seeking transfer of the proceedings to the Newcastle Registry of this Court.

14. On 7 April 2015 the Registrar prepared to conduct the mediation conference transferred the proceedings to Newcastle. The record notes that there was no attendance by the applicant husband on that occasion.

15. On 13 April 2015 the matter came before a Registrar in the Newcastle Registry. Procedural directions were made which included the warning that the proceedings might be listed for an undefended hearing if a party failed to appear.

16. On 3 June 2015 a Registrar made procedural directions that the matter be listed on 3 August 2015 for undefended hearing; that the respondent wife file and serve any further affidavit material by 29 July 2015 and that the respondent wife’s solicitor notify the applicant husband at his last known address of the consequences of his failure to appear on the hearing date, “that is, the Court may make orders as sought by the  respondent  or such further or other orders as to costs of the  respondent …”.

17. On 29 July 2015 the respondent wife filed an Amended Response introducing parenting orders. On that day she also filed an Affidavit and a Notice of Abuse of the children by the husband and on one occasion assault of herself.

18. On 3 August 2015 the hearing was adjourned for a week due to illness of the presiding Judge.

19. On 10 August 2015 a solicitor for the applicant husband was present at Court and advised that the applicant husband wished to participate in the proceedings. Interim property orders were made, the effect of which was to release funds from trust in order to repay the debts of the parties. The orders were suspended for a period of 28 days. A direction was made that if the applicant husband was opposed to the orders, he had leave to file an Affidavit in opposition within 28 days. Costs of the respondent wife were reserved as from 13 April 2015.

20. On 27 August 2015 the respondent wife filed an Application in a Case and Affidavit in relation to a holiday, passports and a s 106A order.

21. On 1 September 2015 the applicant husband filed an Amended Initiating Application introducing the parenting orders he proposed. The Amended Application was supported by an Affidavit.

22. On 2 September 2015 the matter came before a Registrar. The husband was legally represented but not present himself. Certain orders in relation to parenting were made.

23. In respect to property, the Registrar noted that the Applicant husband had filed an Affidavit in opposition to orders previously made. The Registrar made procedural orders and appointed a Conciliation Conference for 19 October 2015. Other orders were made for provision of particulars of a Workers Compensation payout received by the Applicant husband, for valuations, and other matters.

24. On 19 October 2015 the Conciliation Conference took place. The Applicant husband participated by telephone. Further directions were made in respect of property proceedings. The Registrar noted that the financial matter was not resolved and:

    a)That neither party provided a current Balance Sheet or Financial Questionnaire;

    b)That the Applicant husband had filed an Affidavit opposing the distribution of funds to the parties’ creditors and that the interim matter remained listed for 13 November 2015;

    c)That the outstanding debts and liabilities of the business operated by the wife stood at $87,486.00;

    d)That neither party appeared to have lodged recent tax returns;

    e)That the wife was operating a business of her own, B Pty Ltd;

    f)That the net proceeds of sale of the former matrimonial home, $131,025.00, were being held in trust.

25. On 13 November 2015 the matter was referred back to the Registrar. The proceedings were listed for 12 January 2016. Procedural orders were made providing for the Applicant husband to comply with a previous order noting that it appeared to the Registrar at that time that the Applicant was failing to prosecute his application seeking an adjustment of property interests. The Registrar further noted the husband’s failure to file a Financial Questionnaire. The Applicant husband was directed to provide financial information to the ICL, the request made directly having not been responded to.

26. The notation to those orders on 12 January 2016 was that the solicitor appearing for the applicant husband informed the Court that his client had not responded to correspondence sent to him and that a Notice of Ceasing to Act may be filed.

27. On 28 January 2016 the solicitor for the applicant husband in fact filed a Notice of Ceasing to Act.

28. On 12 February 2016 the wife filed an Application in a Case and Affidavit. Once again seeking the interim property orders which had been made on 10 August 2015, suspended on account of the Applicant husband’s absence and subsequently opposed by him.

29. On 2 March 2016 the matter came before me. There was no appearance by the applicant husband. Interim orders for release of funds to named creditors and in respect of the respondent wife were made. Costs were reserved. Notation to those orders was that the applicant husband had not been present in Court, his solicitor had filed a Notice of Ceasing to Act, that the Registrar had noted in January that the husband had failed to comply with directions and was at risk of failing to prosecute his application “If the husband does not re-engage, this matter is likely to proceed undefended at which time his Initiating Application will be dismissed.”

30. On 30 March 2016 the wife filed an Affidavit by her solicitor regarding the non-compliance of the applicant husband with the orders made on 30 March 2016.

31. On 14 April 2016 the matter came before me, the applicant husband was not present. The respondent wife was directed to file an Affidavit updating events since her Affidavit sworn on 28 July 2015. The hearing was listed on an undefended basis on 1 August 2016.

32. On 22 June 2016 the respondent wife filed the updating Affidavit.

33. On 1 August 2016 as stated the matter proceeded undefended.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The husband [Applicant]

   (a)Financial Statement of husband filed 24 October 2014.

   The wife [Respondent]

   (b)Amended Amended Response filed 30 August 2016

   (c)Affidavit of wife filed 22 June 2016;

   (d)Affidavit of wife’s legal representative filed 30 march 2016

   (e)Affidavit of wife filed 29 July 2015; and

   (f)Affidavit of wife sworn 24 March 2015.

Relevant Consideration for Costs

Costs of the ICL

1. In respect of the costs of the ICL, the Court was assisted by the children being independently represented, especially in circumstances where the husband participated erratically at times, but not at all for final hearing.

2. Costs were presented on 1 August 2016[4] and it is appropriate that the parties make the contribution as sought. An order will be made for each party to pay the sum of $1,815.00.

   [4] Exhibit 3

Costs of the Wife

1. In respect of the wife’s costs, s 117 of the Family Law Act sets out the principle and considerations in respect of costs applications. The principle is that each party to proceedings shall bear his or her own costs. If the Court forms the opinion that there are circumstances that justified in doing so, the Court may make such order as to costs as the Court considers just. Section 117(2A) directs the Court to the following considerations:

   (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 facts, production of documents and similar matters;

   (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 made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

2. I conclude that there are circumstances which justify departure from the guiding principle, namely the failure of the applicant husband to prosecute his own application culminating in his failure to attend the final hearing.

3. Accordingly in exercising the discretion I consider the statutory matters.

The financial circumstances of each of the parties to proceedings

1. The current financial circumstances of the applicant husband are not known to the Court. His address for service is in C Island, off Tasmania. His Financial Statement filed 28 October 2014 disclosed a total average weekly income of “nil”. His occupation was disclosed as “tradesman”. Even if it were the case that the husband was without income, which is not established, that fact is not sufficient to dissuade the Court from making a costs order where it is appropriate.

2. The financial circumstance of the respondent wife is that she will receive a small contingency fund as a result of property orders made. She has the whole of the financial cost of raising the three children one of whom has recently undergone heart surgery.  The wife will receive superannuation funds at an unknown future date.

3. The wife was not in receipt of Legal Aid.

Conduct of the parties

1. The husband’s conduct as set out in the history of litigation caused unnecessary delay in the finalising of the proceedings. He twice instructed solicitors who subsequently ceased to act. He opposed a set of interim orders which would have seen the parties’ debts repaid. Those orders were ultimately made. On most occasions the husband was not present and on more than one occasion failed to give sufficient notice of his intention not to be present. The applicant husband chose not to participate in the final hearing.

2. The burden of finalising the business which had been run by the parties and meeting the outstanding debts of creditors has fallen on the respondent wife.

3. No offers to settle have been brought to the attention of the Court

4. The wife has asked for her costs to be paid in the sum of $24,915.00.

5. In the circumstances of how this litigation has been conducted by the applicant husband since he initiated proceedings in August 2014, an order for costs as sought is entirely appropriate.

6. An Order is made accordingly other than the period of time to pay which is extended to 42 days.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 21 October 2016.

Associate: 

Date:  20 October 2016