Forster and Forster (No 2)

[2012] FamCA 1028

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 2) [2012] FamCA 1028

FAMILY LAW - ENFORCEMENT – application by the wife for directions in relation to the sale of the former matrimonial home – where the property is vacant and the parties are paying insurance and other costs to maintain the property – where the orders for the sale of the property are now the subject of an application to file an appeal out of time – where the matter has a long and very complex history – just and equitable – orders that the property be sold and the proceeds be held in an interest bearing account pending further order of the Court.

FAMILY LAW - STAY – oral application by the husband seeking a stay of the orders just made – where the husband intends to lodge an appeal against them – where the husband has not established any reasonable likelihood of success or that it is appropriate in all the circumstances – application refused.

FAMILY LAW - COSTS – application by the wife seeking the costs of her application – consideration of the factors set out in s 117(2A) – where the Court took into account the conduct of the husband during the proceedings – where the husband was wholly unsuccessful in the proceedings – where the circumstances justify the making of a costs order – where the Court reduced the sum sought by the wife to account for a delay in service on the husband – orders that the husband pay the wife’s costs of and incidental fixed in the sum of $4,000 – where the Court refused the husband’s oral application to stay the costs order.

Family Law Act 1975 (Cth) ss 117 & 117(2A)

APPLICANT: Ms Forster

RESPONDENT: Mr Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 30 November 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs West

SOLICITOR FOR THE APPLICANT: Catherine Hicks & Co

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. The property known as P Street, Adelaide Suburb N in the State of South Australia (Certificate of Title …) be sold for such price and upon such conditions and by such mode of sale whether private treaty, auction or otherwise as the wife shall determine in consultation with Mr B of C Real Estate Agents PROVIDED THAT the wife be restrained from entering into any contract to sell the property for a sale price less than FOUR HUNDRED THOUSAND DOLLARS [$400,000.00] unless and until she has given the husband seven [7] days written notice of her intention so to do and provided to the husband at the time of such notice full particulars of the sale price and terms and conditions of sale.

1. The husband have liberty to apply in respect of any orders relating to the sale of the property upon such notice referred to in the preceding paragraph being given by the wife.

1. The net proceeds of sale of the said property shall be held in an interest bearing deposit account in the wife’s name pending further determination by this Honourable Court.

1. The wife is restrained and an injunction is granted restraining the wife from dealing with the net proceeds of sale without an order of this Honourable Court.

1. A Registrar of this Court is authorised to execute on behalf of the husband any document necessary to effect the sale of the property pursuant to these orders.

1. If the husband proposes to file any proceedings to set aside or discharge the Orders of the Court by way of property settlement (being the Orders of 23 April 2010 varied by the Orders of 1 October 2010) he do so by filing and serving the same before 28 February 2013.

1. Within twenty-eight [28] days from today the husband pay the wife’s costs of and incidental to the divorce proceedings fixed in the sum of FOUR THOUSAND DOLLARS [$4,000.00]

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No 2) 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 ADELAIDE

FILE NUMBER: ADC 3359 of 2007

Ms Forster

Applicant

And

Mr Forster

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is the Application in a Case brought by the wife, filed on 9 November 2012, when the matter was before me in relation to the divorce, which was heard on 14 November 2012.  I made orders listing the matter before me this morning, making an order that the husband was to file and serve any answering documents by 4.00 pm on 26 November 2012.  The orders relate to the application by the wife for directions in relation to the sale of the former matrimonial home at P Street, Suburb N, and the proceeds of sale.

2. The matter has a very complicated history.  The proceedings were before the Federal Magistrates Court in relation to both children’s and financial issues.  Orders were made by the Federal Magistrate, by way of final orders.  Those orders were made when the husband was the subject of orders which provided for a case guardian for him. 

3. The final orders made by the Federal Magistrate in relation to property settlement have not been the subject of an appeal, but I understand are the subject, now, of an application by the husband for leave to file an appeal from those orders out of time.

4. The Court has now before it the decision of the Full Court of the Family Court of Australia delivered on 23 March 2012, in which the Full Court upheld the appeal of the husband against the orders made by Lindsay FM, so far as they related to the appointment for the case guardian of the husband.  The end of the judgment itself, paragraphs 151 onwards, are conclusions.  They say in paragraph 151 to 153:

   151. There was no dispute that, in accordance with the Federal Magistrate’s orders, a litigation guardian was appointed for the father.  A solicitor appeared in the father’s stead and consented to orders resolving both the children’s and property matters between the parties.  The appointment was discharged on 16 December 2011 with effect from 6 January 2012.  We were informed that the former litigation guardian was aware of the appeal and the issues raised, but there was no appearance on the litigation guardian’s behalf in the appeal.

   152. No leave was sought to bring this appeal and no point raised in that regard by the respondent mother.  Given the nature and effect of the order from which the appeal is brought, we would be of the view that, if leave is required to appeal from such an order, it would be granted. 

   153. The father sought a number of others, should this appeal succeed, including that we set aside consent orders entered into on his behalf by the appointed litigation guardian.  We indicated to the father that this is not an order which could be made by us.

5. They then continued to propose that the orders of 8 October 2008, 19 December 2008 and 16 March 2009 (which appointed the Public Trustee as the litigation guardian for the husband) be set aside.  They then made reference to costs.  It is significant that the Full Court stated as recently as 23 March 2012, that an order setting aside the consent order was “not an order which could be made by us”.

6. Since then, the wife has been continuing to attempt to enforce the orders of the Federal Magistrate by way of property settlement.  The husband has sought leave to appeal out of time the final orders made by the Federal Magistrate.  Justice Strickland has that matter before him and is yet to deliver his judgment, having, however, indicated to the parties that the husband was not likely to be successful.

7. The husband has also, from time to time, been told in open Court, by way of submissions from counsel for the wife, that the husband’s next step, if he disagrees with the orders by way of final orders for a property settlement and does not wish them to be enforced, should make an application either under section 79A, to vary or discharge the orders, or to bring an application in this Court to have the orders made by the Federal Magistrate (by way of final orders for a property settlement) declared void.  Apparently, Justice Strickland has advised the husband, that the orders that have been made are not void, but he would need to consider whether they are voidable, in view of the decision of the Full Court, which has set aside the orders appointing the case guardian.

8. The material filed by the wife, in support of the application for the sale of the former matrimonial home, sets out allegations which have not been the subject of dispute by way of the husband filing any affidavit in response.  It suggests that the property has been vacant, is deteriorating, and would be costly to maintain by way of insurance and otherwise maintain the property.  The orders that are being sought are not for orders that the wife keep the proceeds, but that the property be sold and the net proceeds invested pending any final determination the Court might make, in relation to any other orders that the husband seeks.

9. Based on the lack of information filed by the husband and the lack of convincing argument put by the husband in these proceedings, I am satisfied that the order which the wife is seeking by enforcement of the orders which continue to exist is appropriate. That is so even in these unusual circumstances, where there is a possible risk of the orders being set aside. The orders are both practical and take into account the principles of what is just and equitable in all the circumstances. The orders also take into account the enforcement provisions of the Act.

10. The other order that is being sought by the wife is that the husband be given a time limit as to any application he wishes to bring to set aside the final orders of the Federal Magistrate, made in relation to the property settlement orders.  As I have indicated, the Full Court of the Family Court already indicated to the husband, in its judgment of 23 March 2012, that the husband needed to take further steps if he was seeking to set aside the final property settlement orders of the Federal Magistrate.  I therefore consider it is appropriate for a time limit to be placed upon the husband, so that for all persons’ benefits the matters can be clarified.  I do that in accordance with the Rules of the Court, which encourage the Court to make orders which would bring an end to ongoing litigation.

11. The orders I propose to make in relation to that application will take into account the approaching Christmas/January leave often taken by various solicitors and barristers.  I therefore make orders in terms of the minutes proposed orders signed by me together with an order that if the husband proposes to file any proceedings to set aside or discharge the orders of the Court by way of property settlement (being the orders of 23 April 2010 as varied by the orders of 1 October 2010) he do so by filing and serving the same before 28 February 2013.

12. In relation to the applications before me, the husband has also sought a stay of the proceedings being the stay of the orders that I have made.  The basis upon which he seeks to stay that order is that he opposed them and he proposes to appeal them.  The basis upon which he seeks a stay, being an oral application, and the reasons that he gives do not establish that he has any prospect of success nor does he establish that the stay would be appropriate in all of the circumstances.

13. The history of the matter weighs heavily in favour of a refusal of the stay taking into account all of the circumstances.

14. In relation to the question of costs that is before me, the costs of the divorce are set out in the Bill of Costs filed on 23 November 2012 which sets out, in detail, the history of and the basis upon which the costs are sought.  The total costs of the divorce sought (including disbursements and GST) is $5404.75.  There is a dispute about the time of service and the admission by the husband in a document that is annexed to his own affidavit wherein he says he was served on a particular date.  He says that was a mistake by him and he was served at a later date.  The costs before me indicate that the wife is seeking costs on the scale for the work actually undertaken rather than the standard application for divorce which would be expected to be an undefended divorce.

15. This is an unusual case in which the matter has been before a Registrar on numerous occasions wherein the amount claimed was $264 for each mention and thereafter before the Federal Magistrate in relation to various applications in the case and then the matter was transferred to this Court.  There are also involved in the costs application the costs of the hearing before me in which the divorce was made final.

16. Taking into account the dispute in relation to the service of the proceedings, that would reduce the costs sought if the husband were successful in his allegation in relation to the time of service by either $264 or by $528, if two attendances before Registrar Schulz were taken into account.

17. The divorce was heard by me, the decision made and reasons have been published for the same.  The husband says that he is going to appeal that decision.  I have indicated I am not now dealing with any appeal from my own decision.

18. The provisions of the Family Law Act1975 (Cth) (‘the Act’), section 117, make it clear that subject to the provisions of various subsections which are not relevant in this matter, the parties should bear their own costs, subject to subsection (2) of section 117. Where the Court is of the opinion that circumstances justify it in doing so the Court may make an order for costs as it considers just. There are considerations set out in section 117(2A).

19. The significant factors in section 117(2A), the conduct of the parties to the proceedings, including the conduct in relation to pleadings, particulars, discovery, inspections, directions, answers, admission of fact, production of documents and similar matters and whether any party to the proceedings has been wholly unsuccessful in the proceedings. Such other matters as the Court considers just and the financial circumstances of each of the parties are also relevant.

20. In relation to this matter, I consider that the most significant factors are the conduct of the proceedings in relation to the divorce and that the husband was wholly unsuccessful in the proceedings. 

21. Taking into account the considerations in relation to the issue about the service of the application upon the husband in the first instance, I consider it would be appropriate to reduce the costs now sought by the wife to take into account the issues in relation to the timing of the service.  To avoid the extra costs for the parties in having the costs taxed, I consider that the authorities allow me to allocate a specific figure to the fees to be recovered.

22. Taking into account those factors and the particular factors of section 117, I order that the husband pay the wife’s costs of and incidental to the divorce proceedings fixed in the sum of $4000, such sum to be paid within 28 days from today.

23. The husband is now asking by oral application, to stay the costs.  In the context of these proceedings and the history of the matter I do not consider that there is any reasonable basis to allow the oral application for such a stay and I refuse same.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 November 2012.

Associate: 

Date:  10 December 2012