Forster and Forster (No. 7)

[2013] FamCA 522

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER (NO. 7) [2013] FamCA 522

FAMILY LAW – PROPERTY – Protracted and many hearings where parties had limited resources.

Family Law Act 1975 (Cth)
Superannuation Industry (Supervision) Act 1993 (Cth)

Chang & Su [2002] FamCA 156
Crapp & Crapp (1979) FLC 90-615
K & K [2002] FamCA 1150
Re F: Litigants in Person Guidelines (2001) FamCA 348
Stanford v Stanford [2012] HCA 52
Weir & Weir (1993) FLC 92-338

APPLICANT: Ms Forster

RESPONDENT: Mr Forster

FILE NUMBER: ADC 3359 of 2007

DATE DELIVERED: 2 July 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 2 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms West

SOLICITOR FOR THE APPLICANT: Catherine Hicks & Co

THE RESPONDENT: In Person

Orders

1. That the wife have the proceeds held in trust in her name.

2. That the wife retain and the husband have no further interest in the motor vehicle in the wife’s name.

3. That the husband indemnify the wife in relation to all outstanding litigation in the United States of America.

4. That the husband pay the wife’s costs fixed in the sum of $48,050 of which $42,200 is satisfied by paragraph 1 of these orders.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That all outstanding proceedings are dismissed.

3. That the oral injunctions otherwise made this day are discharged.

4. That the costs orders of 1 November 2010, 30 November 2012, 15 January 2013, 25 January 2013 and 22 February 2013 are all satisfied by paragraph 1 of these orders.

5. That the wife’s costs schedule is marked as Exhibit W1 and shall remain on the court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster (No. 7) 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

REASONS FOR JUDGMENT

1. This modest property dispute has an extraordinary history for reasons which will be obvious from the many court events. In simple terms, the Federal Magistrates Court proceeded to hear and determine the property dispute at a time when the husband’s interests were represented by a case guardian. Much later, and after a significant expenditure of the parties’ money and, in particular the wife’s money, was spent on costs, the Full Court set aside the case guardian order. A little later again, Strickland J discharged the orders that were made under s 79 of the Family Law Act 1975 (Cth) (“the Act”). A variety of appeals, “stay” applications and other interlocutory hearings occurred both before and after the orders of Strickland J. Indeed the husband made an application for special leave to the High Court of Australia. About a week ago Hayne and Crennan JJ refused the husband’s special leave application.

2. In March 2013, I listed the unresolved property dispute for final hearing.  I made directions for filing of trial material.  There was even an interlocutory hearing after that where the husband sought a stay of my directions pending an appeal.  As I have previously observed, the husband and his approach has been his own pursuit of justice mostly about the return to him of a house that has now been sold. 

3. Yesterday, counsel appeared for the first time for the husband with a specific remit.  That was to seek an adjournment to enable lawyers to get on top of the material.  The husband had instructed them only days ago.  For reasons elsewhere given, the adjournment application was refused and counsel withdrew.  The husband then applied for an adjournment again.  This time, his application was based on the fact that he could not conduct a trial without legal representation.  For reasons also given at the time, that application was also refused.  Suffice to say, a litigant who has conducted hearings both here and it would appear overseas, prepared documents including a special leave application and appeared before the Full Court would normally be expected to conduct a modest property dispute hearing.  An argument that he needed representation to conduct a trial has little substance or merit.

4. One of the issues raised by the husband was that he would not get a fair trial.  I advised him that I would ensure otherwise and pointed out my obligation as described by the Full Court in Re F: Litigants in Person Guidelines (2001) FamCA 348.

5. Having refused the husband’s applications, he said he would not participate in the trial notwithstanding he had filed a response seeking orders and an affidavit.  He left the bar table but it was noticeable that he did not leave the court room entirely.  I dismissed his response and gave the wife leave to proceed on an undefended basis.  At no time did the husband seek to again involve himself. 

6. Thus, I turn to these proceedings.  The husband is 61 years of age and retired from a United States government agency position.  He apparently lives on a pension from the government of the United States of America.

7. The wife is 45 years of age and works as a healthcare worker on a very modest income. 

8. The parties married in 1989 and separated in May 2007.  It was thus a relationship of about 18 years.  There are two adult children, the youngest of whom turned 18 in January 2013.  A divorce has been granted. 

9. The property issue is the only outstanding matter between the parties other than some appeals from previous orders.  The wife filed an amended initiating application on 17 January 2013.  The orders she there sought were altered by the case outline document prepared by her counsel and which the husband had received.  In that document she sought orders that she have all the sale proceeds of the parties’ home currently held in trust in her name.  The balance in that account is just over $411,000. 

10. She also sought to retain her bank accounts, superannuation, chattels and vehicle.  She also sought orders that the husband retain what he had but indemnify her against actions that might involve her in the United States of America and that she have the unpaid costs orders satisfied out of any entitlement of the husband. 

11. The husband’s response having been struck out, he sought no orders. 

12. Section 39 of the Act permits a matrimonial cause to be instituted in this Court between parties to a marriage if either party is an Australian citizen. The wife set out her citizenship as the jurisdictional basis to issue the proceedings. Section 4 of the Act relevantly defines “matrimonial cause” to mean proceedings between the parties to a marriage being proceedings arising out of the marital relationship. There is little doubt here that this dispute arises out of the marital relationship.

13. Section 79 permits a court to make such order as it considers appropriate altering the interests of the parties to the marriage in property. That must be seen in the context of s 79(2) which mandates that the Court shall not make such an order unless it is satisfied that it is just and equitable to do so.

14. In Stanford v Stanford [2012] HCA 52, their Honours referred to the discretionary power which was said to be without formal metes and bounds but not so broad as to amount to being unguided. Discretion must be exercised according to law. The first step in the consideration of whether to exercise the power under s 79 is to identify according to ordinary legal and equitable principles the existing legal and equitable interests of each of the parties in the property in dispute.

15. Once the assets have been identified, the Court must evaluate whether it would be just and equitable to alter those existing property interests.  In Stanford, the Court emphasised that the starting position was not to assume that an alteration must be made. The power operates within the realm of the existing legal and equitable interests as identified between the parties. As the Court stated, the question presented by s 79 is whether those rights and interests should be altered.

16. An interesting issue here is that the home which was sold to give rise to the current cash in the trust account appears to have been owned by the husband and wife as tenants in common as to 65 per cent to the husband and 35 per cent to the wife.  It is not clear to me why that happened but it was conceded by the wife’s counsel that the trust moneys would be similarly held. 

17. Section 79(4) provides that in considering what order, if any, should be made, the Court must take into account the various matters that may loosely be described as contribution factors of all kinds, the matters referred to in s 75(2) so far as they are relevant and how any order would affect a party or child and ultimately child support. The High Court in Stanford noted that the assessments under those provisions are not to be conflated. 

18. While some or all of the factors in s 79(4) may be relevant to the just and equitable inquiry under s 79(2), it is not an exhaustive check list.

19. Therefore once the Court has decided to use the power under s 79 to make an order if it was just an equitable to do so, the pathway to be followed is that outlined in the legislation that requires a consideration of the matter set out in s 79(4).

20. The wife relied upon two affidavits filed 20 May 2013.  She also relied upon the husband’s own documents relating to his financial position and an affidavit of her solicitor to which an actuary had appended the valuation of the husband’s United States pension entitlement.  There was no evidentiary basis for me to admit the actuary’s report and at best, I can take into account that the husband has a government agency pension providing him with $926 per week. 

21. If I was to adopt the approach that the parties’ interests in the trust funds were as the proportions just mentioned in relation to the house, the wife would say that that was not a just and equitable outcome.  Indeed, she seeks all of the money.  Based on her evidence about how the legal ownership came about, such a division would not, in my view, be just and equitable in any event.  Sadly, the husband did not articulate a position upon those issues. 

22. I find therefore that to permit the trust funds to be simply handed back to the parties as the trust was so set up, would not be just and equitable.  It is necessary therefore to look at what the parties have, how they got it and what their respective futures hold, bearing in mind that it is only to the husband’s evidence relied upon by the wife and her own evidence which remains unchallenged by the husband.

23. Accordingly, the statements that follow are findings of fact. 

24. The husband formerly held a United States government agency position.  He retired voluntarily in May 1999.  The parties had met in May 1988 in Hawaii.  At that stage, the wife was 19 years of age and the husband was 36.  The husband had been posted to Hawaii because of his government service.  He had been employed full time since about the age of 18 years in that career. 

25. At the time that the parties commenced living together, the wife had nominal savings and very few assets.  The wife’s evidence was that she was not aware of the husband purchasing any investment real estate and she was certainly not aware of any inheritances or windfalls that he might have received whilst they were together.

26. For many periods of time during their relationship, they lived apart mainly because of the husband’s government service.  Whilst he was away and even when they were together, he continued to pay child support each month for the four daughters of his earlier relationship. 

27. From February 1989 until May 1990 the parties lived in Virginia.  The wife worked about three to five days a week at a local store.  In 1990 the husband was posted to Central America.  The wife did not go there but, indeed, moved back to Australia to live whilst the husband’s posting in Central America continued. 

28. From about May 1990 until December 1991, the wife worked casually at a supermarket in Adelaide.  She also worked cleaning in private homes and in commercial premises.  Her income was so modest that she required the assistance of her parents who subsidised the balance of her living costs.  Her mother and father gave her cash to buy necessities. 

29. In January 1992 when the Central America position concluded, the parties resumed living together and the family went back to the United States.  The wife was employed at a local store which was organised by the husband’s employer.  From January 1993 to January 1994, the husband was posted to Texas and the wife and their then first child, returned to Adelaide again to live with her parents who subsidised their living costs.  In January 1994, the wife returned back to the United States with the husband to Kansas. 

30. In November 1994 the parties were moved to Hawaii and it was there that K was born in January 1995.  In December 1997, the husband was arrested and charged with stealing.  That stealing appears to have been related to government stores.  In May 1999, the husband resigned from the United States government agency and was given the pension.  In October 1999, the parties agreed that they would return to Australia to live in their wife’s parents’ home with the children.  The logic behind that was that the husband had commenced litigation in the United States courts associated with his government agency service. 

31. In July 2000, the parties purchased what is now the former matrimonial home in Suburb N.  The purchase price was $198,000.  It was registered, as I have earlier mentioned, as to 65 per cent to the husband and 35 per cent to the wife.  It was the wife’s evidence, and I accepted, she did not understand the rationale behind the logic. 

32. Of that $198,000, the wife’s parents contributed $13,000.  In addition to the $198,000 there was also some stamp duty.  Up until that particular time, the wife had managed to save about $24,000 and that sum was used towards the purchase of the house.  The balance of the purchase price came from the husband’s bank savings and term deposits.  It may be that that was the reason why the interests in the title were not one that was mathematically equal. 

33. After the wife and the husband purchased the house, the husband returned to America.  The husband visited Australia at least several times a year always staying at the home of the wife’s parents until at least 2006.

34. During that time, he was engaged in litigation in the United States and he constantly told the wife of the various courts that he had attended including appeal courts and that he had every intention of continuing his fight. 

35. In October 1999, whilst in Adelaide, the wife was working on a part-time basis and, again, was receiving assistance from her parents.  From November 1999 and for the ensuing 10 years, the wife worked as a domestic on a part-time basis involved in cleaning duties, laundry and catering.  During that time she completed a healthcare qualification and that has now enabled her to obtain the position that she currently holds as a healthcare worker. 

36. For a period of about a year in 2007 and 2008 the wife had a second job working in the Adelaide markets.  From 2009 until now, she has had the position as a healthcare worker. 

37. During the period of time that the parties were together (and obviously when they were apart) the wife cooked the meals, looked after the household making breakfasts and preparing lunch for the children. 

38. In 2004, the wife travelled to the United States and it was there during the period that the husband was involved in his litigation with the government agency that she learnt that she was named on the court documents of the husband presumably as a litigant or party even though there is no evidence how that could be so. 

39. One of the exhibits to the proceedings in this case has been the judgment of the United States Courts of Appeal of the Federal Circuit.  A decision of their Honours in 2008, dismissed the husband’s various actions.  The judgment dismisses his claims of bias and prejudice, conspiracy by the United States government agency against him, fraudulent larceny charges, alleged involuntary retirement from the United States government agency and a claim for compensation, allegations of tampering with court records and allegations about missing court records generally.  Despite all of that the husband continued to pursue his litigation.  He also pursued litigation against a bank for wrongful release of information to the United States government agency.  That litigation ended up in a payment being made.  Just exactly what has happened to that matter remains a little unclear but it would seem that the order for payment was in the sum of $9285.  It was the wife’s evidence and, again, I accept it, she did not receive any of that money. 

40. By May 2007, the wife had considered the relationship irretrievably broken down and that brought about the separation. 

41. The wife relied upon her affidavit and that of her solicitor which reproduced all of the relevant financial information provided by the husband.  For example, in 2007, he was said to have had savings in Australia and over $170,000 in named accounts.  In America, he had in bank accounts and in bonds about $140,000.  There being no evidence to the contrary I am satisfied he has retained those moneys and they are being used for his own purposes. 

42. With the separation came the proceedings in Australia.  In June 2007, the wife filed an application for property settlement and also children’s orders.  At that stage there was one child under the age of 18 years.

43. Part of the difficulty in this case relates to the future.  The wife indicated in her evidence that she had suffered moderate levels of anxiety since she was a teenager but now takes daily medication and her condition is quite stable.  It seems that the husband has no known illness and on that basis I shall treat him as being fit and healthy. 

44. With the breakdown of the marriage and the parties’ separation and the proceedings then commencing, the matrimonial home in Suburb N was sold.  First, various effects in the home were sold by auction in March 2012.  That netted about $2000 but the costs of their removal exceeded the ultimate result.  With the sale of the effects, the house was then placed on the market.

45. On 30 November 2012 the wife made an application for the sale of the home and Dawe J made orders.  A contract of sale was settled in December 2012.  The husband refused to hand over the certificate of title and that prevented the settlement of the sale occurring.  The wife had to bring an application for the issue of a duplicate certificate of title.  In January 2013, an application for the duplicate certificate of title was made.  At the end of January 2013, I made an order providing for that duplicate certificate of title to issue based on the state laws of South Australia.  With the issuing of a title, on the following day settlement took place.

46. The sale price of that house had been $415,000 and after payment of the various costs, the net proceeds of sale came to $404,800.  Those sums were placed in an interest bearing account in the wife’s name.  That sum has now increased by virtue of the accruing interest. 

47. The question then must be asked, what do the parties have?  I find the following: 

    ·    There is now $411,257 in the home proceeds sitting in trust; 

    ·    There is a motor car in the wife’s name and although it has not been valued I have taken as an admission against interest the sum that she attributes to it of $5000; 

    ·    The wife has superannuation of $22,700 as at 31 December 2012 in a superannuation fund; and

    ·    Then there is the $9285 that is known to be the fruits of litigation in relation to the bank;

    ·    Then there are the things in the possession of the husband that have been disclosed but no explanation has been given as to their current whereabouts. 

1. The husband did not stay to rely upon any evidence. He was accused by counsel for the wife of failing to make proper discovery. That seems relatively clear from the documents that I have read. Rule 13.04 of the Family Law Rules 2004 requires a party in a financial case to make full and frank disclosure of their financial circumstances not only in respect of their various interests in property and in legal entities but also their income. In Weir & Weir (1993) FLC 92-338 the Full Court referred to the earlier decision in Black v Kellner (1992) FLC 92-287 in which the Court discussed the duty falling upon a party to make full disclosure of financial circumstances. As the Full Court said, once a court was satisfied that there had been a deliberate failure to disclose the court should not be troubled about making findings in favour of the party who had complied.

2. As the court also said, to do otherwise encouraged the lack of honesty.  The court can take a robust approach in circumstances where a party knows their duty to be frank and fails to do so.

   In Chang & Su [2002] FamCA 156, the Full Court heard an appeal from a trial judge who had to deal with limited material and a clear non-disclosure by the husband. As was pointed out the by the Full Court, the ultimate imperative is to make an order which is just and equitable. That is what is fair in circumstances where someone declines to provide information or indeed evidence. In K & K [2002] FamCA 1150, the Full Court said that non-disclosure does not necessarily have to be deliberate because the duty to disclose is absolute.

3. At one point in these proceedings, the husband was represented by legal practitioners and, indeed, filed a financial statement.  It seems that he has done so again and if he meant what he said, there is a statement on the front page of that financial statement which indicates that he had read the Court rules in relation to his obligations of disclosure.

4. In this particular case therefore, I propose to take a less cautious approach about just exactly what is the husband’s financial position.  The wife’s financial position is precarious.  She received a partial distribution of property of about $70,000 by an order of the court on 1 October 2010.  That could be considered in two ways.  One is to treat it as an entitlement of the wife at that time because of her legal costs in circumstances where the husband was a persistent litigant or the alternative possibility is that it ought simply be “added back” as part of the parties’ assets because it was a partial distribution of property.  In my view, the latter is the preferred course because the wife’s financial position is now better as a result of having that money.  Having said that, it seems clear that the wife’s financial position still includes problems of debt.  She has a debt to the GE Finance Company which is currently down to $475.  She has a personal loan at the Commonwealth Bank of Australia and that is currently $22,150.  She has a MasterCard and has used the credit on that for such things as education costs, school trips, sporting equipment for K, clothing for K and day to day living costs.

5. It goes without saying that with the history of the litigation in this case, the wife’s costs are enormous.  In my view some of those costs have been unnecessarily exacerbated by the husband’s various applications and notices of appeal many of which have been unsuccessful.  The wife paid $33,700 to her solicitor and her evidence, which I accept, is that there are currently outstanding legal fees of over $200,000. 

6. I turn then to the issue of superannuation.  The wife has an accumulation fund balance of about $22,700.  The husband has a government pension which appears to be secure. 

7. Section 90MC of the Act provides that a superannuation interest is to be treated as property for the purposes of the definition in s 4 that I earlier mentioned. A superannuation interest is defined as an interest that a person has as a member of an eligible superannuation plan. An eligible superannuation plan is defined as a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth). There is no evidence here that would entitle me to conclude that the husband’s pension is a superannuation interest. Having said that, the amount he receives cannot be ignored as the wife followed the husband through this government career for many years and endured various hardships.

8. Prior to December 2002, this Court had to deal with superannuation in circumstances where it was not property and orders could only be made where the interest of the member was an interest vested in possession.  See, for example, Crapp & Crapp (1979) FLC 90-615. Importantly, then and here, the husband’s trustee, to the extent that the government pension is some form of trust fund, could not be subject to orders because they are not parties nor bound by Australian law. I am satisfied that the situation here is therefore one in which I could not make an order effecting that superannuation entitlement if, indeed, that is what it is.

9. A number of approaches arose before 2002 many of which were where the Court took into account the fact that a party had a superannuation interest and offset it in some way against the non-superannuation assets.  That step required some sort of valuation of the interest and I am not comfortable to use the wife’s actuary.  Apart from anything else, the rules have not been followed in relation to expert evidence, there is no evidence about the American legal position nor whether the actuary has the expertise to do what he was doing.

10. Even if I could estimate its value I do not know what the nature, substance and form of the interest is.  It is safer, in my view, to treat it as a secure income stream and one from which the wife has no similar entitlement or benefit. 

11. In my view, the superannuation interests of the wife in this case should be treated separately from the non-superannuation assets.  That is, not to add all of these non-superannuation assets and superannuation entitlements together.  The wife is about 20 years or more away from receiving any real benefit from any superannuation entitlement she has.  It is a very modest amount of money and she has made a significant contribution through her employment over the years without any significant equivalent contribution being made to it by the husband.

12. Although I set out earlier what the husband had been said to control, it is clear, and I so find on the evidence, that the husband now, at least as late as May 2013, has the following:  He had bank accounts with about $60,143;  He had US bonds of about $50,000 and a further $5000 in Treasury bonds;  He had travellers cheques of about $20,000 and cash of about $15,000 and he had a caravan of about $20,000;  It was also said that he had a judgment in the United States of $10,000 but I propose to ignore that as I have no idea what it is. 

13. To the extent that it is important to view the justice and equity question through the eyes of the subjective analysis of the matter set out in s 79(4) of the Act I find the following:

    ·    The wife made a significant financial contribution to the house purchase but the husband made the greater financial contribution from his income; 

    ·    To the extent that the husband earned a good income he has retained much of it and that is reflected in the figures that I have just mentioned; 

    ·    The wife made the overwhelming non-financial contribution to the care and welfare of the family and particularly so after separation until the youngest child turned 18 years of age; 

    ·    The husband and wife each made financial contributions to the acquisition of the house and to the extent that I can draw any conclusion, it seems the husband’s contribution was greater than the wife in the sense that it came from bank accounts in his name.

14. Having regard to the duration of the relationship and the absence of the husband from the family and the role that the wife played, I would still assess the contributions that these parties made as equal over the entire time of the relationship in the period until now. 

15. Section 79(4)(e) requires the Court to consider the matters in s 75(2) so far as they are relevant. I therefore find the following:

    ·    The husband is retired and his income is now confined to the pension he receives but having said that it seems to be secure; 

    ·    The wife is employed but her income is much lower than the husband and very much less secure; 

    ·    The wife has significantly contributed to the husband’s career in the US government agency by travelling and moving with him and supporting the family and thus his employment emoluments through the government pension are very significant resources and from which the wife will henceforth be excluded;

    ·    Both parties enjoy reasonable health in the circumstances that I have earlier mentioned. 

16. Section 75(2)(o) entitles the Court to take into account whatever else the justice of the situation requires.  Here, the husband has pursued litigation in the United States of America relentlessly and as far as I can tell, seems to have lost.  He has pursued these proceedings in this Court and courts associated with this Court relentlessly, and the wife has had her life on hold for six years.  She has lost the use of the entitlement to the money she otherwise should have had.  In my view the security, regularity and quantum of the husband’s income and the opposite position of the wife justify a further adjustment in her favour and I quantify that at 15 per cent because of the modest size of the pool of assets in which either party has an interest. 

17. Taking into account what the wife received in the 2010 partial distribution, what the husband has retained as I have earlier indicated and my overall assessment to which I have just referred, the wife should have the proceeds of the money in trust less the sum of $55,000 which sum represents the husband’s entitlement.  However, the husband already owes, by way of outstanding costs, $12,800 and that entitlement and the entitlement that he has, should be reduced by the $12,800 leaving his entitlement from the trust fund at $42,200.

18. However, in relation to that, yesterday when the case finished, counsel for the wife foreshadowed that there would be a costs application relating to any balance that the husband might receive.  On the basis that I propose to deal with that application now, I would injunct the husband from having access to the $42,200 until the issue of the costs is determined.  I propose to hear the costs application before I actually make the formal orders.

RECORDED  :  NOT TRANSCRIBED

1. I now have an application for costs by the wife arising out of the reasons for judgment that I have just delivered.  Those costs in very round figures come to $48,710.  I propose to reduce that figure by $660 for a disbursement which, for the reasons I articulated in the judgment, is not a matter that I could say was something that had anything to do with the husband. 

2. Section 117 of the Act is the power for the Court to make orders for costs. It provides that in proceedings in this Court each party shall bear their own costs unless there are circumstances that justify a departure from that principle. If the Court is contemplating a justification from departure from that principle it has to take into account the matters set out in s 117(2A) of the Act.

3. In this case there are justifying circumstances. The wife has been put to an enormous amount of expense to get this far over six years for the reasons that I have already outlined. In addition I am quite satisfied that had the husband been more sensible about his approach and, indeed, provided the documents that might have resolved the matter much earlier, this case would never have gone on the extent that it has and cost the wife what it has cost her. On that basis there is a justifying circumstance for making a departure from the principle in s 117. In relation to s 117(2A), there is no suggestion in this case that any party is eligible for legal aid. The financial circumstances of the parties are clear from what I have already set out and it could hardly be said that either party will be impecunious in this case.

4. One of the considerations in s 117(2A) relates to the way in which parties approach the compliance with orders and getting the matter ready for trial. In this case there has been a consistent complaint by the wife that the husband has not discovered documents and she went to the trouble of, indeed, preparing material so that the Court had some understanding of what his financial position is. On that basis I would find that there is a justifiable circumstance and that an order for costs should be made.

5. The wife seeks costs based on the scale.  I am told and there is no reason for me to doubt that the solicitor’s costs come to about $31,000 including the costs that were reserved on 28 March this year and also a hearing in June.

6. As I was the judge in respect of most of those hearings I can recall the basis upon which I made the orders generally rejecting the husband’s position and on that basis, much of the wife’s costs were thrown away as a result of his conduct.  It seems to me that this is appropriate for me to not only exercise the discretion and make an order for costs but to fix it on the basis that to send the parties off to taxation where there could be disputes about the time spent and whether things were done reasonably, would be an enormous waste of everybody’s time including the resources of the court.  I propose, therefore, to exercise my discretion and on the basis that these are costs within the scale to fix them.  The solicitor’s costs seems sensible at $31,000.  I remove the disbursements the $660 for Mr Z.

7. The scale for counsel is within the range.  I propose to make an order that from any entitlement of the husband he pay costs in the sum of $48,050. 

8. Accordingly I make the following orders.  That the wife have the proceeds held in trust in her name.  That the wife retain and the husband have no further interest in the motor vehicle in the wife’s name.  The husband indemnify the wife in relation to all outstanding litigation in the United States of America.  The husband pay the wife’s costs fixed on the sum of $48,050 of which $42,200 is satisfied by paragraph 1 of these orders.  I will certify the counsel and I will dismiss all outstanding proceedings.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 July 2013.

Associate: 

Date:  12 July 2013