Fowler and Liddle

[2011] FamCA 1086

FAMILY COURT OF AUSTRALIA

FOWLER & LIDDLE [2011] FamCA 1086

FAMILY LAW - INTERIM PROPERTY SETTLEMENT – Application by husband for interim property adjustment for (a) legal costs and disbursements and (b) medical expenses – Application dismissed.
FAMILY LAW - SPOUSAL MAINTENANCE – Application by husband for interim periodic maintenance – Failure to demonstrate a need – Application dismissed.
FAMILY LAW - COSTS – Husband wholly unsuccessful in proceedings – Application of wife granted for specified sum to be paid by husband to wife following final property settlement.

Family Law Act 1975 (Cth)

Barro v Barro (1983) FLC 91-300; (1982) 8 Fam LR 855
In the marriage of Bevan (1996) FLC 92 693; (1996) 20 Fam LR 766
Peters (9 March 1994, unreported)
Poletti 15 Fam LR 794
Zschokke (1996) FLC 92 693; (1996) 20 Fam LR 766

APPLICANT: Mr Fowler

RESPONDENT: Ms Liddle

FILE NUMBER: NCC 3033 of 2010

DATE DELIVERED: 5 September 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 5 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Siggens

SOLICITOR FOR THE APPLICANT:

Mr Sweeney

Sweeney Tiggermann

COUNSEL FOR THE RESPONDENT: Mr Sweet

SOLICITOR FOR THE RESPONDENT:

Mr C

C Law Firm

Orders

1. That the application filed by the husband on 14 June 2011 is hereby dismissed.

2. That the husband pay to the wife her costs of today’s proceedings in the sum of $3,750.00.

3. That sum is to be paid by the husband to the wife within fourteen (14) days of the completion of the property proceedings between these parties whether completion is effected by settlement or by Order of the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowler & Liddle 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 PARRAMATTA

FILE NUMBER: NCC 3033 of 2010

Mr Fowler

Applicant Husband

And

Ms Liddle

Respondent Wife

REASONS FOR JUDGMENT

Introduction

1. The application before me today is the Application in a Case filed on behalf of the husband, in which he seeks orders for payment to him of a sum of money, $100,000, by way of interim property adjustment.  He then seeks consequential orders if that amount is not paid.  He seeks payment within 14 days, or in default, he seeks the sale of property.  Thereafter, he seeks an order for periodic maintenance at the rate of $2,000 per week and an order for the Registrar to sign if either party refuses or neglects to execute any necessary document.

2. The wife filed a response to the husband’s application in Court today.  Her response seeks dismissal of the husband’s application and an order for costs.

The parties’ documents

1. The husband filed and relied upon the following documents:-

   ·An affidavit of himself affirmed on 10 June 2011 and filed on 14 June 2011; and

   ·A statement of his financial circumstances verified by affidavit on 10 June 2011 and filed on 14 June 2011.

2. The wife, for her part, relied upon the following documents:-

   ·An affidavit of herself sworn on 3 September 2011 and filed in Court on 5 September 2011; and

   ·A statement of her financial circumstances verified by affidavit on 23 February 2011 and filed on 18 March 2011. 

The issues

1. To my mind, there are three separate, but interwoven, claims before me. 

2. One is what might be called the husband’s application for an amount of money to be paid to him in respect of legal costs and disbursements.  The second, which is not particularised in the application but clearly seems to arise from his affidavit, is that he seeks money to put towards significant medical expenses.  Thirdly, he seeks periodic spousal maintenance.

3. Dealing with them then, as it were, in turn. 

Interim property adjustment for legal costs and disbursements

1. The first of the applications relates to payment of an amount of money for the husband to be able to prepare his case.  There are a significant number of cases that deal with this type of application.  Such applications are often referred to as Barro[1] or Poletti[2] applications.  There is a line of authority that comes through those cases, and most recently, it appears the situation was looked at by Kay J in determining an unreported matter in 1994 – the matter of Peters (9 March 1994, unreported).  His Honour set out, by adoption of other materials, a number of matters he found were necessary to ground such an order.

   [1] (1983) FLC 91-300; (1982) 8 Fam LR 855

   [2] 15 Fam LR 794

2. It would seem to me from a reading of the material, and particularly having regard to the case of Zschokke[3], that the type of application presently before me can be looked at and considered under a number of heads as to whether the application is indeed a maintenance order or a partial property order. I am satisfied that either under sections 117, 79 combined with 80 of the Family Law Act 1975 (Cth), the Court has power to make such an order. Therefore, it would seem to me that jurisdiction to make an order is not in doubt. However, I am satisfied that there are a number of matters that are prerequisites before the Court can entertain such an application and certainly before the Court can be persuaded to make an order of this kind.

   [3] (1996) FLC 92 693; (1996) 20 Fam LR 766

3. The application must be supported by detailed affidavits, including affidavits from the applicant, his or her solicitor, and each of the professionals whom the applicant asserts it is necessary to retain.  I am satisfied those affidavits need to address the matters above and be specific as to the quantum of funds sought to cover the necessary costs.  Further, it must be established the source from which such an order may be satisfied.  To simply nominate a number of properties, in my view, is insufficient. 

4. More significantly, I am satisfied that the application as to money for costs must fail because it does not comply with the requirement for specificity as to what amounts are required and for what purpose.

5. I have no doubt that the legal representatives of the husband have done their best.  What I say is no criticism of them.  However, I am satisfied that before I can do that which they ask, a number of things are required to be put before me to satisfy me.  Put simply, those things have not been brought to my attention and, so far as I am concerned, that aspect of the matter, that is, the application for an amount of money for legal fees and disbursements must fail.

Interim property adjustment for medical expenses

1. The second of the matters is the medical expenses.  As I say, there is no claim for that in the husband’s application.  It comes into existence at paragraph 39 of the husband’s affidavit, which states “I have immediate need of lump sum payments to pay for my medical treatment and legal expenses because of these proceedings.”  I am prepared, for the purpose of the argument, to say that if I am satisfied it ought be done, I do have the power to make an order of this kind.

2. However, that aspect of the matter fails because it is simply, in effect, a throwaway line in an affidavit.  Whilst (a) one feels sympathy for the husband, and (b) this is in no way to be critical of his legal representatives, I am not satisfied, and cannot be satisfied, that there is any specificity in that which the husband seeks that would enable me to make an order.  That part of his application, arising from his affidavit, must then also fail.

Interim periodic spousal maintenance

1. I turn then to the husband’s application for spousal maintenance.  The husband seeks a figure of $2,000 per week.  This is truly an ambit claim.  On the face of the documents, it has no prospect of success.

2. A maintenance application requires a two-step process to be satisfied.

3. First, it requires that there be demonstrated a need.  The way in which the husband has completed his financial statement shows that the amount he has coming in meets his needs.  Whilst cases such as Bevan[4] speak of the amount of money to be paid not having to be on a subsistence level, in this case the husband says that he is managing.  I am aware that at the rear of his statement, under the heading “Average weekly expenses”, there appears to be a list of expenses for him that might well exceed the amount that he is actually receiving and which, he says, he is expending.  It seems to me, however, that the husband has not demonstrated a need on his documents, as they now stand, that would enable me to make a periodic maintenance order.

   [4] In the marriage of Bevan (1995) FLC 92-600, 19 Fam LR 35

4. Having determined that, I believe I am not required to look at the ability of the wife to fund such an order, and I do not propose to do so.

5. What I would say is that, most unfortunately, this application is misconceived.  In all respects, I am satisfied that it cannot succeed, and accordingly, the Application in a Case filed by the husband in this matter on 14 June 2011 is dismissed in its entirety.

Costs of the day

1. Having dismissed the husband’s application for an amount for legal costs, an amount for medical expenses and for spousal maintenance, the wife now seeks that the husband pay her costs of and incidental to today.  That is clearly contained in her Response to an Application in a Case filed in Court today.

2. I am satisfied that, without making further inquiry as to whether or not the husband proposed to file further material, the wife had some obligation to file her documents before this date.  I am satisfied that as a matter of strict construction that time for her to do so expired before the end of July, and of course, there has been the whole of the month of August in the meantime.  Having said that, I would have thought that the husband might have realised that he was on quite thin ice so far as this application was concerned, and might well have anticipated that the result could well be that his application would be struck out.

3. I have invited an assessment of the costs involved.  I have been given a figure of $5,000.

4. This is a matter where section 117 of the Act is in play. Section 117(1) talks about the usual order being for the parties to each pay their own costs. However, the Court has the power, if it considers it appropriate, to make an order for costs if circumstances so justify that course. That does not mean the circumstances need be exceptional, but they need justify the making of an order.

5. In considering whether or not an order for costs is to be made, I am to have regard to section 117(2A). That section sets out the various matters that the Court must take into account in determining whether or not an order for costs is justified.

6. The first is the financial circumstances of each of the parties (subparagraph (a)).  I am satisfied at the moment that the husband’s circumstances are not good.  The wife does seem to be in control of what was previously the family business and properties registered jointly with the husband and with other persons.  Her position, therefore, seems to be superior to his.

7. However, I have regard to the fact that there is a property application on foot.  On my brief reading of the material, the husband, when the matter comes on for final hearing, will receive and obtain money or monies worth in recognition of his entitlements in the matrimonial property.

8. I am not told that either party is in receipt of legal aid (subparagraph (b)).

9. The conduct of the parties I take into account (subparagraph (c)).  In this regard, the application, so far as I am concerned, is an application with very limited prospects of success.

10. The proceedings were not necessitated by the failure to comply with previous orders (subparagraph (d)).

11. Subparagraph (e) has application here, in relation to whether any party to the proceedings has been wholly unsuccessful in the proceedings.  I am satisfied that in the proceedings before me, and having regard to the orders that I have made, the husband has been wholly unsuccessful.

12. I do not wish this matter to be further delayed by the need to have an assessment carried out by an assessing officer.  I have invited Mr Sweet to put a figure before me of the costs the wife seeks, which he has done.

13. In my view, the appropriate sum in this case would be $3,750.  What I propose to do is order that that amount be paid by the husband to the wife within 14 days of the final property settlement being effected, either by agreement between the parties or order of the Court.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 5 September 2011.

Legal Associate:       

Date:    18 July 2012