French & French
[2021] FedCFamC2F 593
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
French & French [2021] FedCFamC2F 593
File number(s): MLC 13593 of 2019 Judgment of: JUDGE BENDER Date of judgment: 4 October 2021 Catchwords: FAMILY LAW – PROPERTY – The Wife’s application for property orders – Husband Application for Adjournment – the Husband has not filed trial material – the matter had been previously adjourned to allow the Husband further time to file material – the property pool is limited consisting only of the proceeds of sale of the former matrimonial home in the sum of $305,355.29 held in trust by the Wife’s solicitors – where the Husband has spent a significant length of time incarcerated and as a result the Wife was the sole carer and homemaker.
HELD – Husband’s Application for an adjournment be dismissed – the proceeds of sale of the former matrimonial home be divided such that the Wife receives 80 per cent and the Husband receives 20 per cent – the parties otherwise retain assets in their name and possession including motor vehicles and superannuation entitlements.
Legislation: Family Law Act 1975 (Cth), ss.75(2), 79(1), 79(2), 79(4), 117(1), 117(2), 117(2A) Cases cited: Stanfordv Stanford [2012] HCA 52
Hickey& Hickey [2003] FamCA 442
Bevan & Bevan [2013] FamCAFC 116Division: Division 2 Family Law Number of paragraphs: 84 Date of hearing: 4 October 2020 Place: Melbourne Counsel for the Applicant: Mr Glezakos Solicitor for the Applicant: R J Legal Counsel for the Respondent: The Respondent appeared in person ORDERS
MLC 13593 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FRENCH
Applicant
AND: MR FRENCH
Respondent
ORDER MADE BY:
JUDGE BENDER
DATE OF ORDER:
4 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Respondent Husband’s Application for an adjournment be dismissed.
2.The balance of the proceeds of sale of the real property situate at B Street, Suburb C (“the former matrimonial home”) currently held in trust by RJ Legal in the sum of three hundred and five thousand, three hundred and fifty-five dollars and twenty-nine cents ($305,355.29) be paid out as follows:
(a)the sum of two hundred and thirty-six thousand, four hundred and forty-eight dollars and ninety-eight cents ($236,448.98) plus eleven thousand, six hundred and eighty-three dollars and fifty cents ($11,683.50) being the Wife’s costs payable by the Husband as per Order 4 herein, being a total of two hundred and forty-eight thousand, one hundred and thirty-two dollars and forty-eight cents ($248,132.48) to the Applicant Wife;
(b)the sum of sixty-eight thousand, nine hundred and six dollars and thirty-one cents ($68,906.31) less the Wife’s costs of eleven thousand, six hundred and eighty-three dollars and fifty cents ($11,683.50) payable by the Husband pursuant to Order 4 herein, being a total of fifty-seven thousand, two hundred and twenty-two dollars and eighty-one cents ($57,222.81) to the Respondent Husband.
3.Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of the parties in any joint bank (if any) are to become the property of the Wife;
(c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)insurance policies remain the sol property of the owner named thereon;
(e)each party be solely liable for an indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
4.The Husband pay the Wife’s costs of these proceedings as from 23 November 2020 Pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules2021 scale fixed in the sum of eleven-thousand, six-hundred and eighty-three dollars and fifty cents ($11,683.50), such amount to be paid from the Husband’s share of the balance of the proceeds of sale of the former matrimonial home pursuant to Order 2 herein.
5.All extant Applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym French & French has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Revised from Transcript)JUDGE BENDER:
INTRODUCTION
This matter is an Application for property orders filed by the Applicant Wife on 29 November 2019.
The matter first came before the Court on 9 December 2019 and both parties were represented on that occasion. Orders were made adjourning the matter for a one-day hearing with directions for the Husband to file his answering material by 31 January 2020.
The Husband did not file any answering material until August 2020 and only did so in response to the Wife’s Application in a Case in relation to the Husband’s failure to file any material.
The matter came before the Court for final hearing on 9 October 2020. It did not resolve and the parties’ legal representatives advised the Court that the matter was going to take two to three days and that both parties would need to file further affidavit material.
The matter again came before the Court for mention on 16 July 2021 as a result of requests received from the Husband’s solicitors for the matter to be mentioned on the basis that due to the Husband’s recent incarceration they have not had the opportunity to prepare the material that they wished to place before the Court for the final hearing.
The Application was opposed by the Wife. The Husband’s Application was allowed and the matter was adjourned to today with orders for the Husband to file further material by 31 August 2021.
It was made very clear on that occasion that the Court would not be sympathetic to any further applications for adjournment in the event that the Husband’s material was not filed.
BACKGROUND
The Applicant Wife was born in 1958. She is currently aged 63 years. The Wife is in receipt of a carer’s pension. She cares for her elderly mother and in addition has her own health issues.
It is the Wife’s evidence that she is not capable of undertaking paid employment and will be dependent upon government assistance going forward.
The Respondent Husband was born in 1964. He is currently aged 57 years.
The Husband is currently incarcerated and awaiting trial for criminal matters. There has been a delay in the hearing of his criminal matters as a result of issues that have arisen with COVID-19.
The parties married in 1984. They have three adult children; Mr D born in 1987 currently aged 34 and twins, E and F, both born in 1991 and currently aged 30.
In 1983, the Wife and her brother became the registered owners as tenants in common in equal shares of a property at G Street, Suburb H (“the G Street, Suburb H property”).
It is common ground that the funds for the purchase of the block of land and the house that was subsequently built came from funds provided solely by the Wife’s family. There is a dispute between the parties as to what, if any, labour and physical work was contributed by the Husband in the construction of the house.
In 1984 the parties purchased the former matrimonial home at B Street, Suburb C (“the former matrimonial home”). The parties are in dispute as to where the funds for the deposit for that purchase came from. It is the Wife’s evidence those funds were provided by her and it is the Husband’s evidence those funds were provided by him. It is common ground that the parties took out a mortgage in order to complete the purchase.
Prior to the matter coming before the Court on 9 December 2019, the former matrimonial home had been sold by agreement by the parties. On that day there were interim orders made that from the net proceeds of sale, $400,000 be paid to the Wife and $180,000 be paid to the Husband.
When the matter again came before the Court on 9 October 2020, orders were made on an unopposed basis that there be a further distribution to the Wife from the proceeds of sale of $306,236.
As indicated, the parties’ children were born in 1987 and 1991 respectively. Both parties worked full time until 1991 when the Husband was sentenced to two years’ jail with a non-parole period of nine months as a result of trafficking cocaine.
In 1995, the Husband was jailed for a period of six years and six months with a non-parole period of four years and six months as a result of trafficking heroin and other drugs of dependence.
It is the Wife’s evidence that the parties separated at this time.
The Husband was paroled in 1999. It is the Husband’s evidence the parties did not separate when he went to jail, the Wife and the children visited him in jail, he returned to the former matrimonial home when released and that he and the Wife resumed an intimate relationship.
It’s the Wife’s evidence the Husband returned to the former matrimonial home when he was released from jail against her wishes but she was too scared to stand up to him and that at no time did their marital relationship resume.
Over the period from 1995 to 2016 the Husband spent a considerable amount of time in jail as a result of various offences, most of which were drug or firearm-related.
The Wife’s trial affidavit in paragraph 16 sets out a summary of the information gleaned by her solicitors as a result of documents produced under subpoena by Victoria Police and the Victorian Parole Board. I am satisfied that that table accurately reflects the criminal history of the Husband and set it out as follows:
Month/Year
Offences/Parole
Sentence
1991
Traffic cocaine
2 years (non-parole period of 9 months)
3 months of pre-sentence detention
1992
Paroled (to end 1993)
1995
Traffic heroin and traffic other drug of dependence
6 years 6 months (non-parole period of 4 years 6 months)
1996
Unlawful possession, intentionally or recklessly cause injury, burglary
6 months (concurrent)
1999
Paroled (to end 2001)
2003
Possess prohibited imports
3 years (non-parole period of 2 years)
22 days of pre-sentence detention
2004
Firearm importation and other offences
3 years (released after 2 years)
278 days of pre-sentence detention
2004
Traffic methamphetamines, traffic heroin possess firearm, possess drug of dependence
4 years (non-parole period of 2 years 6 months)
73 days of pre-sentence detention
2006
Traffic drug of dependence, possess firearm, stolen goods
5 years 3 months (non-parole period of 4 years)
120 days of pre-sentence detention
2009
Paroled (to end Jan 2013)
2010
Parole cancelled
2012
Paroled (to end Oct 2013)
2013
Parole cancelled
2013
Traffic drug of dependence, possess drug of dependence
3 years (non-parole period of 12 months)
6 days of pre-sentence detention
2015
Paroled (to end Oct 2015)
2016
Parole cancelled
2016
Released with parole
The parties differ in relation to how the Wife supported herself and the three children during the Husband’s extensive periods of incarceration. The Wife’s evidence is she worked a large number of jobs and used the moneys earned by her to maintain both the home and the children with little or no assistance from Husband. It is the Husband’s evidence that when not in jail he was able to provide support to the Wife as a result of successful gambling activities and from monies borrowed against the former matrimonial which were used by the Wife to support herself and the children.
It is the Husband’s evidence that the parties finally separated in 2010, although he continued to provide funds to support the Wife and the children after this date.
In May 2016 the G Street, Suburb H property was sold. The net proceeds of sale was $603,722.54. At settlement $301,861.27, being half the proceeds of the sale, were placed into the Wife’s bank account.
It is the Wife’s evidence that her brother and parents were wholly responsible for all the costs associated with the G Street, Suburb H property from its date of purchase as she was never in a position to pay her half share. It was therefore agreed her brother would be reimbursed the costs and expenses paid by him and his Mother on the Wife’s behalf on settlement of the sale of G Street, Suburb H. Accordingly from the moneys received by the Wife, the amount of $185,000 was paid by her to her brother. She annexes to her trial affidavit the bank statements evidencing this payment.
The former matrimonial home was first placed on the market for sale by the parties on 2 June 2018. It sold at auction. The purchasers paid the deposit, but subsequently defaulted and as a result the deposit was forfeited. Both parties received $21,307 from the defaulted deposit.
In anticipation of receiving funds from the sale of the matrimonial home, the Wife entered into a contract to purchase a property in Suburb J for $600,000 off the plan. When the first sale of the matrimonial home fell through, the Wife was required to obtain bridging finance to meet her obligations under the contract.
The former matrimonial finally sold by private treaty on 23 July 2021 for $1,250,000. There were commissions, outstanding rates, a Legal Aid caveat for costs incurred as a result of the Husband’s criminal convictions and other expenses that needed to be met from the proceeds of sale. As set out, pursuant to Court orders thus far, the Wife has received $706,236, and the Husband $180,000 from the proceeds of sale. There is a balance currently sitting in the Wife’s solicitors’ trust account of $305,355.29. It is how the balance of the proceeds of sale of the former matrimonial home currently held in the Wife’s solicitor’s trust account are to be distributed between the parties that is in issue before me today.
The Wife is seeking that she receive the entirety of those funds. The Husband is proposing that those funds be divided equally between them.
ADJOURNMENT APPLICATION
The Husband seeks the matter be adjourned today.
The Husband submits that because of issues in relation to COVID-19 he has had difficulty communicating with his solicitors and further, they have not done what he asked them to do. The Husband’s solicitors filed a Notice of Withdrawal on 27 September 2021.
In these circumstances the Husband submits that he will be disadvantaged if he is not allowed a further opportunity to file material.
The Husband’s Application for an adjournment is strongly opposed by the Wife.
The Wife’s Counsel submits that the Husband has had more than adequate time to prepare his case and that he has failed to do so.
It is further submitted on behalf of the Wife that the issues before the Court are quite limited. There is a relatively small amount of money sitting in a trust account and it is time for this matter to be resolved once and for all. It is argued that in circumstances where the ambit of the dispute is quite narrow, it can be heard and finalised today.
As was indicated in the introduction of this judgment, the final hearing of this matter was previously adjourned following an application for adjournment by the Husband on 16 July 2021. It was made clear that the Court would not easily entertain any further adjournment applications.
I am of the view that this matter can be dealt with today.
There is a limited property pool and I am well abreast of the issues for determination. I will also allow the Husband to put all matters he submits are relevant to the division of the net proceeds of sale orally today.
THE LAW
Section 79 of the Act defines the Court’s powers in determining applications for property settlement after the breakdown of a marriage. Section 79(2) of the Act provides that:
(2)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under s.75(2) of the Act are as follows:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The High Court in the matter of Stanfordv Stanford [2012] HCA 52 held that prior to making orders that adjust any interest in the property in which the parties have an equitable interest in accordance with the provisions of the Act, the Court must first determine that it is just and equitable to make such orders. The High Court in Stanford (supra) held that in the majority of matters, the decision as to whether it is just and equitable for the Court to make orders adjusting the parties property interests is resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.
The requirements of Stanford (supra) are clearly met in the circumstances of this matter. Following the breakdown of the relationship, both parties are seeking that orders be made that enable the parties’ financial affairs to be resolved so they can move on with their lives.
I am therefore satisfied that it is appropriate I should be making orders that alter the parties’ equitable property interests.
Prior to the decision in Stanford (supra), a trial judge would in most cases follow the four-step approach in determining how to alter property interests between the parties as articulated in the Full Court decision of Hickey& Hickey [2003] FamCA 442. The four-step process in Hickey is as follows:
(a)firstly, the court will determine the nature of the property pool and attribute valuations;
(b)secondly, the court will consider the contributions of the parties to the property pool, including direct and indirect financial contributions, and non-financial contributions, often in the form of homemaker and parent;
(c)thirdly, after considering entitlements based on contributions, the court determines whether any further adjustments to either party’s entitlement is proper given the considerations under s.90SM(4) of the Act;
(d)finally, the court stands back and considers whether the proposed division of property is just an equitable pursuant to s.90SM(3) of the Act.
The High Court in Stanford (supra), and subsequently the Full Court in the matter of Bevan & Bevan [2013] FamCAFC 116, neither approved nor disproved this four-step approach. The Full Court in Bevan (supra) noted the four-step approach should not be rigidly followed but it does provide a useful guide to a Court when it is determining the division of property between the parties once the Court is satisfied that such a division is just and equitable.
I am satisfied that this is a matter where the four-step approach of Hickey (supra) is the appropriate approach to take to determine a just and equitable division of property between the parties.
ASSETS AND LIABILITIES
The Outline of Case filed by the Wife on 27 September 2021 contains an assets and liabilities table which includes in addition to the proceeds of sale of the former matrimonial home, small amounts in relation to motor vehicles, monies paid to discharge a Legal Aid caveat for costs incurred by the Husband for his criminal matters and a small amount of superannuation.
I do not propose to include those items in the pool for division between the parties. They are assets of minor value and their inclusion in the pool of assets does not assist in determining what would be a just outcome for these parties.
The assets and liabilities of the parties that will be considered when determining this matter are set out as follows:
Item Value Proceeds of sale of the property at B Street, Suburb C (“former matrimonial home”) $1,191,591.29* Forfeited deposit on first sale of the former matrimonial home $42,614.00** Total $1,234,205.29 *
of this sum, the Wife has received $706,236.00 and the Husband has received $180,000.00
of this sum, the parties have already each received $21,307
**CONTRIBUTIONS
It is submitted on behalf of the Wife that whether the parties separated in 1995 or 2010 does not make a difference when considering the question of the parties’ respective contributions. The Wife submits that it is apparent that for much of the period that is in dispute the Husband was incarcerated and was not in a position to and did not make any real contributions to the family, either financially or practically.
The Wife submits as a result of the Husband’s criminal behaviours, he did not contribute to the family in any meaningful way from 1991 onwards. It is submitted that the primary, if not sole responsibility to care for the parties’ three children fell on the shoulders of the Wife as the Husband was just not there. It is submitted that it was very much a case of the Wife having to juggle the family’s finances to keep a roof over the head of herself and the children and in those circumstances it must be seen that the overwhelming contributions as homemaker, parent and financially were made by her.
In relation to the G Street, Suburb H property, it is the Wife’s contention that the totality of the moneys that were used to purchase, develop and maintain that property were provided by her family.
Given the precarious financial circumstances that the Wife found herself in as a result of the Husband’s criminal activities, she was not in a position to make any contributions to the G Street, Suburb H property. It is therefore argued that any increase in the value of the G Street, Suburb H property was a windfall as a result of market forces and not because of any contributions that were made by either party.
It is submitted on behalf of the Wife that there should be an overwhelming adjustment made in her favour to reflect the considerably greater contribution made by her because of the Husband’s criminal activities and the responsibilities that therefore flowed in her direction.
The Husband does not dispute his criminal history. However, it is his evidence that he did make considerable contributions when not incarcerated, primarily as a result of his gambling activities.
It is the Husband’s evidence that the Wife was not capable of managing their finances, that she didn’t know how to pay a mortgage or how to pay any bills. He offers no explanations as to how this was done whilst he was in jail.
It is the Husband’s evidence in relation to the G Street, Suburb H property that he utilised his qualifications as a builder to build the house and he therefore made considerable contributions to the G Street, Suburb H property. He therefore strongly refutes the Wife’s evidence that he made no contributions to that property.
The Wife denies the Husband was involved in the building of the house at G Street, Suburb H. It is her evidence the house was built because of the sole efforts of her family.
S75(2) FACTORS
In relation to 75(2) factors neither party is in a good position.
The Wife will be dependent upon social security for her support going forward.
The Husband’s circumstances are unclear, given he is facing very serious charges. Given his criminal history, if convicted of the matters with which he’s charged he will likely receive a lengthy jail term. It is noted the Husband intends to plead not guilty.
The Husband is in his late 50s and deposes to also having health issues. He also has not worked since the 1990s. Given his criminal history it will be difficult for him to obtain employment once he is released from prison.
The difference between the parties is that the Wife has been able to utilise the funds received by her to secure a property in which she will be able to live.
It would appear from the Husband’s evidence that the funds that have been received by him have either been used to repay his brother or otherwise have been used to meet the legal costs of his current criminal matters.
If I were to make orders as proposed by the Wife it would be an 85/15 division of the asset pool.
If I were to make orders as proposed by the Husband it would be a 75/25 per cent division of the parties’ assets.
JUST AND EQUITABLE
There is no doubt that there has been a considerably greater contribution made by the Wife than that which was made by the Husband because of the Husband’s criminal activities resulting in him being incarcerated for lengthy periods during the parties’ relationship.
The sole care of the parties’ children rested with the Wife as did the maintenance of the matrimonial home.
The Husband was absent from the lives of his family members for a large part of the relationship because of his own behaviours. The Wife was almost solely responsible for the care of the parties’ three children and for maintaining the former matrimonial home. For these reasons there should be a considerable adjustment made in the Wife’s favour.
I am otherwise satisfied that in the context of section 75(2) there should be no adjustment in either party’s favour.
I am of the view that there should be an adjustment in the Wife’s favour such that she receives 80 per cent of the parties’ pool and the Husband receives 20 per cent of the parties’ pool.
What that means in practical terms is that from the moneys currently held in the trust account by the Wife’s solicitors, the Wife should receive the amount of $236,448.98 and the Husband $68,906.31. The parties should otherwise retain the property currently in their respective possession. I intend to make orders accordingly.
COSTS
Counsel for the Wife made an application that the Husband pay the Wife’s costs from when she put forward a Calderbank offer on 23 November 2020. On that date the Wife offered to resolve the matter on the basis that the Husband receive $120,000 from the moneys held in trust and she retain the balance.
That sum offered by the Wife to the Husband to settle the matter is considerably less than that which I have now ordered the Husband receive.
The Husband’s evidence is that he was not appraised of the Wife’s offer at the time it was made and that it was only brought to his attention recently by his now former solicitors.
When the Wife’s offer was brought to his attention the Husband’s response was not to see if that offer was still available and accept it but rather to put in a counter-offer that was rejected by the Wife.
Section 117(1) of the Act provides that generally in family law proceedings each party bears the responsibility of their own legal costs. However, s.117(2) of the Act gives the court the discretion to make alternative orders in relation to costs, including that one party pay the costs of the other. Section 117(2A) of the Act sets out the factors that the court can consider when contemplating the question of whether one party should pay the costs of the other. Section 117(2A)(c) provides that the Court can take into account the conduct of the parties to the proceedings.
Where a Calderbank offer is made that is considerably more than the amount the Court orders be received by a party and that offer is not accepted, then I believe it is appropriate that an order be made that the person who had to pursue the matter after the making of the Calderbank offer should not be put to the additional costs they incur as a result of the refusal to accept the offer.
If the Husband had accepted the offer it could have been resolved nearly 12 months ago at considerable savings to the Wife, not only in respect to her legal costs but also the considerable expenses she has incurred in having to find bridging finance in relation to her purchase of the Suburb J property because she has not been able to receive her share of the funds currently held in trust.
Accordingly, an order will be made that the Husband pay the Wife’s costs as from 23 November 2020 in accordance with scale, being a total of $11,683.50. This amount is to be deducted from the money the Husband is to receive from the funds currently held in trust on behalf of the parties.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender. Dated: 4 October 2021
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