GASPALDI & GASPALDI

[2009] FamCA 1121

FAMILY COURT OF AUSTRALIA

GASPALDI & GASPALDI [2009] FamCA 1121

FAMILY LAW – PROPERTY – Enforcement under the Family Law Rules 2004 (Cth)

FAMILY LAW – COSTS – Discussion of indemnity costs

Child Support (Assessment) Act 1989 (Cth) s 117(1)
Family Law Act 1975 (Cth) ss 80(1), 117(2), 117(2A)
Family Law Rules 2004 (Cth) Rule 20.01, Rule 20.04, Rule 20.05, Rule 20.07

Gyselman & Gyselman (1992) FLC 92-279

APPLICANT: Ms Gaspaldi

RESPONDENT: Mr Gaspaldi

FILE NUMBER: CA F 80 of 2004

DATE DELIVERED: 15 October 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 15 October 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Gesini, Consensus Family Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Within 28 days, the husband vacate the property contained in Deposited Plan …, Block …, Section …, known as H Street in the Australian Capital Territory (“the Property”), leaving it in an empty, clean and tidy condition.

2. Pursuant to Rule 20.05 of the Family Law Rules 2004, the wife be appointed as trustee for the sale of the Property with authority to conduct the sale of the property, such authority to include but not be limited to:

   a.      Appointment of a Real Estate Agent and/or Auctioneer to sell same;

   b.      Appointment of a firm of solicitors to act on the sale;

   c.      Signing the contract for sale;

   d.      Doing all acts and things to ensure that the Property is ready for sale and inspection prior to sale;

   e.      Determining the terms and conditions of sale provided that the wife give the husband seven days notice of the terms and conditions prior to the wife signing the Contract for Sale;

   f.      Transfer of the Property to the Purchaser or Purchasers;

   g.      Disbursement of the proceeds of the sale of the Property pursuant to these Orders.

3. The wife pay the following amounts from the proceeds of the sale of the Property in the following priority:

   a.      The costs, expenses and commission of the Real Estate Agent and/or Auctioneer acting on the sale of the property;

   b.      The costs and disbursements of the solicitor acting for the wife on the sale of the Property;

   c.      The usual rates and adjustments as between buyer and seller;

   d.      The whole of any principal and interest outstanding to the Westpac Banking Corporation in respect of mortgage number … registered against the title of the Property;

   e.      Such amounts as are necessary to reimburse the wife for any other costs incurred by the wife in relation to effecting these Orders for sale of the Property including but not limited to:

   i.Costs and expenses of any necessary maintenance, repairs and/or painting;

   ii.Costs of engaging a Cleaner or similar Contractor to make the Property ready for sale, including the costs set out in Order 2(d) above;

   f.      Advertising expenses.

   g.      $55,000 to Consensus Family Lawyers in satisfaction of the Orders dated  21 July 2009;

   h.      Interest on the $55,000 from the due dates outlined in the Orders of 21 July 2009;

   i.       The wife’s costs of and incidental to this application in the sum of $6,000;

   j.       The balance (if any) to the husband.

IT IS FURTHER ORDERED:

1. Given that the husband has not been in Court this day that he may apply to set aside these orders upon filing an affidavit setting out and explaining his absence from Court this day and explaining precisely what orders he does seek from the Court on or before 4pm on Friday 23 October 2009. 

2. The operation of orders 1, 2 and 3 above are stayed until 26 October 2009 or, if the husband has filed an affidavit in accordance with Order 4 above within the time stipulated, until the matter is next before this Court.

IT IS DIRECTED THAT:

1. Any application for a re-listing of the matter and for the setting aside of the orders should be listed before me as promptly as it might reasonably be.

2. This application in the matter generally is removed from the pending cases inventory. 
   
   

IT IS NOTED that publication of this judgment under the pseudonym Gaspaldi & Gaspaldi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 80 of 2004

MS GASPALDI

Applicant

And

MR GASPALDI

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the Application before the Court is that filed on behalf of the wife in these proceedings; Ms Gaspaldi, on 9 September 2009.  In support of the application, an Affidavit was filed which sets out the circumstances in which previous orders for costs that had been made, and which were before me, had been quantified by consent after a conference before a Registrar at this Court.  The conference was not part of the cost assessment process that is stipulated by the Family Law Rules 2004 (Cth), but a conciliation conference in accordance with an order made by me on 11 June 2009.

The wife’s application

1. The orders sought, and the Affidavit in support by the applicant, are that the husband’s property at H Street, in the Australian Capital Territory (ACT) be vacated by him and sold, (and I use those terms in a shorthand way to indicate a quite precise and comprehensive list of provisions about such sale), to satisfy the quantified depth of costs against the husband. 

2. The orders for costs are stipulated in the Affidavit and I will not repeat them.  The orders that give rise to the quantification were asserted to have been made by consent by the Registrar on 21 July 2009 and, again in shorthand rather than any formal way, quantify the amount due from the husband at $55,000 with other provisions about interest.

The husband’s response

1. The husband, in reply to the application, filed an Affidavit and a Response.  The Response seeks an eclectic suite of orders which include:  the dismissal of the current Application; a declaration that the bill of costs before the Registrar be declared to be invalid (which is not really a matter either open on these proceedings or possible without some further process);  an order that a further settlement conference regarding the bill of costs occur; a lifting of the caveat on his property in H Street; an order which I take to be an application for a departure order, although it is not clear to me from the material what it would be, that the wife pay to him certain sums of money relating to child support;  and that she pay the costs of “this unjust and unfair legal action.” 

2. Implicit in the response is really an Application by the husband that the orders made by consent by the Registrar be the subject of a review and that, if that review is granted, as almost inevitably it would have to be because it is a rehearing, and the orders are made by consent and one of the parties no longer consents, then that there should be a further conference for the purposes of determining, presumably, whether the parties can reach agreement about the question of costs. 

Discussion

1. In relation to that matter, in the absence of the husband, I make the following comments. The orders were apparently made by consent on 21 July 2009, hence any application to review should have been made a long time ago in accordance with the Family Law Rules 2004 (Cth). Even allowing for the best interpretation on the material the husband sets out in his Affidavit, and to the extent that that material is not properly admissible, it would seem to be the case that he would want to argue two things:

   (i)That as a matter of justice the orders should be set aside because he would, it seems, want to assert that they were extracted from him against his free will. 

   (ii)That since the time the orders were made he had been endeavouring to make arrangements to pay his former wife, but had been unsuccessful in doing so for a variety of reasons, one of which appears to be that there had been a refusal on the part of the Child Support Agency to register a child support agreement. 

2. Why this should have been a reason for failure to comply with the orders is not entirely explained given that there is a notation to the order that the parties would do what they could to put into effect the child support agreement that had been referred to in an earlier notation.  However, the agreement itself does not form part of the orders nor is it necessary for a child support agreement to be registered in this Court.  It does not seem to me that there is any logical basis for saying that this must be regarded as an integral part of the compliance with, or a completion of, the original orders,  the cost as quantified by agreement before the Registrar on that day. 

3. I note, further, that in relation to the issue of whether or not an Application might be granted for leave to review a decision out of time, it appears, and I accept the assertion from Ms Gesini today, that the bills were brought in before the Registrar, some in excess of $80,000, and compromised through the conciliation process in the sum of $55,000.  Whether it will be in the husband’s interests for the review to be set aside is another question altogether. 

4. It seems to me that even if I were to determine that he should be given leave, although he does not seek it, to review the Registrar’s decision out of time, that the proper response to that setting aside of the orders would be the reference of the matter to a Registrar for assessment in accordance with the Family Law Rules 2004 (Cth), rather than a further conciliation conference, although it would not necessarily be inappropriate for a conciliation conference. In any event, the husband is not here to prosecute his alternative orders and I make no determination about what he might or might not have been wanting to put before me. I merely make these comments as a matter of guidance.

5. I turn then to what is sought by the wife in these proceedings.  The orders that are sought involve her appointment as a trustee for sale in respect of the property and then set out a series of mechanical provisions which would enable that process to occur. 

6. The first order sought relates to ensuring that the order could be carried out by requiring the husband to vacate the property. In this regard, s 80(1) of the Family Law Act 1975 (Cth) provides for powers of the Court to make orders of the sort that are presently before the Court, and Chapter 20 of the Family Law Rules 2004 (Cth) provides for the enforcement of financial orders and obligations, specifically that obligations may be enforced to pay money.[1] 

   [1] Family Law Rules 2004 (Cth) Rule 20.01(a).

7. This is an order that the husband pay money. The people who are entitled to enforce the obligation under Rule 20.04 of the Family Law Rules 2004 (Cth) include the present applicant.[2] Chapter 20.05 of the Family Law Rules 2004 (Cth) relevantly provides:

   An obligation to pay money may be enforced by one or more of the following enforcement orders:

   (a) an order for seizure and sale of real and personal property including under an enforcement warrant (see Part 20.3).

   [2] Family Law Rules 2004 (Cth) Rule 20.04(a).

8. The present application does not seek to utilise the provisions under Part 20.3 of the Family Law Rules 2004 (Cth), but rather the general provision under Rule 20.5(a) In those terms, although the present orders sought do not precisely comply with the details required for an enforcement warrant, it is not necessary that they should do so.

9. Rule 20.07 provides that the Court may make other orders under its general enforcement power including, in aid of enforcement of an obligation[3]  and to prevent the dissipation or wasting of property.[4] 

   In those circumstances, the first order sought by the wife in these proceedings, that he vacate the property, in my opinion, can correctly be identified as in aid of enforcement of an obligation and, secondly, to prevent the dissipation or wasting of property.  The balance of Rule 20.07 relates sensibly to the process that might be undertaken in relation to the sale, should that occur. 

   [3] Family Law Rules 2004 (Cth) Rule 20.07(d).

   [4] Family Law Rules 2004 (Cth) Rule 20.07(e).

10. I comment that in the absence of the husband, and his absence is not explained, notwithstanding he was present when Registrar Parker made an order setting an the matter down for determination today, that the drastic step of selling his house may need to be the subject of leave to bring the matter back before the Court on relatively short notice.  It also should be the case that the commencement of the process of sale should at least be postponed for a short time subject to an undertaking from the wife that she would, if required to do so, remove the caveat.

11. I accept that the caveat has, in fact, been withdrawn and in those circumstances if the husband were, as he appears to suggest in his Affidavit, to be able to raise the money in some way by, presumably, using the property as security then his arrangements about that must be well and truly entrained.

Child support

1. I have previously indicated that I do not regard the child support obligations as being interdependent with the arrangements in this matter, although they certainly appear to have been part of the agreement between the parties following upon the conciliation conference.  Nothing in these orders would prevent the husband from pursuing whatever remedies he believes he has in relation to the child support issue or, alternatively, if the child support agreements cannot or will not be registered, between pursuing his entitlements under the Child Support (Assessment) Act 1989 (Cth) against the wife if he should wish to do so or be able to do so.

2. I comment, in passing, as I did previously; this Court would not, on the basis of the information made available to it by the husband in his Affidavit, be able to make an order for departure from any assessment that has previously been made because of his failure to comply with s 117(1) of the Child Support (Assessment) Act 1989 (Cth) and the provisions of this court as set out in Gyselman & Gyselman.[5] 

   [5] See Gyselman & Gyselman (1992) FLC 92-279 (Nicholson CJ, Fogarty and Ngyh JJ).

Indemnity costs

1. I therefore make orders in accordance with the Application.  I note that included in that is in order 3(h):

   ... the wife’s cost and incidental to this application on an indemnity basis.

2. The law relating to indemnity costs has had a long history before this Court and is complicated by a number of factors including the question of whether or not, in circumstances where indemnity costs are ordered, it is open to a party seeking those costs to effectively recover anything that he or she may have paid notwithstanding it may have been in terms “unreasonable or unnecessary.” 

3. In this matter, I do not believe I have enough evidence before me to enable me to form a view that I should make an order for indemnity costs.  I do note, however, I have some evidence that the costs that would be payable by the wife to the date of her Affidavit were about $5,000 and that is likely, I am informed by Ms Gesini, and I accept as an estimate today from my own experience of these things, that the further costs in relation to enforcement may be in the order of $7,000. 

4. Accordingly, it seems to me that I could, in reasonable terms, in fulfilment of my obligations under s 117(2) of the Family Law Act 1975 (Cth), make an order as to costs. This would not then involve me necessarily in making a determination about whether those costs should be on an indemnity basis or otherwise and has the advantage that so far as the parties are concerned there is a certainty about quantum of costs which would be absent from a general order,.

5. I have no particular information about the respective financial circumstances of each of the parties except that the husband’s financial circumstances are referred to in his Affidavit in a way which would suggest he is not a man of means.  I do not believe that he is in receipt of legal aid and the wife is not, which appears from her Affidavit.  The husband has arguably, if I were to accept all the evidence of the wife, not assisted in the finalisation of the proceedings which would be a factor I might properly take into account[6] under subsection (c). 

   [6] Family Law Act 1975 (Cth) s 117(2A)(c).

6. I note, however, this is not a matter of agreement and I would not rely upon it for these purposes. However, s 117(2A)(d) of the Family Law Act 1975 (Cth) provides “whether these proceedings were necessitated by a failure on the part of [the husband] to comply with previous orders of the court,” and to the extent that he has not been here to prosecute his proceedings before the Court to the extent that they might validly have been prosecuted, they have not been successful.

7. I also take account of the fact that it is important that after this long history of litigation there should be some certainty, which is a factor I might properly take into account under s 117(2A)(g) of the Family Law Act 1975 (Cth). Accordingly, in my opinion, it is appropriate that I should make an order as to the wife’s costs in relation to this Application in the sum of $6,000 and I make such an order. I note this falls short of the amount that is finally claimed but takes account of the fact that there will be additional costs involved in the sale.

CONCLUSION

1. I make orders accordingly as set out in this Judgment. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  13 November 2009