Gently and Gently

[2014] FamCA 1041

FAMILY COURT OF AUSTRALIA

GENTLY & GENTLY [2014] FamCA 1041

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Gently

RESPONDENT: Ms Gently

FILE NUMBER: MLC 6449 of 2014

DATE DELIVERED: 2 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swann

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Cash

SOLICITOR FOR THE RESPONDENT: Currie Law

Orders

1. That the hearing before Registrar Sikiotis on 7 November 3014 is vacated (and to the extent that the matter is listed also for 6 November 2014, that date is removed).

2. That the parties attend a conciliation conference with a registrar and make a bona fide endeavour to resolve matters at 11.00am on 10 December 2014.

BY CONSENT:

1. That until further order, the wife be restrained from:

   3.1selling, placing on the market for sale or otherwise attempting to dispose of or diminish the value of any and/or all matrimonial property whether held in her name solely, in the husband's sole name or in the joint names of the parties;

   3.2removing, selling or otherwise disposing of any of the contents of the following:-

   3.2.1the real property known as and situate at B Street, Suburb C ("the Suburb C property");

   3.2.2the real property known as and situate at D Street, E Town ("the E Town property"); or

   3.2.3the real property known as and situate at F Street, G Town ("the G Town property").

   3.3Attending at, or attempting to attend upon the real property known as and situate at F Street, G Town.

2. That the wife forthwith provide to the husband's solicitors documents and/or a statement to evidence the following:-

   4.1The date upon which the wife removed the husband's German prestige motor vehicle registration number NVI 966 ("the Prestige car") from the possession of the husband;

   4.2The date upon which the wife sold the Prestige car;

   4.3Full particulars of the identity of the purchaser of the Prestige car;

   4.4Documentation evidencing the legal transfer of the Prestige car including but not limited to full particulars of the consideration paid and a copy of the transfer of ownership form;

   4.5Bank statement(s) confirming the receipt of funds upon the transfer of the Prestige car;

   4.6The date upon which the wife removed cattle and horses from the possession of the husband;

   4.7Bank statements confirming the receipt of funds upon the sale of the cattle and/or horses;

   4.8The date upon which the wife removed the motorcycle from the possession of the husband;

   4.9Full particulars of the whereabouts of the motorcycle and, if sold, full particulars of the consideration paid and a copy of the transfer of ownership form as well as bank statements confirming the receipt of funds upon its sale;

   4.10The date upon which the wife removed the painting by a well known artist from the former matrimonial home;

   4.11Full particulars of any and all further property which the wife has removed from the possession of the husband.

BY THE COURT

1. That the husband has liberty to apply to the Honourable Justice Cronin for enforcement and/or clarification of the wife’s responses in respect of paragraph 4.

2. Notwithstanding the restrictions in Rule 13.26(1) of the Family Law Rules 2004, the husband has liberty to serve upon the wife (through the parties’ respective solicitors) specific questions relating to the matters in paragraph 4.

3. That the case be placed in the pool of cases awaiting allocation of a trial to a judge as and from this date.

4. That the wife pay the husband’s costs fixed in the sum of $3000 within one month.

5. That the reasons this day be transcribed.

6. That otherwise, the applications of the husband filed 25 September and 29 September 2014 respectively and the response thereto by the wife of 30 September 2014 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gently & Gently 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 MELBOURNE

FILE NUMBER: MLC 6449 of 2014

Mr Gently

Applicant

And

Ms Gently

Respondent

REASONS FOR JUDGMENT

1. Orders have now been agreed.  The nub of this case is that those orders should have happened anyway.  This case should never have been brought before the Court except for one fact.  The husband was concerned to prevent the disposal of assets.  There are substantial assets and what seems to have brought the matter before the Court might be seen to be a “drop in the bucket”.  The husband was seeking simply that the wife not do what she indeed appears to have done without his knowledge.

2. I have heard statements about a car that the wife disposed of actually belonged to the husband.  That might in future give rise to a very interesting argument about whether the purchaser got what he bargained for.  If indeed property has passed and it belonged to the husband, no doubt the title will be an issue.  The wife might have to bear the responsibility for that. 

3. An application for costs is put on the basis that this proceeding was only necessitated because of the wife’s failure to provide an undertaking which was sought.  I have concluded that had that undertaking been given, then these proceedings would not have been necessitated.

4. The husband’s position is that the wife refused or failed to provide the undertaking and that precipitated the application being filed.  The wife filed responding material but that does not take the matter much further because, as I began the case, there were certainly disputes over a number of matters which would have had to have come back again at more expense to the parties. 

5. Section 117 of the Family Law Act 1975 (Cth) provides that in proceedings in this Court, each party shall bear their own costs unless there are circumstances that justify departure from that principle.

6. If the Court considers there is such a justifying circumstance, it must take into account the matters set out in s 117(2A) of the Act. I cannot think of a more simple situation in which a justifying circumstance can be observed that when someone says please give me an undertaking that you will not dispose of something and the other person either refuses or fails to respond. The wife disposed of a motor vehicle and has given what I think is a very unusual explanation as to why and where the money went.

7. Unilateral action in family law proceedings is frowned upon. It seems to me that that is a justifiable circumstance here. Section 117(2A) includes such matters as the financial circumstances of the parties, their compliance with orders, legal aid considerations and whether there is any other relevant issues. In this case, there is no doubt that the financial circumstances of the parties are affluent. Anyone who has over a million dollars must be seen, in this day and age, to be reasonably comfortable.

8. For the wife, therefore, to be saying that she needed to sell something is rather odd but, in any event, it seems to me that I do not need to be troubled about the financial circumstances.  There are no legal aid considerations as I understand it and they certainly have not been suggested.  There is the question of non-compliance with court orders.  This is not necessarily a non-compliance with a court order but, rather, a unilateral action and as I indicated, that is frowned upon.  It seems to me that this is a case where an order for costs should be made.

ORDERS DELIVERED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 October 2014.

Associate: 

Date:  14 November 2014