George and George

[2016] FamCA 529

FAMILY COURT OF AUSTRALIA

GEORGE & GEORGE [2016] FamCA 529

FAMILY LAW – PROPERTY – Enforcement – Where the wife makes applications under the slip rule – Where the wife asserts that the controlled monies account has depleted in accordance with an interim order and an amendment should be made under the slip rule – Where that application is not amenable to change under the slip rule and the wife’s applications under the slip rule are dismissed – Where the husband seeks to enforce orders that the wife return photographs and artworks to him – Where the wife is ordered to return to the husband all albums, negatives and photographs in accordance with the orders - Where the wife seeks the enforcement of an order for the husband to pay half the costs of the renewal of the children’s passports and identification cards - Where the husband is ordered to pay half of the costs for the renewal of the children’s passports and identification cards - Where the wife seeks to be appointed as trustee for the sale of property – Where the husband has demonstrated a lack of willingness to advance the sale of property – Where the wife is ordered to be trustee of the sale of property – Where the wife seeks indemnity costs against the husband – Where the husband seeks costs against the wife – Where both parties assert that the other party has delayed proceedings – Where the matters in s 117(2A) are considered - Where the costs applications for each party are dismissed – Where all other outstanding applications are dismissed – Where orders are made for either party to serve an application in a case and one affidavit setting out any further orders sought.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

O’Rourke v P & B Corporation Pty Ltd [2008] WASC 36
Shaddock (L) & Associates Pty Ltd & Anor v Parramatta City Council (1982) 43 ALR 473

APPLICANT: Mr George

RESPONDENT: Ms George

FILE NUMBER: SYC 7612 of 2011

DATE DELIVERED: 20 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 27 April 2015;
7 October 2015; 15 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr Campton, SC

SOLICITOR FOR THE RESPONDENT: York Family Law

Orders

1. The application for order 6 in the wife’s Amended Response filed 13 April 2015 as it relates to items 7 and 35 on the balance sheet, the controlled monies account and the items described in Exhibit 34, be dismissed.

2. The costs applications of each party is dismissed.

3. Within a further period of 14 days, the wife return to the husband all albums, negatives and photographs that he has provided to her and otherwise the husband’s enforcement application in relation to family photos, certain chattels and other artworks is dismissed.

4. The husband pay to the wife the sum of $2,299.66 pursuant to his obligations under order 10 made 27 November 2013.

5. To give effect to order 5 of the orders made on 27 January 2015, the wife be appointed as trustee for the sale of the property situated at and known as B Street, Suburb M (“the Suburb M property”).

6. It is noted that the solicitor appointed to conduct the sale of the Suburb M property pursuant to order 5.4 of the orders made 27 January 2015 is Ms Anne Goodrick of Atkinson Vinden Lawyers.

7. It is noted that Mr A has set a sale price of the Suburb M property (pursuant to order 5.2 of the orders made 27 January 2015) in the sum of $600,000 but Mr A or his nominee shall advise the wife from time to time as to a fair and reasonable market price and before the wife signs a contract for the sale of the Suburb M property, she will obtain in writing Mr A’s opinion that the proposed sale price is fair and reasonable as at the date of the sale.

8. Subject to this order, I dismiss any other outstanding applications in a case. If either party wishes to press any further application, then they shall, within 28 days, file and serve an application in a case setting out the orders which are sought together with one affidavit setting out only and all the evidence upon which that party seeks to support the orders sought including annexing or exhibiting any document. Neither party should expect that any leave will be granted to tender any document from the bar table.

9. Subject to any other order, each party pay their own costs of all applications determined to date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George 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 SYDNEY

FILE NUMBER: SYC 7612  of 2011

Mr George

Applicant

And

Ms George

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The matters in respect of which I heard argument were:

   1.1.The wife’s application for order 6 in her Amended Response filed 13 April 2015 which is based upon the wife’s assertions that errors were made that can be corrected under the slip rule, in relation to:

   1.1.1.“Household furniture” and “household contents”;

   1.1.2.Depletion of the controlled monies account; and

   1.1.3.List of chattels which the husband is to deliver to the wife and the interpretation of Exhibit 34.

   1.2.The wife’s application that the court enforce order 10 made 27 November 2013 (the wife’s application for the husband to pay half the costs of renewal of the children’s passports and identification cards).

   1.3.The wife’s application that she be appointed trustee for the sale of the Suburb M property.

   1.4.The wife’s application that the husband pay the costs of these proceedings (which application is primarily contained in the application for order 4 of her Amended Response filed 13 April 2015) including events in respect to which costs have been reserved during the proceedings and proceedings subsequent to the making of final property orders.

   1.5.The husband’s application that the wife pay the costs of these proceedings (applications filed 27 February 2013 and 30 March 2015).

   1.6.The husband’s application that the court enforce the following orders:

   1.6.1.Order 13 of 27 January 2015 (relating to the husband’s assertion that the wife has failed to redeliver photographs to him); and

   1.6.2.Order 2.2.2.7 of 27 January 2015 (the husband’s assertion that the wife failed to deliver artworks to the husband). 

THE WIFE’S SLIP RULE APPLICATIONS PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES

1. In Shaddock (L) & Associates Pty Ltd & Anor v Parramatta City Council (1982) 43 ALR 473 Mason ACJ, Wilson and Deane JJ said at 475 that the slip rule:

   … reflects the inherent jurisdiction of a court “at any time to correct an error in a decree or order arising from a slip or accidental omission” … In terms, the rule provides, inter alia that “an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the court or a justice on motion or summons”. The rule extends to authorize an omission resulting from the inadvertence of a party's legal representative…

2. The note to rule 17.02(5) of the Family Law Rules 2004, at the time of the hearing, provides that “An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.”

3. The wife made an application that order 2.1.3 and order 10 of 27 January 2015 be amended under the slip rule.

Double counting of “household furniture” and “household contents”

1. The wife had originally asserted that there had been a slip in the Reasons for Judgment dated 27 January 2015 arising from a double counting of household contents (item 7) and household furniture (item 35) on the balance sheet. During the hearing on 27 April 2015, counsel for the wife’s attention was drawn to three different exhibits (Exhibit 13 (27 January 2013); Exhibit 40 (14 January 2014) and Exhibit 41 (15 January 2014)) that the wife had tendered at different times during the hearing which had upon them at individual item numbers “household furniture” and separately “household contents”. Given the contents of those three exhibits, counsel for the wife withdrew the assertion that a mistake had been made that was amenable to correction under the slip rule. Accordingly, the wife’s application so far as it related to items 7 and 35 on the balance sheet was withdrawn and was dismissed.

Depletion of the controlled monies account

1. At the date of the hearing, the controlled monies account in item 6 on the balance sheet had a value, agreed by the parties, of $248,967. The wife now asserts that the controlled monies account has been depleted in accordance with the provisions of an interim order, by the payment of the children’s education expenses and mortgage repayments on C Street, Town S (“the Town S property”) in the period that the judgment was reserved. In the time between the conclusion of the final hearing and delivery of the Reasons for Judgment, the wife says that the controlled monies account had decreased by $56,388.42.

2. The wife contends that in order to give effect to the final orders which provide for her to receive 47.5 per cent of the property pool, the cash payable by the husband in order 2.1.3 needs to be increased to account for the change in the value of the controlled monies account. She seeks the order be changed so that the husband is required to pay her an additional amount of $26,784.50.

3. On 1 June 2012 Justice Le Poer Trench made the following order:

   1. The parties do all things necessary to cause the following sums to be paid from the controlled monies account holding the balance of the funds from the sale of the Hong Kong property:

   …

   (d) Pending further order, the payment of each of the children’s school fees, cost of school uniforms, cost of school sports uniforms, cost of school books, cost of [L’s] excursion to [South Asia] in September 2012, all those payments to be characterised by the trial judge at the conclusion of the property proceedings.

4. On 27 February 2013 interim orders were made as follows:  

   7.  Pending further order that the monthly repayment to Commonwealth Bank for the Town S property mortgage be paid month by month when due from the controlled monies account and to the extent necessary (if any) the order of Justice Le Poer Trench dated 1 June 2012 be varied accordingly. I note that the monies taken from the controlled monies account for this purpose will be provisionally counted on the balance sheet against the husband as monies taken by him but that the treatment of those monies will be the subject of further consideration at the final hearing.

5. As at the date of the hearing, any issue as to who bore the responsibility for these payments was resolved by the determination at [111] of the Reasons for Judgment. The payments from the controlled monies account were not counted against the husband on the balance sheet.

6. The wife’s submission is that there was no allowance for the continuing effect of the interim order and no determination as to how that effect should be categorised. No mention was made of the issue during final submissions. There was no submission at the hearing that the agreed amount in item 6 on the balance sheet should be reduced on a pro-rata basis depending upon how many weeks the judgment took to deliver. There was no application to reopen the case prior to the delivery of judgment and particularly after notice was given of the date of delivery of judgment by email on 22 January 2015. If an error has been made, it is a matter for appeal. It is not amenable to change under the slip rule.

Chattels

1. The wife submits that order 10 made 27 January 2015 should be amended under the slip rule because it does not reflect a correct list of items which should be returned to the wife by the husband.

2. At [219]-[221] of the Reasons for Judgment, the distribution of various chattels and furniture was discussed.

   Chattels and furniture

   219. Exhibit 34 is a document which has been marked by the husband responding to an order that the wife seeks relating to chattels and furniture. The markings on that document indicate the items that the husband believes he has in his possession which he is prepared to provide to the wife. There was a proposal that counsel would provide a further document, explaining in more detail what the markings on Exhibit 34 meant. So far as I am aware, no further document was provided.

   220. Doing the best I can, based on the concessions made by the husband in Exhibit 34, I am prepared to make an order that the wife receive those items that the husband has conceded to her.

   221. Otherwise, chattels will remain the property of the person [in] whose possession they currently are.

3. The undertaking by counsel to provide a further document was given during final submissions. The relevant part of the transcript is as follows:

4. The discussion about Exhibit 34 during final submission was as follows:

   HIS HONOUR: I’ve got a list.

   MR BATEY: You’ve got the lists.

   HIS HONOUR: It’s exhibit 34.

   MR BATEY: Right. And all I would ask is in those items where the husband says they’re not there, well, there could be an order which – in the event that these items are in existence at either property, and the husband is not seeking that they be his alone, then the wife should be entitled to them. Because the wife is not in a position to check either the [Suburb F] house or the [Town S] property.

   HIS HONOUR: Well, it’s almost certain I’m going to – if I attempt to interpret exhibit 34, I’m going to get it wrong. What I intend to do is make a direction that ---

   MR BATEY: Be sorted out.

   HIS HONOUR: --- exhibit 34 get converted into some type of communication to me as to what it means in terms of what ---

   MR RICHARDS: ---

   HIS HONOUR: --- concession is made by the husband as to what the wife can – sorry, what the wife can have. Yes.

   MR BATEY: Well, your Honour, can’t ---

   MR RICHARDS: I’m sure we can do that, your Honour. We will compare a list, send it to them and ---

   HIS HONOUR: All right. Well that ---

   MR RICHARDS: That we think flows from this document.

   HIS HONOUR: If that can be done forthwith, please.

   MR RICHARDS: We will do that.

   MR BATEY: I think it took us five days to get the joint balance sheets. So I’m sure we won’t have any difficulty with the furniture.

   HIS HONOUR: No, no all I’m – I’m not asking you to reach an agreement about anything, except as to what exhibit 34 says. And if there’s any controversy about what it says just note the controversy.

   MR BATEY: Thank you.

   MR RICHARDS: Yes. Along with – what it says along with his oral evidence.

   HIS HONOUR: Along with the oral evidence, yes.

   MR RICHARDS: Yes, your Honour.

5. As the judgment records, no further document was provided.

6. There is no support contained in the Reasons for Judgment for any submission that order 10 made 27 January 2015 is amenable to the slip rule.

7. If any error was made, it is a matter for consideration on appeal but given the total failure by both counsel to provide the promised document, it is difficult to understand how any complaint by the wife can be maintained.

THE PARTIES’ COMPETING APPLICATIONS FOR COSTS

1. The husband seeks costs against the wife for costs incurred by him for participating in the proceedings. The husband submits that the actions undertaken by the wife during the proceedings were “additional, unnecessary and significantly injurious to both [the husband] and the joint capital/asset pool”. 

2. The wife opposes the husband’s application for costs and seeks indemnity costs against the husband for a substantial part of the legal costs she has incurred in relation to the substantive proceedings. The wife also seeks an indemnity costs order against the husband for what has happened in the proceedings since the final property settlement order was made.

3. The wife has filed lengthy written submissions in respect of costs and has separated those submissions into costs incurred up until the date of the final orders being made and costs incurred since. I intend to deal with all costs applications in a holistic manner.

4. The wife submits that the costs incurred by the parties during the proceedings were by reason of the husband’s conduct, namely his failure to comply with court directions, failure to make financial disclosure and failure to make genuine offers of settlement.

5. Martin CJ in O’Rourke v P & B Corporation Pty Ltd [2008] WASC 36 said:

   5.  Disputes of this kind relating to costs of the parties to a trial are sometimes described in other jurisdictions as ‘satellite litigation’. I must confess to a preference for the rather more pejorative description of disputes of this kind as ‘parasitic litigation’. I use that term because litigation of this kind in relation to costs has the distinct tendency to sap the energy of the parties and their legal advisers and the court, and to distract legal advisers and the court from getting on with the other more important issues including the resolution of substantive disputes.

   6. I think it is important that a robust approach be taken to the resolution of costs issues of this kind and that the practice of making elaborate and detailed submissions with respect to costs, supported by elaborate and detailed evidence and oral argument, should be actively discouraged by the court. With that in mind, the reasons that I will give in relation to these applications will be brief.

6. In applying the law in relation to costs I have to take into account the matters set out in s 117 of the Family Law Act 1975 (Cth) (“the Act”). The starting point is that each party bears their own costs. However, the court, if it considers it just, may make an order as to costs if it is of the opinion that there are circumstances to justify doing so (s 117(2)). In considering whether or not a costs order should be made, the court shall have regard to the matters set out in s 117(2A).

(a)  the financial circumstances of each of the parties to the proceedings;

1. The wife is employed as an independent contractor. Her net weekly income is approximately $830 per week. The wife also receives $507.41 by way of periodic child support, however the husband is in arrears of child support in the sum of $22,413.61.

2. The final orders require the wife to pay 25 per cent of the children’s educational, medical and mobile phone expenses.

3. The wife asserts that her total weekly expenditure is in the sum of approximately $2,030. She thus has a shortfall in expenditure of approximately $1,200. To meet that shortfall, the wife contends that she has borrowed money from family and friends and has received advanced payments in respect of salary.

4. At the time of the final hearing the husband was employed in a senior executive role and was earning $218,764 per annum. He has since become unemployed and says he is looking for work.

(b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

1. Neither party is in receipt of legal aid.

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;  (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

1. The wife submitted that the husband’s conduct throughout the course of the litigation from its commencement until the conclusion of the trial and also following the trial, was a very significant factor in the extension of the litigation.

2. The wife firstly points to the fact that she needed to bring an urgent application because the husband cancelled her credit cards in July 2011. The application was not brought for about six months and was settled by consent on the first return date.

1. The wife next points to what she says was the husband’s obstructive conduct in relation to the obtaining of the valuation of the W Companies (which are more specifically set out in the Reasons for Judgment). During the course of the proceedings, the wife was the subject of a costs order in favour of the W Companies when the W Companies successfully challenged the width of a subpoena that the wife had issued.

2. As part of the final orders, I apportioned 75 per cent of the costs that the wife was ordered to pay to the husband for reasons set out at [249] to [252] of the Reasons for Judgment. It follows that any costs that the wife was to put in relation to attempting to value the W Companies was to some extent contributed to by the conduct of the husband. The wife however has not sort to quantify what her additional costs might be and as I said at [251] of the Reasons, “....the breadth of the subpoenas issued by the wife and the wife’s pursuit of information beyond what the single expert indicated was absolutely necessary to provide the valuation upon which the parties ultimately relied” meant that the wife shared some of the responsibility for the costs associated with obtaining the valuation of the W Companies.

3. The wife further relies upon evidence that she filed in the Full Court to support the proposition that she incurred costs as a result of the husband being difficult about granting access to the Town S property for valuation and for not cooperating in the release of monies from the controlled monies account. Again the wife has not quantified what she says her increased legal costs were because of the husband’s alleged behaviour. Furthermore, the evidence that the wife filed in the appeal was not the subject of testing before me.

4. The wife next points to the husband’s failure to file evidence for the trial as directed. On 26 November 2012 the matter was expedited for final hearing to commence on 24 June 2013. On 27 February 2013 I vacated the final hearing dates as the valuation for the Town S property and the W Companies had not been completed. The parties were allocated a final hearing date commencing 5 August 2013. When the matter came before me again for a compliance check on 6 May 2013, the husband had not filed his evidence and was not ready to do so. The final hearing dates were again vacated. Directions were made on 2 August 2013 for the husband to file and serve all evidence by 2 September 2013 but as at 3 September 2013 the husband had not filed any evidence as directed. The solicitors for the wife were served with an affidavit from the husband on the first day of the final hearing on 25 November 2013. I comfortably accept that the husband’s lack of engagement in the proceedings from time to time increased the wife’s costs to some degree.

5. The wife points to the fact that the husband’s legal team were given some time during the trial to review material that they could have otherwise reviewed prior to the hearing. The wife asserts that the trial went two days longer than it should have otherwise taken as a result of the husband’s lack of preparation for the hearing. As an example of the lack of preparation, the wife’s written submissions refer to what I discussed at [66] and [67] of the Reasons. I am unable to find however that it was solely the behaviour of the husband that caused the lengthening of the trial.

6. The wife refers to the inadequacy of the husband’s evidence in relation to his tax liability. At [132] of the Reasons, I indicated that given that I was uncertain about the quantum of the tax, I was unable to take it into account other than when dealing with s 79(4)(d)-(g) matters, but I did take it into account as a relevant consideration.

7. The wife made submissions in relation to what she asserted was inappropriate conduct by the husband in relation to the division of chattels. I have, at [219] of the Reasons, made comment about the failure by counsel on both sides to provide a document about chattels which they had jointly promised the court.

8. Finally, in relation to the substantive proceedings, the wife points to alleged conduct by the husband in relation to offers of settlement in relation to the parenting matters. I am unable to place any weight on those submissions.

9. The wife also points to the history of the proceedings since the final property settlement order was made including the husband’s application for extension of time in respect of the transfer of the matrimonial home and the wife’s application under s 106A for documents to be executed by the Registrar of the court.

10. The husband asserts that the wife did certain actions to delay the discovery of relevant material. The father gives the following examples:

    41.1.The wife claimed that a signature on an agreement between the parties was not her signature (when the husband asserts it was);

    41.2.The wife destroyed or dumped the family computer holding relevant financial records;

    41.3.The wife’s lawyers required the husband to sign multiple authorities for letters sent to a broad range of banks internationally. The husband heard no feedback about this and knew it would lead to no result whatsoever. I accept this was an example of bad fishing; and

    41.4.The wife asserted that she had not been given photo albums in accordance with the orders when she in fact had.

11. The wife’s solicitors filed an application on 30 September 2015 seeking an order that for the purposes of order 3.1 (of the orders of 27 January 2015) the amount required to fulfil the husband’s obligation to revert T Street, Suburb F (“the Suburb F property”) back to “good order and condition” was in the sum of $61,052.42. The words used in order 3.1 were that when he left the Suburb F property, the husband “leave the same in good order and condition including ensuring that all taps, cisterns, ovens, stoves, lights, dishwasher, curtain, blinds, fixtures and fittings were in good order and condition”. The solicitor for the wife interpreted that to mean an order that the husband bring the Suburb F property up to a condition that would allow it to be rented. The wife’s solicitors obtained quotes from builders and asked for an order that the husband pay the amount. I find that application to be totally mischievous and inappropriate litigation. This feeds into the general concept that the wife’s lawyer, who charged about $550,000 for this litigation, has been involved in legal work which was not necessary or justified.

12. In those circumstances, I am quite hesitant in making an order that the husband pay costs in the context of or solely because the wife asserts that the husband was responsible for conducting the litigation in a way that ran up costs.

13. When discussing s 79(4)(d)-(g) matters in the Reasons for Judgment I made the following observations:

    [202] ... It is more than unfortunate that the parties between them have spent approximately $1 million (the husband has spent $537,000 and the wife has spent $480,000) on legal fees. The husband on occasions disengaged in the litigation and refused to react to requests that were made by the wife’s lawyers. The wife presented to the court a copious amount of written material. I indicated at the outset of the hearing that I was not going to take into account any material that the wife had filed by way of annexures or exhibits unless I was specifically taken to that material during the course of hearing the evidence or submissions. The result was a large amount of the material that the wife has filed was not something to which I had any regard.

14. It follows that I have already taken into account, to a large extent, when making the property settlement order, my view of the conduct of the parties to the litigation.

15. In relation to the proceedings that have happened since the final property settlement order was made, the wife points to an offer of settlement made by her on 1 April 2015. That offer however differs from the orders that were made on the following day in terms of the amount of equity that needs to remain in the Suburb F property. It is consequently not an offer upon which I can place weight in considering costs in respect of the application made by the husband after the final property order.

(e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings; 

1. Neither party was wholly unsuccessful in respect of the substantive proceedings. Neither party has been wholly successful in subsequent applications. 

(f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

1. The result in this matter was to divide the assets 52.5/47.5 per cent in the husband’s favour. Parenting orders were made by consent on the first day of the final hearing.

2. In her Initiating Application for final orders filed on 15 December 2011 the wife sought a division of the property pool so that the wife would receive 70 per cent of the pool including superannuation and the husband receive 30 per cent.

3. At hearing the wife sought a 50/50 division of assets based upon contribution and a 5-10 per cent adjustment for s 79(4)(d)-(g) matters. That is an adjustment overall of 55 to 60 per cent in her favour.

4. The wife contends that during the course of the proceedings the husband made offers for settlement which provided that the wife receive significantly less than what she was ultimately awarded.

5. The wife sets out in her affidavit filed 27 March 2015 the various offers made by the husband:

   52.1.In July 2012 the husband offered the wife 30 per cent of the property pool.

   52.2.On 31 July 2012 the husband made an offer that he retain the former matrimonial home, the Town S property, the parties W Companies shares and that the husband pay 66 per cent of the children’s expenses. The wife was to receive the Suburb M property and the controlled monies account. The husband asserts in the offer that this constituted about 55.6 percent of the total asset pool. In her case outline, the wife asserts this offer represented less than 40 per cent of the pool.

   52.3.On 13 January 2014 the husband made an offer of settlement which provided for the wife to receive 45 per cent of the property pool. This is still short of what the wife was ultimately awarded.

6. The wife submits that the offers of settlement made by the husband were unreasonable and incapable of acceptance. It is also submitted that whilst the husband’s offers for settlement were made on the basis of a percentage division, they did not deal with the property pool the court ultimately found to exist.

7. Ultimately, however, the wife’s formal position in her applications to the court from time to time were significantly greater than the result that she ultimately achieved. The wife does not point to an offer which she made which would lead to a finding that the husband had unreasonably rejected it.

8. I am not satisfied that the husband inappropriately responded to offers made by the wife in respect of parenting proceedings which were concluded by the making of consent orders.

(g)  such other matters as the court considers relevant

1. No submission is made as to any other relevant consideration.

Conclusion about costs

1. There is no doubt that the husband as discussed in the reasons has been tardy in the way that he conducted the proceedings and although he makes criticism about the wife’s behaviour from time to time and her lack of good faith in terms of keeping original agreements that were entered into, there is no basis upon which a costs order should be made in the husband’s favour against the wife. Similarly, however, the husband can point to the copious amount of written material produced by the wife. Taking everything into account, I am unable to find that it would be just to depart from s 117(1) of the Act.

THE HUSBAND’S ENFORCEMENT APPLICATION

Order 13 made 27 January 2015

1. The husband makes an application for enforcement of order 13 made 27 January 2015 to the following effect:

   58.1  The wife return to the husband all photo albums and photos (order 13 made 27 January 2015);

   58.2  The wife agree to the set of items identified by the husband in relation to order 9, 10 and 11 and will be provided by the husband to the wife;

2. The husband says that he has had significant challenges in progressing the implementation of orders 9,10,11,13 and 2.2.2.7 relating to family photos, certain chattels and other items, and artwork taken by the wife.

3. The wife says that on 11 February 2015 the husband delivered some photographs to her in accordance with order 12 of the final orders made 27 January 2015. She says there are still many photographs and albums which the husband is to provide and that he has not provided any photographs in accordance with order 13. In her affidavit filed 13 April 2015 the wife says that she has not complied with order 13 in respect of the photographs as the husband himself has not fully complied with that order.

4. The husband said from the bar table that on 11 February 2015 he delivered the photos to the wife. He said that it took him some time to find the albums, remove photos of himself, and then compile albums to deliver to the wife. The husband took his two youngest children with him to the wife’s home. The two children carried the albums inside the wife’s residence. The father took photographs of the albums he delivered, which he tendered at the hearing (Exhibit 55).  The husband then told me from the bar table that after hearing what the wife’s counsel said on 27 April 2015 (that the wife had not received the photos) he was shocked and sent a text to his son to confirm delivery of the photos. The father said he delivered about 27 albums. He has photographs of the album covers.

5. The wife concedes that on 11 February 2015 the husband delivered to her some albums. She asserts that there are still many photographs and albums which he is yet to deliver.

6. I am not able, on the evidence that I have, to determine the wife’s assertion that the husband failed to deliver all family photo albums and negatives and all photos that he has of the children and the wife.  

7. Order 13 made 27 January 2015 however, required the wife after 14 days to return whatever the husband delivered to her to the husband. She should do so and I will make an order accordingly.

Order 2.2.2.7 made 27 January 2015

1. Order 2.2.2.7 made 27 January 2015 was in the following terms:

   1.    Contemporaneously with the husband’s compliance with paragraph 2.1, the wife do all acts and things and sign all documents to:

   2.2.2 transfer to the husband all of her right, title and interest in:

   ...

   2.2.2.7Artworks;

2. The husband seeks an order to the effect that:

   The wife return to the husband:

   i.One painting of London;

   ii.One painting of San Francisco;

   iii.Two Afghan or Pakistani full size carpets; and

   iv.Two Chinese full size silk carpets.

3. The husband asserts that the wife has not returned to him the painting of London, the painting of San Francisco and the four carpets. The husband submits that the carpets should be deemed “artworks” because they are not rugs you would walk on and were purchased overseas at special markets. He says the two carpets bought in China were purchased to keep like artworks. He says they are very valuable items. The husband also submitted that the paintings to which this application relates cannot be in his possession at the date of the hearing because there are vacant spaces on the walls of the former matrimonial home where they once hung.

4. The wife asserts that the artworks referred to by the husband are in his possession and concedes right, title and interest in these artworks. She asserts that carpets are not artworks and do not fall within order 2.2.2.7.

5. Again I think that in relation to the paintings, this is a matter for contravention proceedings rather than enforcement proceedings. On the state of the evidence, it would be unlikely that the husband could be successful in relation to charging the wife for failing to return the paintings.

6. It is not sufficiently obvious that the rugs/carpets are artworks for the husband to maintain that the wife is required to deliver those items to the husband.

THE WIFE’S APPLICATION FOR AN ENFORCEMENT ORDER

Order 10 made 27 November 2013

1. Order 10 made 27 November was in the following terms:

   10.  Six months prior to the expiration of any of the children’s Australian or UK passports or Hong Kong Identification Cards the parties shall do all acts and things and sign all necessary documents in order to apply for a new passport/identification card for said child or children, the cost of said passports or identification cards shall be borne equally between the parents, and within 7 days of the receipt of the new passport or identification card the parent shall ensure they are lodge with the Registry of the Family Court of Australia.

2. The wife filed an Application in a Case on 13 April 2015 seeking a declaration that pursuant to order 10 made 27 November 2013 the husband’s share of the costs associated with the renewal of the children’s Australian passports and Hong Kong identification cards is $2,299.66 and that that payment be made to the wife within seven days from the date of orders made.  The wife met the total expense of $488 to have the children’s Australian passports renewed. Pursuant to order 10 the husband is to meet 50 per cent of those costs. The wife also met the total expense of $4,111.32 for the children to travel to Hong Kong and have their Identification Cards renewed. The wife says the husband must also meet 50 per cent of that cost.

3. In her affidavit filed 13 April 2015 the wife says she arranged and paid for the children’s new Australian passports and Hong Kong identification cards. The wife and children travelled to Hong Kong in January 2015 in order to renew the identity cards. She has retained the passports since this time as she is awaiting the identification cards before she returns the documents to the court. The wife details the issues she had with the husband during the process of renewing the passports.

4. The husband contends that the wife contravened the parenting orders by failing to give him and the court 28 days notice of her intention to travel with the children overseas. She also failed to provide him with her contact details and itinerary. The husband said he has no problem paying half the passport costs if the wife can show the receipt. The husband however asserts that he did not know the passports were about to expire.  Leave was given on 27 April 2014 for the husband to provide an affidavit in relation to this issue but he has failed to do.

5. I am satisfied that the children needed to travel to Hong Kong to have their identification cards renewed and the costs of that travel was a necessary expenditure to achieve that purpose. The husband should pay one half of those costs.

6. Consequently the husband should pay to the wife the sum of $2,299.66 ($4,111.32 + 488/2).

WIFE’S APPLICATION TO BE APPOINTED AS TRUSTEE FOR THE SALE OF THE SUBURB M PROPERTY

1. The husband moved out of the Suburb F property on about 3 June 2015.

2. The husband has failed to comply with the following orders made 27 January 2015:

   78.1.The husband has not discharged the mortgage to the CBA secured over the Town S property (2.1.2).

   78.2.The husband has not paid the wife the sum of $115,455 (2.1.3).

   78.3.The husband did not pay to the CBA the excess of the sum of $416,363 in respect of the mortgage secured over the Suburb F property (2.1.4).

   78.4.The husband has not paid 75 per cent of the costs payable to the W Companies (20).

3. I was given information from the bar table that the husband attempted to lease the Suburb M property in June 2015, following repair works on the property. The husband said he undertook the renovations in order to prepare the property for sale, but then decided he would try and rent it. The husband says he was unable to rent the property because the wife had notified the real estate agents that she was having the property sold.

1. The wife says at [34] of her affidavit filed 21 July 2015 that on 15 May 2015 she found a listing online advertising the Suburb M property for rent. That advertisement continued to be listed on 10 June 2015. On 10 June 2015 the wife sent an email to the real estate agent with the listing, and advised them of the Final Orders made 27 January 2015. On 18 June 2015 the wife’s solicitor spoke with the real estate agent and was informed that the listing had been removed after becoming aware of the legal issues involved relating to the property.

2. The husband was given an extension of time to 4 June 2015 to comply with orders 2.1.2, 2.1.3 and 2.1.4. The husband was unable to obtain finance by that date, so by 4 June 2015 the husband ought to have listed the property for sale. The property has been vacant since about March 2015.

3. Order 5 of the orders made 27 January 2015 provided that the husband, if he did not comply with orders 2.1.2, 2.1.3, and 2.1.4, list the Suburb M property for sale. The husband does not provide any evidence by way of him attempting to arrange for a sale of the property and I find the husband has failed to do this. The wife now seeks to be made trustee for the sale of the Suburb M property.

4. The wife has taken steps to have a solicitor and agent appointed and to have the reserve/listing price determined.

5. On 26 June 2015 the wife instructed her lawyer to write to the husband nominating an agent and a solicitor to have the conduct of the sale of the Suburb M property. By 30 June 2015 the husband had not responded to that correspondence. On that day, the wife instructed her solicitors to write to the Real Estate Institute (requesting they appoint an agent), the Law Society of NSW (requesting they appoint a solicitor) and Mr A (requesting he nominate a fair market value).

6. On 4 August 2015 the wife paid to the Law Society of NSW the sum of $330 (the administration fee for the appointment of a solicitor). Ms Anne Goodrick of Atkinson Vinden Lawyers has been appointed (in accordance with 5.4) to conduct the sale of the property.

7. On 19 August 2015 Ms Goodrick sent to the husband her Client Service Agreement and Cost Disclosure documents and requested a payment from him in the sum of $2,000. The husband has not returned that Cost Agreement or paid her retainer.

8. Mr A of A Valuers provided a valuation of the Suburb M property. The husband has not met Mr A’s costs in relation to that valuation. Mr A has valued the property at $600,000. The wife says that although the current market appraisal of the property is $170,000 more than what the Suburb M property was valued at the hearing, she believes there will still be a shortfall on the settlement of the sale once the mortgage secured over the Town S property is discharged. The wife believes that she may need to make an application for the Town S property to be sold.

9. The wife seeks that she be appointed trustee for the sale of the Suburb M property for the following reasons:

   88.1.Notwithstanding the orders for the transfer and refinance of the Suburb F property, the husband failed to arrange the discharge of the mortgage and did not execute the transfer. The wife had to make an application to the court for a Registrar to sign those documents.

   88.2.The husband did not take steps to list the Suburb M property for sale.

   88.3.The husband did not respond to the correspondence from the wife’s solicitors in relation to the sale of the Suburb M property.

   88.4.The husband listed the Suburb M property for rent at a point at which it should have been listed for sale.

   88.5.The wife believes the husband will delay compliance.

10. The husband has failed to agree or cooperate in the appointment of a solicitor and real estate agent. I have little confidence that the parties would be able to reach agreement about issues in respect of implementing the order for the sale of Suburb M.

11. I find that given the dysfunctional and toxic nature of the relationship between the husband and wife, there is little likelihood that the parties would be able to agree on any of the issues in respect of which agreements need to be reached for the sale of the Suburb M property. It is highly likely that that lack of agreement will get in the way of efficient and effective selling processes.

12. The husband has demonstrated a lack of willingness to advance the sale. His current state of mind is also one that perceives grave injustice has been perpetrated upon him and in my view he has very little interest in getting on with the sale of Suburb M. In those circumstances, I will appoint the wife as trustee for sale. The selling agent will be the agency appointed by the Real Estate Institute. Ms Goodrick will continue to act as the solicitor. There will be a condition imposed that the listing price be as advised from time to time by Mr A, and Mr A will be responsible for signing off on that sale price.

OTHER OUTSTANDING APPLICATIONS

1. Given the history of this matter and also given that neither party has been wholly unsuccessful, I intend, subject to any existing order, to make an order that each party pay their own costs for all applications determined to date. I do this with the intent of limiting further satellite litigation in relation to costs.

2. There was disagreement at the end of submissions as to what other applications in the case, filed by either the husband or the wife since the delivery of the final s 79 order, might still be outstanding. Senior counsel for the wife indicated that there may still be outstanding applications in relation to the enforcement of child support, the sale of the Town S property and the enforcement of a costs order previously made. The husband pointed to applications for orders where he was seeking compensation for lost income and money removed by the wife from accounts.

3. The time I had on the day did not allow me to attempt to unravel all these loose ends and it will be far more efficient if I simply dismiss all applications that are outstanding subject to an order that any remaining issue that either party wishes to agitate, which has not already been determined, can be put into one new consolidated application in a case with a provision that only one new affidavit be filed setting out only and all the evidence upon which the parties seeking additional orders wishes to rely. Accordingly, I intend to direct that within 28 days each party file and serve a further amended application in a case setting out precisely any additional orders that they seek and that that amended application is to be filed with one affidavit which sets out all the evidence (including annexing or exhibiting all documentary evidence) upon which the party relies for the orders sought.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 May 2016

Associate: 

Date:  20.5.16