GEORGE & STANTON

[2013] FamCA 614

FAMILY COURT OF AUSTRALIA

GEORGE & STANTON [2013] FamCA 614

FAMILY LAW – JURISDICTION – De facto relationship – Property settlement – Where there was no breakdown of the relationship – Where the Court does not have jurisdiction under the Family Law Act 1975 (Cth) –
FAMILY LAW – COSTS – Circumstances justifying order – Where the application was wholly unsuccessful – Conduct of the parties – Where costs are ordered.

Family Law Act 1975 (Cth) s4(1), s31(1)(aa), s90SM(8), s102(a), s117(2A).
Family Law Rules 2004 (Cth) r10.12(a), r19.18(1)(a).
Births, Deaths and Marriages Registration Act 1995 (NSW).
Succession Act 1981 (Qld) s5AA(2)(b), s41.

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248.
D & D (Costs) (No 2) (2010) FLC 93-435.
Donaghey & Donaghey (Costs) (2012) 47 Fam LR 306.
Kohan & Kohan (1993) FLC 92-340.
Latoudis v Casey (1990) 170 CLR 534.
Limousin & Limousin(Costs)(2008) 38 Fam LR 478.

APPLICANT: Ms George

RESPONDENT: Mr E Stanton

FILE NUMBER: BRC 2673 of 2012

DATE DELIVERED: 23 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 5 August 2013

REPRESENTATION:

COUNSEL FOR THE APPLICANT: Mr Hanlon

SOLICITOR FOR THE APPLICANT: Rosen Lawyers

COUNSEL FOR THE RESPONDENT: Mr Burridge

SOLICITOR FOR THE RESPONDENT: Sorensen & Brown

Orders

1. The Application filed on 30 March 2012 is dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the Application filed on 30 March 2012 on an indemnity basis in an amount agreed or as assessed.

3. For the purpose of clause 2, within 14 days of today the Respondent shall file and serve an affidavit deposing to the precise sums payable to the legal advisors in respect of the Application filed 30 March 2012 and shall annex to the same, a copy of all fee notes or invoices pertaining to any costs and disbursements.

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

FILE NUMBER: BRC 2673  of 2012

Ms George

Applicant

And

Mr Stanton

Respondent

REASONS FOR JUDGMENT

1. The Applicant and Mr D Stanton (“Mr Stanton”) commenced cohabitation in August 1990.  They never married. They lived together until Mr Stanton was washed overboard from his boat and went missing on 2 February 2012.

2. On 30 March 2012, the Applicant filed an Initiating Application seeking that she receive, by way of final property settlement, 90 per cent of the net sale proceeds of B Street, Suburb C, which property is valued at an estimated $550,000.00 and all of Mr Stanton’s right, title and interest in the “interest deposit” with Westpac Banking Corporation Limited which currently stands in an amount of about $830,000.00.  Save for this property, the Applicant sought that she and Mr Stanton retain for their sole use absolutely all other property or financial resources owned by each of them.

3. On 22 August 2012, the Deputy State Coroner of the Coroner’s Court of New South Wales found that, on the balance of probabilities, Mr Stanton died on 2 February 2012 when he fell overboard from a yacht. On 11 October 2012 these particulars were recorded on the Death Certificate, which may be received by the Court as evidence of the facts stated in it,[1] issued pursuant to the Births, Deaths and Marriages Registration Act 1995 (NSW).

   [1] Family Law Act 1975 (Cth) s 102(a).

4. On 2 November 2012, the Applicant commenced proceedings in the Supreme Court of Queensland, seeking that, pursuant to s 41 of the Succession Act 1981 (Qld), adequate provision be made for her proper maintenance and support. Relevantly, in order to prosecute such a claim it is necessary that the Applicant establish that, as at Mr Stanton’s death, she was his ‘spouse’ which, as defined in the Succession Act, requires that she was his de facto spouse and had lived with him as a couple on a genuine domestic basis for a continuous period of at least 2 years ending on his death.[2] Such contention is inconsistent with the assertion that there had been a “breakdown” of the de facto relationship between the Applicant and Mr Stanton prior to his death but consistent with the conclusion that their de facto relationship ended because of his death.

   [2] Succession Act 1981 (Qld) s 5AA(2)(b).

5. On 11 April 2003, an Amended Application in a Case was filed, pursuant to Orders made by the Registrar on 4 April 2013, seeking that the proceedings commenced by the Applicant be dismissed on the basis that:

   a.the de facto relationship between the parties had not broken down before the Respondent’s death; or

   b.the Respondent was dead at the time the Initiating Application was filed; or

   c.the Court would not have made an order with respect to the property of the parties if the Respondent had not died and/or that it is not still appropriate to make an order with respect to property of the parties.

6. On 6 May 2013, Mr E Stanton as a legal personal representative of Mr Stanton was substituted for Mr Stanton in these proceedings (“the Respondent”).

7. A party may apply for summary orders if that party claims that the Court has no jurisdiction.[3] This is clearly the basis of the Respondent’s contentions as summarised in paragraphs 5a. and 5b.

[3] Family Law Rules (2004) Rule 10.12(a).

What is the Court’s jurisdiction?

1. The Court has jurisdiction with respect to “matters arising under this Act in respect of which de facto financial causes are instituted under this Act.”[4] The term “de facto financial causes” is defined, relevantly, to mean “proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them.”[5]

   [4] Family Law Act 1975 (Cth) s 31(1)(aa).

   [5] Family Law Act 1975 (Cth) s 4(1).

2. The term “breakdown” is defined in relation to a de facto relationship such that it does not include a breakdown of the relationship by reason of death. [6]

   [6] Family Law Act 1975 (Cth) s 4(1).

3. Counsel for the Respondent submitted that the Court has no jurisdiction because:

   a.there is no de facto financial cause because there was no breakdown of the de facto relationship between the Applicant and Mr Stanton other than by reason of his death and, because of the definition, there was no ‘breakdown’ in their de facto relationship such that there is no de facto financial cause; and/or

   b.as Mr Stanton died on 2 February 2012, the proceedings were commenced after he had died.

4. The Respondent asserts that he believed his father was still in his de facto relationship with the Applicant when he disappeared on 2 February 2012. [7]

   [7] in his affidavit filed 20 August 2012.

5. The Applicant does not give evidence about the ‘breakdown’ of her de facto relationship with Mr Stanton but does speak of ‘separation’. She says, at paragraph 5 of her affidavit,[8] that:

   We separated on 2 February 2012 when [Mr Stanton] went missing.

   [8] filed 30 March 2012.

6. And further, at paragraph 19:

   We continued to reside there together in a de facto relationship up until 2 February 2012. On that day [Mr Stanton] went missing from one of his yachts. His body has not been found and it is not known whether he is alive or dead.

7. And further at paragraph 33:

   The only relevant fact or circumstances is as I said that on 2 February 2012 [Mr Stanton] was apparently washed overboard from his yacht which he was sailing from Sydney to Brisbane. If he is deceased his body has not been found and as far as I am aware he is presumed to be alive.

8. Whilst Counsel for the Applicant submitted that the parties “finally separated” on 2 February 2012, there is no evidence to suggest that the parties had previously separated on any occasion before Mr Stanton was lost at sea.

9. Further, Counsel for the Applicant submitted that “the parties continued to reside in a de facto relationship up until 2 February 2012 when the de facto husband went missing.”[9]  Such submission is inconsistent with any assertion that there was any ‘breakdown’ in the de facto relationship at any time prior to Mr Stanton being lost at sea and dying on 2 February 2012.

   [9] Outline of Submissions on behalf of the Applicant, paragraph 17, Exhibit "B".

10. In addition, I note that, some six weeks or so after the Application was filed, the Applicant says, in an email dated 3 May 2012, in response to queries about when she anticipated returning to Australia:

    [Mr Stanton] and I had planned middle of June and [Mr F] told me he couldn’t see any reason not to stick to that schedule as bookings had been made. It is so strange without [Mr Stanton] and all the things he planned to do this year are on hold with just normal maintenance being undertaken by a village handyman. (My emphasis)

11. Such comment is inconsistent with any assertion that, at a time prior to 2 February 2012, the Applicant and Mr Stanton had separated. Rather, it is consistent with the conclusion that, but for his death, the Applicant and Mr Stanton would, in the course of their ongoing de-facto relationship, have travelled to France, as was clearly intended, where he would have done those things he planned to do that year.

12. Further, I have had regard to a series of email authored by the Applicant, attached to the Respondent’s affidavit, and consider that the tone of these is completely consistent with the conclusion that, at the time of Mr Stanton’s death, the Applicant considered them still to be in their long-standing de facto relationship.

13. I accept that there is no evidence and indeed “no suggestion” of a breakdown of the de facto relationship between the Applicant and Mr Stanton before he died on 2 February 2012. I find that the de facto relationship between the Applicant and Mr Stanton broke down because of his death.

14. Counsel for the Applicant submitted that, as the Initiating Application had been filed prior to the declaration by the coroner as to the death of Mr Stanton, such proceedings were commenced prior to his death and, consequently, such proceedings could continue despite Mr Stanton’s death.[10] I reject this submission.

    [10] Family Law Act 1975 (Cth) s 90SM(8).

15. I conclude, therefore, that there is no “de facto financial cause” and that this Court does not have jurisdiction to determine the Application filed by the Applicant.

Costs

1. The Respondent seeks an order that the Applicant pay the costs of and incidental to the proceedings. This includes those costs which were reserved by Registrar Coutts on 6 May 2013.

2. The general rule in proceedings under the Family LawAct 1975 (Cth) (“the Act”) is that each party bears his or her own costs. However, if the Court is of the opinion that there are circumstances that justify it in doing so the Court may, subject to certain considerations, make such order as to costs as the Court considers just.

3. In considering what order as to costs, if any, to make, the Court shall have regard to a number of specified matters prescribed by s 117(2A) of the Act.

4. The Applicant is the owner of residential property in Queensland which she values at approximately $450,000.00 and real property in France which she values at $200,000.00. She has cash at bank in the amount of $1,442,000.00 shares with an approximate value of $19,500.00 and a motor vehicle which she values at $2,000.00.

5. Mr Stanton’s estate includes real property at B Street, Suburb C valued at approximately $550,000.00 a motor vehicle valued at approximately $2,000.00 and cash of about $833,554.33.

6. I consider that the evidence establishes that the Applicant herself was well aware, prior to commencing proceedings on 30 March 2012, that Mr Stanton was dead. Had she been more equivocal in the contents of her email the submission that she was entitled to presume that Mr Stanton was alive until the finding by the coroner in August 2012 that he had died on to February 2012 may have been more persuasive.

7. In correspondence, dated 11 December 2012,[11] the Respondent requested that the Applicant withdraw the proceedings commenced in this Court because the Court had no jurisdiction as Mr Stanton was dead as at the time proceedings were commenced. It was proposed, at that time, that each ‘side’ pay their own legal costs and outlays. It is, I think, of significance that this proposal came after both of the Coroner’s determination as to the date of Mr Stanton’s death and the Applicant’s commencement of proceedings in the Supreme Court of Queensland pursuant to the Succession Act. Clearly, given my determination, the Applicant would have been well advised to accept this offer.

   [11] Exhibit 1, Annexure "F".

8. In correspondence dated 19 December 2012[12] the Respondent’s solicitors, engaged to act in the Supreme Court proceedings, expressed the opinion, with which I agree, that it was “impossible” for the Applicant to maintain proceedings in the Family Court, which relied upon the assertion that the de facto relationship with Mr Stanton had broken down prior to his death and proceedings in the Supreme Court which relied upon the assertion that, as at the time of his death, she remained his ‘spouse’.

   [12] Exhibit 1, Annexure "H".

9. The Applicant has been wholly unsuccessful in the proceedings in this Court. She determined to proceed despite the offer on a number of occasions to withdraw the proceedings and focus upon those commenced in the Supreme Court of Queensland.

10. I am satisfied that there are circumstances which justify the making of an order that the Applicant pay the Respondent’s costs of and incidental to the proceeding.

11. I turn now to consider the basis upon which such costs should be paid given that the Respondent has sought that they be paid on an indemnity basis. Unless there are exceptional circumstances, an order for costs should be made on a party and party basis. 

12. I have had regard to D & D Costs (No. 2) (2010) FLC 93-435 in which the Full Court reviewed extensively earlier authorities, including Limousin & Limousin (Costs) (2008) 38 Fam LR 478 and Kohan and Kohan (1993) FLC 92-340, and also Sheppard J’s decision in Colgate-Palmolive Co v Cussons Pty Ltd  (1993) 118 ALR 248.

13. In particular, I note that, in outlining examples where a Court might properly consider an award of indemnity costs, Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd  gave as an example “the making of allegations which ought never to have been made or the undue prolongation of the case by groundless contentions.”

14. Whilst an order for costs, including indemnity costs, is not something ordered by way of punishment,[13] conduct is directly relevant to a consideration of the award of costs on an indemnity basis. I am satisfied that the Applicant’s pursuit of proceedings in this Court in circumstances where it is and ought to have been plain there was no jurisdiction constitutes “exceptional circumstances” so as to warrant an order for costs on an indemnity basis. Such costs, of course, should only be paid in respect of reasonable costs properly incurred by the Respondent.

    [13] Latoudis v Casey (1990) 170 CLR 534, 543.

15. There is no evidence before me to establish the precise sums spent by the Respondent in respect of the legal fees associated with proceedings in this Court. Consequently, it is not possible for me to order the payment of a specific amount of money: rule 19.18 (1) (a) of the Rules. Accordingly, in the same way as Murphy J did in Donaghey v Donaghey (Costs) 2013 47 Fam LR 306 at 317, I intend to order, that within 14 days of this Order the Respondent file and serve an affidavit deposing to the precise sums payable to the legal advisors in respect of the Application to which this Order pertains and which annexes a copy of all fee notes or invoices pertaining to such costs and disbursements. Such evidence will establish the amount payable by the Applicant.

16. I order accordingly.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on the 9 August 2013.

Associate: 

Date:              21 August 2013