GILES & HAIDAR

[2020] FCCA 1869

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILES & HAIDAR [2020] FCCA 1869

Catchwords:
FAMILY LAW – Costs – where Court had set down a hearing for the discrete issue of when a de fact relationship ended –where both sides filed evidence and had witnesses to call – where the respondent conceded the point at the door of the Court – where the applicant askes for costs – whether respondent is wholly unsuccessful – where concession should have been made much earlier – where applicant expended much time, energy and money unnecessarily – costs of $12,000 ordered.

Legislation:

Family Law Act 1975 (Cth), ss.44,117

Applicant: MS GILES

Respondent: MR HAIDAR

File Number: LEC 517 of 2019

Judgment of: Judge Vasta

Hearing date: In Chambers

Date of Last Submission: 6 July 2020

Delivered at: Brisbane

Delivered on: 9 July 2020

REPRESENTATION

Counsel for the Applicant: Ms Peace Decle

Solicitors for the Applicant: Paul Denmeade & Co

Counsel for the Respondent: Mr Alan Ford

Solicitors for the Respondent: Bruce Caldwell & Associates

ORDERS

1. That the Respondent pay the Applicant’s costs fixed in the sum of $12,000

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

LEC 517 of 2019

MS GILES

Applicant

And

MR HAIDAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. In September 2004, the Applicant, Ms Giles met the Respondent, Mr Haidar.  They began a relationship soon afterwards.  That relationship is now at an end.  The Applicant was born 1959 and is currently 61 years of age.  The Respondent was born 1962 and is currently 57 years of age.

2. On 16 September 2019, the Applicant filed an originating application in this Court seeking property adjustment.  The orders sought were that the property pool be valued at $3.6 million and that the Applicant receive 40% of that pool; that is, one $1.44 million.

3. The Respondent filed his response on 14 November 2019. His response asked for the application to be dismissed because the Applicant had failed to commence her proceeding within the time limits set out in s.44(5) of the Family Law Act 1975 (Cth) (“the Act”).

History in this Court

1. The matter came before Her Honour Judge Turner on the first return date of 9 December 2019.  Her Honour set the matter down for the threshold issue to be decided.  On 19 December 2019, Her Honour made trial directions for the one-day hearing to occur on 16 April 2020.  The Applicant filed an amended initiating application on 27 March 2020.  The matter was not able to be heard on 16 April 2020 and on the next day, 17 April 2020, Her Honour ordered that the parties file and serve any further material that they intend to rely upon no later than 1 May 2020. 

2. As a result of the coronavirus restrictions, the trial was set as a Microsoft Teams trial for 19 June 2020.  Unfortunately, Her Honour was not available to hear the matter and I stepped into the breach.  As we were readying the trial to begin at 10 AM on that day, both Counsel informed me that the matter was going to be resolved by consent, except for the matter of costs.

3. I then made the declaration that a de facto relationship existed between the Applicant and the Respondent for the period January 2005 to at least 17 September 2017.  The parties then agreed to a number of other orders to progress the matter further. 

4. I asked Counsel for the Applicant as to whether she was ready to make her submissions as to costs.  She said to me that she was not and would rather make the submissions in writing and for the Court to give a written decision.

Issue that was to be litigated

1. There is no issue that the Applicant and Respondent were in a de facto relationship.  There is no argument that they began cohabitating around January 2005.  The issue was “when did the de facto relationship cease?”  The Applicant claimed that the de facto relationship ceased when she physically left the house they were sharing in Town A, Victoria on 17 December 2017.

2. The Respondent claimed that the relationship ended on 18 November 2015.  He said that when they separated, the Applicant moved to the rear part of the house and that they lived separate lives under the one roof for approximately the next two years.

3. This date becomes critical. This is because of s.44(5) of the Act,

   (5) Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:

   (a) the application is made within the period (the standard application period) of:

   (i) 2 years after the end of the de facto relationship; or

   (ii) 12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or

   (b) both parties to the de facto relationship consent to the application.

4. This section is subject to subsection 6 which reads:

   (6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

   (a) hardship would be caused to the party or a child if leave were not granted; or

   (b) in the case of an application for an order for the maintenance of the party—the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

5. If the matter had proceeded and the Applicant had convinced me that the relationship finished in December 2017, then I would have ruled that the Applicant had filed her application in time. But if the Respondent had left me in a state of doubt, such that I could not be satisfied that the relationship finished after 17 September 2017, then the application would be out of time and the Applicant would have to rely upon the Court granting the leave pursuant to subsection 6.

Summary of the contentions of the Applicant

1. The Applicant, in her material, described the relationship and what her contributions were to the relationship.  Without going into detail, the Applicant painted a picture of an unremarkable life with the Respondent.

2. The Applicant spoke of becoming depressed towards the end of 2015 because she had lost her business (and therefore her job) and she felt that the Respondent was pressuring her to get back into the workforce.  She describes a happy Christmas in 2015 and some pleasant outings in March 2016.

3. The Applicant said that in April 2016, the Respondent and herself trialled a separation and she began sleeping in a bedroom at the other end of the house.  She said that she sought help from a counsellor at this time.  She reported that the Respondent had told her that she should apply for Centrelink payments, however she did not do this, firstly because it was a lot of trouble for her to sort out her finances to give to Centrelink, and secondly, because she thought that she and the Respondent may get back together.

4. She said that about three or four weeks after they began sleeping apart, they reconciled and started sleeping together again.  She said that the relationship was then back on track.

5. The Applicant said that around August/September 2017, she became ill with the flu and moved into another room of the house so that she could recuperate.  She said that she was not supported by the Respondent and began to feel that the relationship was doomed.  She said that she told the Respondent that she wanted to end the relationship but that he begged her to stay.

6. The Applicant said that the Respondent admitted that he took her for granted but she said that it was too late.  She said she left the family home on 17 December 2017 and went to Town B.  She said that the Respondent wrote to her (it would seem around January/February 2018) asking for the relationship to resume.  The Applicant said that she didn’t trust that there would be a change and decided not to respond.

Summary of contentions of the Respondent

1. The Respondent said that the relationship deteriorated significantly between September and November 2015.  He said that separation occurred on 18 November 2015 because he wrote a note in his diary that he had separated from the Applicant on that day.  A copy of the diary entry is annexure one to his affidavit of 24 March 2020. 

2. He also annexed a text message from the Applicant dated 25 November 2015 which indicated that the Applicant would be staying at a friend’s house for the night and would clear “as much as possible tomorrow”.

3. He said that she did not clear her property and instead moved to a rear part of the house where she had her own bedroom and bathroom.  He said that from that point they lived separately and apart under one roof.

4. The Respondent said that he often asked the Applicant to leave the house but she would respond that she had nowhere to go.  He said that this continued until she did finally leave in December 2017.

Other evidence

1. Both parties had other witnesses that were to testify as to their knowledge of the extent of the relationship between the Applicant and the Respondent.  None of those witnesses was truly going to be decisive in the Court ruling one way or the other. 

2. The Respondent relied upon a referral letter from the Applicant’s GP to a counsellor.  In that referral letter, dated 14 April 2016, the GP refers to the Applicant having symptoms of anxiety, with one of the stressors being that the Applicant “has broken up with her partner of 10 years”.  In another part of the letter the GP describes the Applicant as “living in the two ends of the house in her ex-partner’s house”.

3. The Respondent was claiming that this letter corroborated his evidence that they had separated in November 2015.  It would seem that the Applicant was going to say that this letter was still consistent with her evidence and timeline.

4. The most damaging piece of evidence against the Respondent is that letter that he wrote to the Applicant in January/February 2018.  The letter is hand written and is three pages long. It reads as follows:

   Hi [Ms Giles] I hope this letter finds you well. To my one and only true love in my life you kept us all warm when it was cold you provided food for us cooked for us cleaned for us washed our clothes listen to all our problems and had to deal with some horribil issues that was caused thru my side of the family out of my control, you looked after all of us C, D, me, yaya you cared for my mother and fully supported me through out the depressing moments accured and you did not receive much in return of what you truly deserve you supported me with all the stress with my brother/sister you were always there then what you went thru with your job’s and business I now understand what you had to go thru with not allot of support from I am so,so,so, sorry, you mentioned to me that E said a lepard does not change it’s strips well mine are fading, I did not understand your cry for help as I was wearing blinkers in my own direction and not understanding your needs issues with shopping I now understand what you were trying to tell me in regards to cost etc and now understand “please forgive me” the only thing most valuable to me is you “not money” we have both worked hard in our lives, but I would like you to know that all the hard work, frustration, caring support, over the thirteen years is not forgotten or wasted thru you leaving obviously I can see you were finding it hard to breath and allowing you to take some deep breaths, were you are now is allowing us both to think and see the real picture, you did not ask for much in return for all the work you had put in for us all is not forgotten, I am so,so, so sorry “please forgive me” hoping you will allow me to fix my mistakes I did not understand, I think of you every day wishing you were here, money and materialistic things don’t mean much to me anymore since we have been apart, I have realized that the only thing that really means the most to me is you I will always put you “first” not second like I did and I am very sorry for doing so “please forgive me”, when making decisions will make them together, I will listen to you and understand you I will care for you financially and in health with me for the rest of our lives, I want to spend the rest of my life with you and grow old with you, tour Australia or what ever we choose to do and I realize that the age we both are now we need to start enjoying ourselves and be happy “I now understand”, life is short I have worked all my life to build up some wealth and now its time to enjoy that wealth with you, I want to make up for all those year’s you were not happy, I did not think it could ever pull down the brick wall that I thought I could never do only for you “I can trust you”, you are caring and a buttiful person I have ever met I love your smile and the way you talk, I need you to know that what ever promise I make to you I will keep “they will not be words”, we have our different interests in thing’s but that is good but also similar interest’s, I have done a lot of thinking since you have been away and I only want to care and look after you and love you also spoil you because that is what you deserve and I want to do you have helped people your kind hearted this is the person I want to spend my life with, D, F ask about you they miss you to we all care about you will look after and treat you “write”, I know that this time apart was needed as you said for the both of us, the thing is I know we can fix our relationship and spend the rest of our live’s together being happy as there is only the both of us, I have had a brief talk with D in regards to my decision and he agree’s if we are back together what is mine is your’s you have not wasted thirteen year’s for all your hard work and effort, I will treat you look after you because you deserve it you kindness, and giving person that you are owe promise that I will make to you is “I will not let you down anymore, (“ever”) I will put you first “always” we will visit your family more often together and share good time’s together being “happy” I need to make this write for you and me, and make a “fresh health” start together for the first time in my life I have realized that you were a blessing to me and given a chance I promise to make you happy, I will support you in what ever you do and I want to be your “best friend” and you mine what I written in this letter is from my heart I trust you “please” trust me, I have never written a letter like this in all my life where I have had to put my total truth full feelings for someone in writing but I am for you [Ms Giles] I love you and alway’s will it’s not that I think I love you I know I do.

   P.S

   Love always’s

   [Mr Haidar] xo [typos and punctuation issues reflected in original text]

Costs

1. As both parties acknowledge, s.117 of the Act is apposite here,

   117 Costs

   (1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

   (2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

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

   (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;

   (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;

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

   (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; and

   (g) such other matters as the court considers relevant…

Submissions of the Applicant

1. The Applicant has submitted that, because, on 19 December 2019, Her Honour Judge Turner set the matter down for a one-day hearing, all of the costs that have been expended from that date until the date of trial before me, were costs that went solely to the issue of when the de facto relationship ended.

2. The Applicant submits that the Respondent is in a far greater financial position than she is and that she has depleted her savings in financing the present litigation.  She points to the fact that she incurred a great deal of expense in obtaining evidence, filing evidence and preparing for trial, only to have the Respondent accept her contention at the door of the Court.  She claims that, in these circumstances, she is entitled to her costs.

Submissions of the Respondent

1. The Respondent has submitted that the concession made by him, at the door of the Court, was one that was made for commercial reasons rather than a concession as to the correctness of the contentions of the Applicant.  The Respondent submits that the hearing would have lasted for longer than one day and that, when given a realistic estimation of the costs of the hearing, the decision made by the Respondent was a practical one.

2. The Respondent submitted that the hearing date was usefully occupied by the legal representatives coming to sensible directions to move the matter closer to completion.

3. The Respondent submitted that costs should be reserved and that the issue should be determined upon the final disposition of the matter.

4. Somewhat paradoxically, the Respondent submits that, because the Applicant was not in a position to press their claim for costs on the day of the hearing, he should have his costs of this particular costs application.

Discussion

1. This is an interlocutory step in the application for property adjustment.  Whilst the Applicant would like to categorise the concession made by the Respondent as being a “victory”, it is really a victory in a “battle” but the “war” has not ended.  This is why the Applicant cannot claim that the Respondent has been “wholly unsuccessful”.

2. On the material before me, neither party has any great liquidity.  The Respondent may have a great deal of assets but has no ready cash.  The Applicant is in a parlous financial position.

3. I have gone into a lot of detail regarding the positions of the parties, far more than I would normally undertake in a costs application, because the merits of the matter are a not insignificant factor.

4. It seems to me that the letter written by the Respondent in February 2018, is a very significant piece of evidence.  The Respondent would have me believe that he wrote this letter to the Applicant notwithstanding that their relationship had concluded over two years beforehand. 

5. He sought to explain the letter in paragraph 5 of his affidavit of 15 June 2020 as

   an effort to thank the Applicant for her contribution to our relationship in order to leave things on good terms between us where possible.  If there was any subsequent reconciliation down the track, then I believe that I had done the right thing after she had finally moved out after experiencing a long period of arguing and disconnect following our separation whilst residing under the one roof.

6. The letter does not have those characteristics.  The letter is written by someone who is obviously regretful of the recent breakdown of a romantic relationship.  If the circumstances of the end of the relationship were as the Respondent claimed, then he would not have written this letter.  It is significant that he referred to the relationship as being one of thirteen years and not ten years.

1. To my mind, this letter is very strong corroboration of what it is that the Applicant had claimed.

2. After the Respondent became aware of this letter, he must have known that the Applicant was going to be able to establish that the relationship between the Respondent and herself had not ended earlier than 17 September 2017. 

3. I do not accept that the Respondent made the concession on 19 June 2020 solely because of commercial and practical considerations.  To my mind, it was an example of behaviour that is seen by the Courts again and again; that litigants can be dogmatic in their determination to fight and contest a particular matter, but when “the rubber hits the road” and the reality of the situation hits home, litigants buckle and accept the inevitable.

4. There is nothing inherently wrong with this because it is part of human nature.  But that does not mean that there are no consequences to such behaviour.  The concession should have been made much earlier.  The efforts of the Applicant where she has expended much time, money and energy were made unnecessary by the actions of the Respondent.

Conclusion

1. I have taken into account all of the factors listed in s.117(2A). I am of the view that the Applicant should have some of her costs paid.

2. How I award costs and the amount that I award are matters for my discretion.  The Applicant has said that she has expended the amount of $22,325 from the commencement of these proceedings up until 19 June 2020.  She also said that she has expended the amount of $1,980 to make the present application for costs.

3. I am not inclined to make an award for the latter amount.  I was ready, willing and able to hear and decide the matter of costs on 19 June 2020, but it was Counsel who did not wish me to hear them on that day.

4. I am not convinced that the scale amounts in either the Federal Circuit Court Rules 2001 (Cth) or the Family Law Rules 2004 (Cth) provide proper guidance for an appropriate award of costs in this matter. In the circumstances of this case, I am of the view that I should go beyond these scales. There has been a great deal of effort made by the Applicant in tracking down witnesses. This has been made even more difficult by the fact that the Applicant is based in northern NSW while her witnesses were mainly in Melbourne.

5. On the other hand, I do not agree that the question of the date of the end of the relationship was the only issue upon which the Applicant presented evidence to the Court. The Applicant gave detailed evidence as to her contributions and the role that she played within the relationship. That evidence may be said to have been necessary to convince me to exercise a discretion pursuant to s.44(6), but it still has served a purpose in giving an evidentiary basis for the Applicant’s ultimate contention as to what would be a just and equitable adjustment of property.

6. In all of the circumstances, I order that the Respondent pay the Applicant’s costs fixed in the sum of $12,000.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 9 July 2020