GRAINGER & EDEN
[2015] FCCA 3006
•12 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRAINGER & EDEN | [2015] FCCA 3006 |
| Catchwords: FAMILY LAW – Security for costs application – further application for access to files of the parties in earlier family law (the de facto Wife) proceedings and in recent criminal proceedings (the de facto Husband) – fixed costs order sought by Applicant de facto Wife for Respondent de facto Husband vacating the final hearing for a second time – request for Husband’s former solicitors to respond to Husband’s allegations of negligence. |
| Legislation: Family Law Act 1975, s.117(2A) Federal Circuit Court Rules 2001, r.21.01 |
| Bartsch & Redman (2014) FLC ¶93-584 Evans v Rochford (2003) 30 Fam LR 336 Luadaka & Luadaka (1998) 148 FLR 421; (1998) 24 Fam LR 340 Sidhu v Van Dyke (2014) 251 CLR 505 |
| Applicant: | MS GRAINGER |
| Respondent: | MR EDEN |
| File Number: | CAC 767 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 20 August 2015 |
| Date of Last Submission: | 21 September 2015 |
| Delivered at: | Canberra |
| Delivered on: | 12 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms B Lane |
| Solicitors for the Applicant: | Campbell & Co |
| Counsel for the Respondent: | Mr J Shaw |
| Solicitors for the Respondent: | N/A |
ORDERS
The Husband is to pay the sum of $25,000.00 to the trust account of the Wife’s solicitor, within 90 days from the date of these Orders by way of security for costs, pursuant to Section 117(2A) of the Family Law Act 1975 (Cth).
The Husband is to pay the Wife’s costs for the Directions Hearing of 20 August 2015 and for the vacated Final Hearing on 21 August 2015 in the amount of $8490.00 within 60 days from the date of these Orders. Such payment must be made to the Wife’s solicitor’s trust account.
The Hearing dates of 21 and 22 April 2016 be stayed, pending full payment of the costs outlined in Orders 1 and 2 within the stipulated time frame.
The parties are to attend a Conciliation Conference on 16 December 2015 commencing at 2:15pm.
The Applicant shall pay the Conciliation Conference fee, or obtain an exemption for such payment, if applicable, in accordance with Regulation 2.09 of the Family Law (Fees) Regulation 2012.
If either party is in a superannuation plan that party forthwith make an application to the Trustee of the plan pursuant to Section 90MZB for information about the party’s interest in the plan and provide a copy of that information to the other party as soon as it is received.
Unless by 2 December 2015 the parties agree on the value of all assets in dispute, they shall arrange for a single joint valuation of those assets to be available at least 7 days before the Conciliation Conference with the costs of such valuation to be equally shared, unless otherwise agreed in writing.
If valuations are in issue the parties are to exchange copies of valuations or market appraisals no later than 14 days prior to the date of the conference.
The solicitors for the parties are to email the Registrar a Conciliation Conference document to [email protected] no later than 2:00pm the day before the Conference.
The solicitors comply with Rule 19.04 Family Law Rules 2004 (Notification of costs).
The Registrar of the Court is requested to provide a copy of these reasons to the Husband’s former solicitors.
The Husband’s former solicitors are invited by the Court to respond to the Husband’s allegations that they did not have instructions to advise the Court to concede the existence of a de facto relationship between the parties, and that the consent orders made by the Registrar at the conclusion of the conciliation conference held on 11th December 2014 regarding the sale of the property at Property B were also made without instructions. Any response from the solicitors is requested to be provided to the Court within 28 days.
THE COURT NOTES THAT:
A.No later than 9 December 2015 both parties are to email the Registry at [email protected] to confirm (a) that there are no outstanding matters; (b) no outstanding financial disclosure and (c) that the matter is ready to proceed to the Conciliation Conference.
B.Absent the receipt of emails from both parties (or an email acknowledging that it is jointly sent) the Conciliation Conference will be vacated without further notice to the parties.
IT IS NOTED that publication of this judgment under the pseudonym Grainger & Eden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 767 of 2014
| MS GRAINGER |
Applicant
And
| MR EDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This long-running but regularly interrupted matter concerns property orders sought by the Applicant de facto Wife (“the Wife”).[1]
[1] The terms “Wife” and “Husband” are used in these reasons simply for convenience and are not to be taken as any indication of the Court’s view regarding any application before the Court.
To speak generally, on various occasions throughout the proceedings the Respondent de facto Husband (“the Husband”) has (a) via his then solicitors, conceded that there was a de facto relationship between the parties, (b), in more recent times challenged whether those [former] solicitors had relevant instructions to make such a concession, and (c) resiled from the concession made by his previous legal representatives.
Further to this, the Wife contends that the Husband conceded the existence of the de facto relationship on three occasions: 11th December 2014, again by the Husband’s previous lawyer in court on 25th March 2015, and most recently by the Husband in open court on 27th May 2015.
Part of the factual and legal matrix of the matter includes the Husband being convicted of offences, while an (occupation omitted) with the (employer omitted), including accessing data from an (employer omitted) data base concerning the Wife, and stalking her.
The issues immediately to determine relate to (a) an application by the Wife for security for costs in relation to the regularly delayed final hearing (already vacated twice), and (b) an application by both parties for files from previous proceedings: in the Wife’s case, she seeks access to the recently concluded criminal proceedings involving the Husband; in the Husband’s case, he seeks (among other things) access to much older files that involved the Wife in much earlier property proceedings arising from a previous relationship.
A Brief Chronology
The following outline or overview of the procedural history of the matter provides appropriate background and context for the Application for security for costs, and the submissions outlined below.
The matter commenced with an Initiating Application, filed 5th June 2014.
On 17th June 2014, the Husband filed response material, in which he sought a declaration that the parties were not in a de facto relationship (emphasis added).
On 18th June 2014, orders were made, by consent (with both parties legally represented) which provided for, among other things, the Respondent Husband to provide detailed disclosure of various financial records, and for him not to encumber a nominated property.
It might be noted – nothing more – that no issue was raised on this occasion regarding the status of the relationship between the parties.
On 6th November 2014, orders were made for the parties to attend a conciliation conference. Again, no issue was made or taken regarding the existence of the de facto relationship.
On 11th December 2014, the Registrar made consent orders, which curiously were not signed by the parties, which provided for the sale of a property in the Canberra suburb of Property B, and how the proceeds of sale were to be dealt with (e.g. the payment of the mortgage over the property, payment to the Wife of no less than $10,000 arising out of “the Husband’s failure to make mortgage payments”, and the balance to be held in trust).
It should be noted that the Husband has since indicated to the Court that he never provided his then solicitors with instructions to consent to these orders. He also maintained that it was his understanding that the conciliation conference had not concluded on 11th December, and that it had been stood over until another date in either January or February 2015.
I simply note here two things:
(a)The Registrar’s Bench Sheet from the conciliation conference does not mention anything about the matter being adjourned. Among other things it records that the Husband would not make any offer, that the Wife would confirm her offer of settlement within 7 days, and that the Husband’s solicitor was going to check on the possibility of the Husband’s superannuation being split. The Bench Sheet clearly notes that there are “consent orders to put Property B sale proceeds in trust”. The Bench Sheet also clearly notes that the matter was to be referred back to me for listing for a trial that was estimated to run for 2 days;
(b)The Husband’s contention that his solicitors did not have relevant instructions to agree to the consent orders made by the Registrar on 11th December 2014, is the first of two occasions when he alleges that his then solicitors did not have relevant instructions, on this occasion, to agree to the consent orders made by the Registrar.
I simply observe that the Husband’s former solicitors are long-experienced in family law and in criminal proceedings. Without making any ruling, and acknowledging that it can and has happened, I suggest that to agree to consent orders without instructions, by a solicitor of the experience that the Husband’s solicitor has, might be said to strain credibility somewhat. To say to the Court, as the Husband does (as I note below) that such conduct happened a second time, namely that the same firm was again without relevant instructions when making a concession in open Court on the Husband’s behalf, tends not only to the incredibly awkward, but hovers terribly close to the incredible.
In this regard, in my view the Husband’s solicitors should have an opportunity to respond to the Husband’s allegations against them. Accordingly, I request the Registrar of the Court to make a copy of these reasons available to those solicitors, who in turn are invited by the Court, to respond to the Husband’s allegations. It will be a matter for the solicitors as to the manner of their response. It is requested that any response be provided to the Court within 28 days.
On 16th December 2014, with the Wife’s solicitor mentioning the matter on behalf of the Husband’s solicitor, the matter was listed for a 1 day trial on 16th April 2015; various filing directions were made in relation to preparation for the trial.
On 25th March 2015, the matter came before the Court for pre-hearing directions. The lawyers for both parties confirmed that the matter was ready to proceed, and that the trial would run. The solicitor for the Husband confirmed that the existence of the de facto relationship was no longer in issue and was conceded; it was only the duration of the relationship that remained in issue. The concession was recorded as a notation to the orders. Later this same day the Husband’s solicitors withdrew from acting for him.
On 16th April 2015, the scheduled hearing of the matter, on the Husband’s application, the trial was vacated. It was submitted by him that his criminal trial could be jeopardised or otherwise prejudiced by any evidence given in the proceedings in this Court and that any final determination in this Court would be dependent upon any sentence handed down in his criminal matter. Again I simply observe that that risk was surely in view well before the trial.
Following the vacation of the trial, certain orders were made, some by consent, others by the Court (with both parties represented by Counsel) as follows:
BY CONSENT, THE COURT ORDERS THAT
1) The parties do all things and sign all documents necessary so as to re-finance the mortgage secured over the property located at Property H, such as to remove the Respondent’s name from that mortgage.
2) The parties do all things and sign all documents necessary to refinance the mortgage secured over the property located at Property B, such as to remove the Applicant’s name from that mortgage.
3) From the date of these Orders, the Applicant shall be responsible for the mortgage and outgoings secured by the Property H property.
4) From the date of these Orders, pending sale of the Property B property, the Respondent shall be responsible for timely payment of mortgage and outgoings associated with the Property B property.
5) In the event of either party failing or refusing to sign all such documents as may be necessary to effect a transfer of the property in accordance with Orders 1 and 2 of these orders within 14 days, the Registrar of this Court is immediately authorised to sign the Contract for Sale and all other associated sale, transfer and mortgage discharge documents pursuant to s106A of the Family Law Act 1975.
THE COURT ORDERS THAT:
6) Within 7 days from the date of these Orders, the Respondent shall provide to the Applicant’s lawyer the following documents, or explanations as to why such documents are not or cannot be provided:
a) Copies of all superannuation statements for the past 2 years;
b) Copy of outcomes and applications for redundancies sought from his employer in 2014 or previously;
c) Copies of the Respondent Husband’s tax returns and taxation assessments from 30 June 2010 to date;
d) Copy of the Respondent Husband’s current bank accounts from 1 January 2015 to date.
7) By 12:00pm noon on 17 April 2015, the Respondent Husband shall provide to the Applicant Wife’s lawyer the following documents:
a) Details of the use to which the monies sent from overseas were used;
b) Any documentation in relation to any lease or contract relating to the (business omitted) namely, “(omitted)” in (omitted).
8) The Respondent Husband is to pay the Applicant Wife’s costs of today’s hearing, as agreed, or as per the scale, according to the Federal Circuit Court Rules 2001.
9) The matter be set down for hearing for 1 day, on a date to be advised, but not before the Husband’s criminal matters have been substantially dealt with.
10) Trial directions will issue from Chambers in due course.
THE COURT NOTES THAT:
1. The parties and practitioners are to notify Chambers as to the status of the Respondent Husband’s criminal proceedings as the matter proceeds; in particular, the parties and practitioners are to notify Chambers at the earliest possible time as to the outcome of the criminal trial set down for June 2015.
On 25th May 2015, the Husband filed an Application in a Case in which he sought orders, in substance and effect, for the release of funds to enable him to retain legal representation in his then very imminently to be heard criminal proceedings in the ACT Magistrates Court. Those proceedings were listed for a three day hearing commencing on 3rd June 2015.
On 27th May, with the Wife legally represented, and the Husband on his own behalf, the Court made the following notations and orders. On this occasion (a) the Husband confirmed that he did not agree to the existence of a de facto relationship with the Wife, and (b) the Wife’s solicitor simply pointed to the notation to the orders of 25th March 2015. The orders of 27th May provided:
THE COURT NOTES THAT:
A.The matter was listed for a one day Final Hearing on 16 April 2015; although negotiations took place on that day, the matter did not settle, nor did the Final Hearing run, and accordingly, the parties were informed that a new date for the final hearing would be allocated at the earliest possible time;
B.The Application in a Case filed by the Husband on 25 May 2015 was listed on an urgent basis regarding an Order for the release of funds for the Husband to pay the solicitors representing the Husband’s criminal matters;
C.The Husband’s criminal matters are listed in the Magistrates Court in the ACT for a three day trial commencing on 3 June 2015;
THE COURT ORDERS THAT:
1) By consent, upon the sale of PROPERTY B, ACT (“the Property B property”) the amount of $7413.00 be released and paid to the Wife as the agreed costs Order of the Court event of 16 April 2015.
2) Upon the sale of the Property B property, $22,000.00 is to be released from the proceeds of sale and paid to the Applicant Husband, and $22,000.00 is to be released from the proceeds of sale and paid to the Respondent Wife, with the characterisation of these amounts to be determined at the Final Hearing.
3) The remaining proceeds of sale of the property are to be held in a trust account as agreed in writing between the parties pending a final determination by the Court at the Final Hearing.
4) The costs of this urgent Application are reserved in favour of the Wife.
5) The matter be set down for a one day Final Hearing on 21 August 2015 commencing at 10:00am.
6) Any updating material for the Final Hearing is to be no longer than 5 pages in length and is to be filed by no later than 14 August 2015.
7) The matter be listed for pre-hearing directions on 31 July 2015 at 9:15am.
On 31st July (the pre-hearing mention), with the Wife’s solicitor mentioning the matter on behalf of the Husband (and his directly-briefed Counsel), it was confirmed that the pool in question was very small (approximately $22,000), and that the matter was proceeding to trial.
On 20th August (the day prior to trial date), with both parties represented by Counsel, and again the trial being unable to proceed, among other things, because of issues regarding disclosure, the Court made the following orders and notations:
THE COURT ORDERS THAT:
1) Within 21 days from the date of these Orders, both parties are to advise the Court of;
a) Any other files sought to be used in the current proceedings and the grounds upon which it is sought;
b) A list of the proposed witnesses and the periods for which, and reason(s) why, each witness is required.
2) The parties are to file written submissions within 21 days from the date of these Orders on the issue of security for costs.
3) The Trial date of 21 August 2015 be vacated.
4) The matter be listed for further Trial dates at a date and time to be confirmed, subject to receipt of the party’s submissions in accordance with Order 1.
5) The Respondent is to pay the Applicant’s costs for the Directions Hearing of 20 August 2015 and the vacated Trial of 21 August 2015, and the quantum of those costs, if not agreed, will be the subject of further submissions with a view to the Court awarding a specific sum.
THE COURT FURTHER ORDERS, IN CHAMBERS THAT:
6) In relation to Orders 2, and 5 submissions are to be no more than 4 pages in length (in total).
THE COURT NOTES THAT:
A. Upon receipt of details from the parties of details of the Respondent’s matter, the Registrar of this Court is requested to contact the Registrar of the ACT Magistrates Court to obtain a copy of the relevant Court file.
Pursuant to these orders, submissions have been filed by both parties.
On 29th September 2015, the Court made orders in Chambers fixing the matter, for the third time, for trial on 21st April 2016. Trial directions were made, yet again.
In what follows, I (a) set out the principles in relation to security for costs applications, (b) outline the parties’ submissions on that issue, and (c) deal with the remaining issue concerning access to previous or other court files.
Security for Costs – General Principles
The principles in relation to orders for security for costs are conveniently set out in the recent Full Court decision in Bartsch & Redman.[2] Although stated to be in relation to such an application regarding an appeal, for current purposes, and having regard to what was said by the earlier and regularly cited judgment in Luadaka,[3] the same principles relevantly apply to the current matter. In Bartsch, at [6] – [7], the Full Court said:
[2] Bartsch & Redman (2014) FLC ¶93-584. See also the Full Court discussion in Evans v Rochford (2003) 30 Fam LR 336
[3] See Luadaka & Luadaka (1998) 148 FLR 421 at [61] – [63].
[6] Particularly given the self-represented status of both parties before us, we will begin by setting out the principles which govern the determination of an application for security for the costs of an appeal. Those principles were summarised by the Full Court in Sawer & Sawer [2007] FamCA 140 in the following way:
19. The power in this Court to make an order for security for costs is to be found in s 117(2) of the [Family Law Act 1975 (Cth)], which is in the following terms:
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] and (5) 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.
20. The provisions of s 117(2A) are as follows (- s 117(4) [4A] and (5) are not presently relevant):
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.
21. The authorities establish that in exercising the discretion to order security for costs, it may also be relevant for the Court to consider in addition to the financial circumstances of the parties and the other five specific matters mentioned in s 117(2A), the following matters:
a) the prospect of success of the litigation;
b) whether the claim for security is made bona fide;
c) whether or not an order for security would stifle the litigation;
d) whether or not the litigation may involve a matter of public importance;
e) whether or not there has been a delay in bringing the application for security;
f) whether there would be difficulty in enforcing an order for costs
…
[7] The principles enunciated by the Full Court in Sawer were drawn from the previous Full Court decisions of Luadaka & Luadaka (1998) FLC 92-830, Jones and Jones (2001) FLC 93-080, and Adult Guardian and Mother's Parents and B and Child's Representative (2002) FLC 93-116, and have been applied in subsequent Full Court decisions such as Halsbury & Halsbury [2008] FamCAFC 170, Shaw & Muller [2009] FamCAFC 118, Gerber & Bradley [2011] FamCAFC 206, Galloway & Steel [2011] FamCAFC 243, Palma & Caleffi and Anor [2011] FamCAFC 174, and Fenton & Marvel [2012] FamCAFC 150.
Outline of Submissions
Summarily stated, the Applicant submitted that she had been put to significant extra expense in the preparation of the matter, on more than one occasion because of the Respondent’s conduct. That “conduct” (my words) was (a) the two applications by the Husband to vacate the trial, and (b) the Husband resiling from previous indications to the Court – and formally recorded by the Court - that the existence of the de facto relationship was conceded. Each vacation of the trial(s), notwithstanding awards of costs in her favour, has inevitably led to additional costs being incurred to address the change in position of the Husband and the extra evidence he has filed.
In relation to the financial position of the parties, the Applicant notes that the Husband contends that he now has equity in the property at Property C of $8000.00, while the Wife has obtained a valuation of that property, which (in the light of that valuation) would put the equity at something approximating $103,000.00.
The Respondent’s Counsel is acting pro bono, while the Applicant is funding the litigation herself, notwithstanding that she is currently unemployed. The Husband’s financial position is otherwise unknown, according to the Wife’s submissions.
According to principle, an order for security for costs is intended or designed to “secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other.”[4] The Wife seeks an order for security in the sum of $30,000. She also seeks an order in relation to the costs “thrown away” in relation to the trial that was vacated on 20th August 2015 in the sum of $8490.00.
[4] Luadaka 24 Fam LR 340 at [62].
For the Husband’s part, again summarily stated, opposing the Application for security for costs, he submits that his position is as per his original Response, filed in June 2014, in which he sought a declaration that there was no de facto relationship. All that has happened, subject to the matter of instructions to his former legal representatives, is more of a “refinement” of that original position.
The Husband also says that he is seeking to clarify the position of his instructions with his former lawyers who made the formal concession in Court on 25th March 2015. The Husband’s submissions seek to draw something from the date of that concession in Court being the same date that the Husband ceased being represented by his [former] lawyers. I confess that the correlation raised is not immediately clear to me.
Further, the Husband submits that he may have some difficulty (i.e. limited financial capacity) in providing security if ordered to do so.
Security for Costs: Consideration & Disposition
Earlier in these reasons I set out the general principles that apply to such applications, accepting that ultimately, the Court’s decision is discretionary.
In addition to the matters set out in s.117(2A) outlined earlier, for ease of reference I record again the additional matters for consideration summarised by the Full Court in Bartsch:
a) the prospect of success of the litigation;
b) whether the claim for security is made bona fide;
c) whether or not an order for security would stifle the litigation;
d) whether or not the litigation may involve a matter of public importance;
e) whether or not there has been a delay in bringing the application for security;
f) whether there would be difficulty in enforcing an order for costs
By reference to the matters highlighted by the Full Court I note the following:
(a)I can make no assessment of the prospects of success of the substantive application. However, by way of observation only, the Husband’s concession(s) regarding the existence of a de facto relationship will be the subject of detailed examination at the trial, as will be his general conduct in of these proceedings, which seems, I stress by way of observation only, to have some difficulties, not least in the light of the High Court’s decision regarding “conduct” in Sidhu v Van Dyke;[5]
(b)Further, and always subject to evidence, if the Husband’s former solicitors provide evidence (e.g. a file note) that confirms on either or both occasions that the Husband’s instructions were as recorded by the Court, to speak somewhat colloquially, it would very likely be “game over” for the Husband on the issue of conceding jurisdiction. Presumably too, if the converse was to apply and the Court was erroneously or improperly advised – on two separate occasions – presumably the Husband may have action against his former solicitors. But if that were to be the case, it may (I stress “may”) add some element in the Wife’s favour because, for a significant period of time during the current litigation, she has acted on the basis of what the Husband’s former solicitors advised the Court, firstly during the conciliation conference on 11th December 2014, and again on 25th March 2015.
(c)I do not understand there to be any challenge to the bona fides of the Application for security;
(d)Whether or not there is a risk that an order for security may stifle the litigation is partly a question of fact, but also, in my view, related to the conduct of the litigation, which is addressed below;
(e)I do not understand that any question of public importance arises in this matter;
(f)There has been no delay in bringing the application.
[5] Sidhu v Van Dyke (2014) 251 CLR 505.
To speak more generally, the history of the matter, including (a) the number of times the matter has been listed for trial only for it to be aborted, on the Husband’s application, at very late notice to the Wife, (b) the criminal charges against the Husband, which involved questions of his honesty and his conduct towards the Applicant Wife (in relation to some of which he was found guilty), and (c) given that the Husband, through his then solicitors, had conceded the existence of the de facto relationship and then later withdrew this concession, thereby changing significantly the nature of the case the Wife was/is required to meet, in my view, all point to the appropriateness of there being an order for security for costs.
In modern-day litigation generally, and including much modern-day family law litigation, the amount claimed for security of $30,000 is relatively modest. However, given the modesty of the asset pool, in my view the figure awarded should be $25,000.00. That sum must be paid to the Wife’s solicitor’s trust account within 90 days of the date of these orders.
Still on the question of costs generally, order 5 of 20th August made provision for submissions regarding the quantum of costs in the Wife’s favour for the directions hearing on that day and for the further vacated trial on 21st August. The Husband made no submissions in accordance with the orders of 20th August 2015. The Wife made submissions which seek an order for costs in her favour in the sum of $8,490.00.
In the circumstances where (a) there is an order for costs in the Wife’s favour following the vacating of a second trial date, (b) there are no submissions for the Husband in relation to the quantum of them, and (c) there is an outline of how the Wife’s costs – which are very modest in my view – are calculated, there should be a further order that the Respondent pay the Applicant’s costs in the sum of $8,490.00. This sum is to be paid to the Wife’s solicitor’s trust account within 60 days.
Given the history of the matter, the most appropriate course, in my view, is to stay the currently listed hearing of the matter next April until (a) the costs of the aborted hearing of 21st August, and (b) the security for costs in the sum of $25,000.00 are both paid, with both sums to be paid in accordance with the time-frame, and in the manner, specified in each case.
Applications for Access to Previous/Other Files
The Wife seeks access to the files from the ACT Magistrates Court regarding the criminal proceedings involving the Respondent.
In my view, precisely because those proceedings involve matters that relate directly to the Wife and the Husband’s conduct towards her, access to those files is important and likely to be directly relevant to matters that arise in the current proceedings. Accordingly, to the degree necessary, and in the light of the notation to the orders made on 20th August, the Applicant’s lawyers are granted access to the file(s) from the ACT Magistrates Court relating to the Respondent’s charges heard against the Husband in that Court (the files as per the file numbers specified in Counsel’s submissions).
The Respondent seeks access to a family law file from 2009 that involved the Wife and a previous partner. He also seeks access to a file from the ACT Magistrates Court in relation to a file that dates from 2008. On any version of events, the files sought relate to matters and events that pre-date the commencement of the relationship [as alleged] between the parties.
In my view, precisely because the files sought by the Husband, relatively speaking, are from so long ago, I do not see their direct relevance to the matters that this Court is required to determine in the current litigation. Accordingly, the Court refuses the Husband’s Application for access to such files.
There is one final matter to record, particularly having regard to the small size of the asset pool, and the disproportionate resources consumed by all, including those of the Court. In an attempt for sanity and common sense to prevail rather than incurring further costs, the parties are to attend a conciliation conference on 16 December 2015 at 2:15pm.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 12 November 2015
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