GULL & GULL

[2016] FamCAFC 18

FAMILY COURT OF AUSTRALIA

GULL & GULL [2016] FamCAFC 18

FAMILY LAW – APPEAL – where an adjustment was made by the trial judge to reflect a failure by the appellant to comply with orders which would have provided funds to the respondent at an earlier time – where the trial judge also quantified previously unquantified costs orders – principles for interfering with costs orders.

Family Law Act 1975 (Cth) ss 79A(1)(c), 117(2)

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Rules 2004 (Cth)

APPELLANT: Ms Gull

RESPONDENT: Mr Gull

FILE NUMBER: MLC 10581 of 2008

APPEAL NUMBER: SOA 51 of 2012

DATE DELIVERED: 22 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: Faulks DCJ, May and Bennett JJ

HEARING DATE: 16 October 2013

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 June 2012

LOWER COURT MNC: [2012] FamCA 431

REPRESENTATION

FOR THE APPELLANT: Ms Gull (in person)

COUNSEL FOR THE RESPONDENT: Mr R.G. Weil

SOLICITOR FOR THE RESPONDENT: Vernon Da Gama & Associates

Orders

1. The appeal be allowed in part.

2. Paragraph 1(b) of the orders made on 8 June 2012 be set aside and in lieu it is ordered that the wife pay the husband’s costs of and incidental to the application of the husband contained in paragraph 1(f) of the Amended Application filed 9 May 2012. Such costs to be assessed pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).

3. Paragraph 1(d) of the orders made 8 June 2012 be set aside.

4. The husband repay to the wife such sum received by him by reason of paragraph (1)(b) in excess of the assessment and the sum of $555 as ordered in paragraph (1)(d) of the orders made on 8 June 2012.

5. There be no order as to costs of the application for security for costs and of the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gull & Gull has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 51 of 2012
File Number: MLC 10581 of 2008

Ms Gull

Appellant

And

Mr Gull

Respondent

REASONS FOR JUDGMENT

Introduction  

1. In an Amended Notice of Appeal filed 3 August 2012 Ms Gull (“the wife”) appeals against Orders 1 and 2 made by Cronin J (the primary judge) on 8 June 2012.

2. The hearing before Cronin J related to whether the Court should exercise its discretion pursuant to s 79A(1)(c) of the Family Law Act 1975 (Cth) (“the Act”), to set aside final property orders because of the wife’s failure to carry out obligations imposed on her under the orders. The husband also sought an order for costs against the wife.

3. His Honour found that the wife had indeed defaulted in fulfilling her obligations under the orders, and because of the financial effects of this default on the husband, it was just and equitable for that order to be varied from its original terms.

4. The trial, before Mushin J (the trial judge), culminated in orders being made on 19 March 2008. A significant issue between the parties was whether money in India deposited in investment banks should be repatriated to Australia and divided between the parties, or whether the division should take place in India. The trial judge decided the money should be repatriated to Australia.

5. In paragraph 1, Cronin J ordered that paragraphs 2 and 3 of the final property orders be varied, so as to require the wife to pay $111,435.00 to the husband, consisting of the following:

   a)$50,000 pursuant to s 79A(1)(c) of the Act to place the husband in the position he would have been in had the wife not defaulted;

   b)$60,000 by way of costs;

   c)$880.00 to discharge the costs order made on 28 February 2005; and

   d)$555.00 to discharge the costs order made on 6 October 2009.

6. In paragraph 2 the order provided that a further $22,000 of the repatriated funds be set aside by the husband’s solicitors to satisfy any taxation liability arising out of the firm acting as trustee. Any excess from this $22,000 was to be divided between the parties, 65 per cent to the wife and 35 per cent to the husband.

Background

1. Since the parties’ separation in either June 2001 or May 2004 (the final date of separation is disputed), [1] the interactions between the parties in this matter have been characterised by high conflict and litigation.

   [1] Gull & Gull [2008] FamCA 183 (19 March 2008) [1]–[3], [19]–[21].

2. In early 2001, before separation, the parties and their son migrated to Australia and subsequently became Australian citizens.[2] Prior to 2001, the husband had been living predominantly in Oman for work, while the wife and their son lived for extended periods of time in both Oman and India.[3]

   [2] Ibid [17].

   [3] Ibid [14]–[15].

3. Proceedings commenced in this matter when the wife applied to the Court seeking both parenting and property orders on 23 September 2004.[4] Prior to the hearing of that application the wife commenced further proceedings in the Family Court of Mumbai, India, seeking that the distribution of the parties ‘investment monies’ held in banks in India be determined in that Court.[5] The Mumbai Court delivered its judgment on 19 April 2005, finding that the ‘balance of convenience’ lay in the parties continuing litigation previously begun by the wife in Australia.[6] The wife then appealed that decision to the High Court at Mumbai who upheld the lower Indian Court’s decision, but made an order freezing the parties’ assets in India pending a decision of the Family Court of Australia.[7]

   [4] Ibid [8].

   [5] Ibid [9].

   [6] Ibid.

   [7] Ibid.

4. In making final property orders on 19 March 2008, the trial judge identified the net assets of the parties to be valued at $756,013.[8] The majority of these assets ($502,018) were contained in Indian bank accounts referred to by his Honour as “the investment monies”.

   [8] Ibid.

5. His Honour ordered that the net assets of the parties be divided between the parties as to 65 per cent to the wife and 35 per cent to the husband.

6. In addition, his Honour ordered that “Both parties sign all documents and do all things necessary to cause the investment monies to be repatriated from India to Australia”.

7. Having unsuccessfully appealed from this decision to the Full Court of the Family Court of Australia, the wife filed an application for Special Leave to the High Court of Australia. The application was refused in October 2009. There is no doubt that the wife deliberately delayed in complying with the orders of Mushin J. Ultimately the moneys in India were repatriated to Australia.

The Appeal

1. The wife in her amended Notice of Appeal filed on 3 August 2012 asserted the following grounds of appeal:

   1.The impugned judgment and order is against principles of justice and equity and does not consider all the facts and circumstances of the case.

   2.The impugned judgment and order is based on assumptions and conjecture and not evidence and material on record.

   3.The judge erred by making double orders against the wife to file her tax returns.  This has the effect of doubling the wife’s burden while letting the husband go scot free.  This is prejudicial to the wife.

   4.The judge erred by not making any orders against the husband to pay his tax returns for the period from June 2001 till 2011.  This is prejudicial to the wife.

   5.The judge erred by making orders against the wife in discharging the costs order made on 6 October 2009.

   6.The judge erred by accepting husbands (sic) legal costs which included the costs related to the child matter.

   7.The judge erred by blindly accepting the husbands (sic) statement of legal costs.  The legal costs stated by the husband were inflated costs.  GST has also been included in those costs.

   8.The judge erred in his judgment by judging that the wife is wholly unsuccessful.

   9.The judge failed to consider the final orders varied on 29 June 2010 and that such orders were sought by the wife in her application filed on 10 February 2010.

   10.The judge failed to consider the final orders varied on 14 December 2010 and that such orders were sought by the wife in her application filed on 10 February 2010.

   11.The judge failed to appreciate that the State Bank of India had released the funds in the husband’s personal account in February 2011.  The judge also failed to consider the banking rules and the delays associated with release of the funds from the State Bank of India.

   12.The judge erred by accepting the husband’s evidence that the police complaint lodged by the husband at [the] Police station had nothing to do with the release of the Finance.

   13.The judge failed to consider the delays in release of the funds from the […] Bank was due to the husband’s complaint lodged at the [the] Police station.

   14.The judge failed to consider the fact that wife’s mortgage liability has increased by $13,120 and such benefits were already received by the husband in the year 2008.

   15.The judge failed to consider the orders made by the Full Court on 30 April 2009.  The Order no 6 “No Order as to costs of and incidental to the application for a stay of the orders dated 19 March 2008”.

   16.The judge erred in deciding the interest component of the mortgage unnecessarily paid by the husband exceeds $50,000.

   17.The judge failed to consider the various requests made by the wife’s solicitors to the husband’s solicitor to do interim distributions of the funds available in the trust account.  Such requests were refused by the husband.

   18.The judge erred by not considering the financial hardships the wife has to face due to the order for costs being made against the wife.

   19.In my opinion throughout the case the judge has been biased against the wife and favoured the husband.  The husband has been blatantly lying throughout this case and the judge has been blindly accepting his statement.  As a result the orders passed by the judge do not reflect a balanced judgment.  The wife has been denied justice.

2. The wife was self-represented at the hearing of the appeal. The 19 Grounds of Appeal set out above reflect to some extent the difficulties that the wife had in coming to grips with the legal requirements of the appeal. Some of the “Grounds of Appeal” are not Grounds of Appeal at all, some are in the nature of a comment or a submission and some of the grounds overlap. 

3. Nevertheless, it is probably convenient to deal with them chronologically.

Grounds 1 and 2

1. At the beginning of the appeal it was put to the wife that Grounds 1 and 2 were not Grounds of Appeal but rather by way of introduction. She agreed. Formally therefore those Grounds are dismissed.

Ground 3

1. Ground 3 was elaborated upon by the wife in the course of the proceedings. It related to Order 2 imposed by his Cronin J:

   That paragraphs 2 and 3 of the said orders [those made by Mushin J on 19 March 2008 as varied] be further varied so that from the said repatriated funds, $22,000 be set aside by solicitors Vernon De Gama and Associates to satisfy any taxation liability arising out of the firm or its principal, acting as trustee for the said repatriated funds. 

2. The wife explained that she saw this as being a further obligation imposed upon her which was in some way a duplication of an order made by Cronin J previously on either 1 May 2012 or 1 March 2012 (it appears that the order was made on 1 March 2012 but the cover to the order says 1 May 2012). Those were not orders appealed against as the wife acknowledged during the course of submissions.

3. This appeal is against the orders of 8 June 2012. None of the orders on that date direct the wife to file a tax return. Rather Order 2 states that a sum of $22,000 be set aside to satisfy any tax liability. Counsel for the husband informed the court in the course of the appeal proceedings that the Commissioner for Taxation had since set this liability aside. This ground and the order sought in this respect is dismissed.

4. We would also mention that on 21 June 2013, in response to an application made by the husband, the Full Court made an order that there be a charge of $10,000 over the wife’s share of the money held by Vernon De Gama and Associates as security for costs. The wife received a distribution of 65 per cent of the $22,000 less the $10,000 held as security for costs and the husband received the remainder. As we intend to make no orders as to costs of the appeal, the solicitors for the husband are obliged to return the balance of the moneys to the wife forthwith.   

Ground 4

1. This Ground asserted that there had not been a reciprocal obligation imposed upon the respondent to file tax returns. As conceded by the wife this ground also related to earlier orders, specifically those made by consent on 1 March 2012, not to the orders appealed against. Accordingly, this Ground of Appeal is also dismissed.

Ground 5

1. There was some confusion in relation to this Ground relating to his Honour’s use of the word “discharge” in Order 1(d). It is obvious from the context that his Honour meant the word “discharge” to mean “satisfy” the costs order. 

2. However, leaving that aside, the reference relates to Order 4 made by Mushin J on 6 October 2009, which provided:

   The wife pay to the husband half of the monies to be paid by him pursuant to paragraph 3 hereof together with interest at the rate being charged by the Commonwealth Bank of Australia on an equivalent loan from the date of the husband’s payment until satisfaction in full.

3. Order 3, to which Order 4 refers states:

   The husband pay Mr [H’s] reasonable costs of such attendances and preparation and release of the Family Report forthwith with being called upon by Mr [H].

4. Order 4 so quoted does not quantify the amount to be paid pursuant to Order 3 only providing that half is to be paid by the wife. 

5. There are a number of issues. First, at no point in the orders made by the trial judge was the amount to be paid by the wife quantified – although the method of calculation was specified.

6. Secondly, the wife asserts, and it was not denied, that the report was never in fact prepared and no invoice ever issued. Thirdly, and possibly of greater concern is the fact that it became apparent during the course of the submissions on appeal that Cronin J had been misled during the course of the proceedings before him by counsel for the husband to the extent that his Honour was left with the impression that the trial judge had prescribed an amount. The most charitable construction that might be placed upon this unfortunate event is that those instructing counsel for the husband adopted what would have been the cost – to provide substance to the order for the purposes of the proceedings. The additional $555 about which the wife complains, might or might not, have satisfied Mushin J’s requirement for interest at a certain rate. It might also have represented GST although that is not clear. 

7. In any event, Order 1(d) made by his Honour based as it was on the incorrect information given to him by the respondent husband’s representatives did not properly represent an enforcement of the order made by the trial judge. Most likely there may not have ever been a cost incurred (because the report was cancelled) and through no fault of Cronin J, the order was neither justified nor appropriate. Ground 5 is upheld.

Grounds 6 and 7

1. Grounds 6 and 7 are to some extent interrelated. 

2. Cronin J, on 8 June 2012, in making the orders that he did was entitled (as his Honour carefully considered) to make orders, in effect, finalising matters between the parties including what may be loosely termed as “cleaning up” old costs orders. In our opinion there is no doubt that his Honour had power to make such orders provided they were soundly based. Again, his Honour was not assisted in his task by the information that was provided to him by the respondent husband’s representatives. 

3. The wife’s complaint in Ground of Appeal 6 was that the order that had previously been made about costs included costs relating to children proceedings and not to the proceedings to which his Honour referred. 

4. There was some support for the wife’s contention by reference to the dates referred to in the bill.

5. To the extent that matters relating to the child application were involved, his Honour’s order appears to have miscarried in part. However, it is to be noted that leaving aside the liability for costs for the time being, his Honour did not purport to engage in a precise mathematical exercise in determining what the quantum of the costs should be. 

6. The alternative for his Honour in making an order for costs would have been to make an order in what might be described as the “usual form” that is that the parties would either agree or in default of agreement that the costs would be assessed pursuant to the Family Law Rules 2004 (Cth). His Honour was concerned to avoid any further litigation for the parties and was entitled particularly given the wording of s 117(2) of the Act to make an order “as to costs”, as opposed to “for costs”.

7. The items identified by the wife in relation to the child matter amount to over $16,000 in total, a not insignificant amount.   

8. His Honour accepted (at [89]) that the husband had spent $49,500 after January 2011, an estimate was given of $60,000 for the proceedings in total. In [99] his Honour looked at the work that had been done up to January 2011 and then concluded that the work subsequent to that time would permit an adjustment upwards as an order “as to costs” of $10,500. 

9. However, any adjustment which we might make in relation to child matters could not properly reflect the generality of his Honour’s estimate, and the inclusion of the child component necessitates a proper assessment of costs on a party/party basis by the solicitors providing an itemised account to the wife. Should there be a dispute then an assessment would take place by a Registrar.

10. Grounds 6 and 7 were dealt with together during the course of the appeal hearing. There was an extended dialogue between the wife and the members of the Court about various matters in the bill including charges that were apparently not in accordance with the costs agreement between the husband and his lawyers. We note that it would have been open to the trial judge to have made an order against the wife on a solicitor/client basis but that is not entirely clear. 

11. The quantification of the order by Cronin J, in effect, made a costs order which was partly a solicitor/client order and partly an indemnity costs order. His Honour interpreted Mushin J’s order as a solicitor/client order although there was nothing in the order itself which would necessarily lead to that conclusion. The individual complaints made by the wife about the bill of costs itself are to some extent irrelevant as in accordance with our earlier determination it will be necessary for there to be an assessment of costs on a party/party basis by a Registrar. Thus, we find merit in grounds 6 and 7.

Grounds 8, 9, 10, 11, 12 and 13

1. Grounds 8 to 13 inclusive and a number of grounds following relate not to the quantum of costs, but rather to the wife’s liability for costs.

2. It should be noted at the beginning of the consideration of these matters that a costs order is essentially discretionary in nature. Ordinarily that discretion would not lightly be interfered with by an appeal court.

3. Section 117(2) and (2A) of the Act provide as follows:

   (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) 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.

   (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.

1. If an order is to be made as to costs or for costs the Court must take into account those matters that are relevant in s 117(2A).

Ground 8

1. Ground 8 directs this Court’s attention to what the wife says was an error on the part of his Honour in failing properly to take account of s 117(2A)(e). The situation is complicated by the fact that in her response to the husband’s application, which was the subject of the matters before his Honour, the wife cross-applied and sought some different orders. These were matters dealt with by his Honour in [103]-[105] of his judgment. In [103] his Honour rejected one of the claims (for $20,270) made by the wife. In [104] his Honour queried further the power to make such an order, the indemnity order that had been previously made would militate against the orders sought by the wife. To that extent in relation to that application she was wholly unsuccessful.

2. The further orders sought by the wife included orders relating to the withdrawal of complaints made by the husband against his brother-in-law which in some way involved the Indian Banks. His Honour correctly pointed out in [105] that there was no legislative basis under the Act demonstrated to him that gave him the power to make such an order. His Honour considered whether there was any power within s 114 of the Act. Cronin J, in our opinion, correctly determined that even if there were such a power it was not proper to make such an order because the complaint related to something to do with the wife’s brother. This was a matter his Honour had reviewed previously in his judgment.

3. In such circumstances, where his Honour indicated the wife had been wholly unsuccessful he was right in so far as he referred to the orders the wife was seeking in her own right. 

4. It is however true that the husband did not succeed completely in all that he was seeking from the Court. While he was wholly successful in a broad sense, the quantum of the costs he sought was not realised in his Honour’s orders. 

5. There is nothing under s 117(2A) which requires that an order for costs only be made in circumstances where a party has been wholly unsuccessful. His Honour was obliged to give consideration to this and the other matters under s 117(2A) and he obviously did exactly that. In combination with other matters, to which we will turn in a moment, there was justification for making an order for costs. The fact that Cronin J referred to the errors of each party’s claims, it is clear that the reasons for the order included other important factors including the wife’s conduct in failing to comply with orders (at [97]). There is no substance to Ground 8.

Grounds 9, 10 and 11

1. The argument advanced by the wife in relation to grounds 9 and 10 was somewhat complicated. It in fact related to orders that had been previously sought before the trial judge. These matters were clearly inextricably interwoven in the mind of the wife with the wrong conclusion that she had been wholly unsuccessful (Appeal Transcript, 16 October 2013, p24 l 1). That issue has been dealt with above and does not need to be re-examined. Even if the wife were not wholly unsuccessful there were relevant grounds for his Honour to make the order as to costs.

2. Ground 11 introduced a slightly different element to the extent that it was asserted that the learned Trial Judge had failed to take into account the fact that there were banking rules which also contributed to the delay in repatriation of the funds from India. Even if this matter had been argued before his Honour, and it does not appear that it was, his Honour found on the basis of a consideration of all of the relevant information in evidence before him that the wife was principally responsible for the default and in such circumstances his Honour was entitled to take the view that the responsibility for the failure to carry out the orders was almost exclusively the responsibility of the wife – with the consequences that flowed therefrom. 

3. The wife took issue with Cronin J’s conclusion that she was principally to blame for the failure of the funds to be repatriated. However, as was pointed out to the wife (Appeal Transcript, 16 October 2013, p29) she could not succeed in the appeal unless she was able to point to something that his Honour either took into account inappropriately or failed to take into account, again inappropriately in coming to his conclusions. It is not enough for her to say that she did not agree with the conclusion reached by his Honour. Her position in this regard has been irretrievably undermined by the concession made by her counsel before Cronin J that, after the High Court decision at least, her default was unjustifiable. As was pointed out to the wife (Appeal Transcript, 16 October 2013, p 32) she is bound by the concession her counsel made to the Court. It was not put to the witness (the husband) that what he was saying was incorrect and on that basis the wife is now bound by the answer that was given. 

4. Again as was pointed out to the wife this may be a matter between her and Mr Selimi who represented her in these proceedings but it is not a matter for this Court.

Grounds 12 and 13

1. These may be considered together. They involve two components. The first is that the “complaint” lodged by the husband to the bank(s) in India was at least in part to blame for the delay in the repatriation of funds. For the reasons set out above, his Honour was entitled to find that the predominant, if not exclusive, responsibility for the delay was the wife’s.

2. Secondly, to the extent that it is necessary to make it clear that it is so, his Honour found and, on the evidence in our opinion, was entitled to find, that the complaint did not relate to the wife but rather to the wife’s brother. Therefore, the husband’s “complaint” did not, relevantly, affect these proceedings or the enforcement of the orders, or the repatriation of the funds. There is no substance to these grounds.

Ground 14

1. The 19 March 2008 orders provided that the wife was to pay the mortgage, amounting then to $41,787, on their property. On 16 May 2008 the trial judge made orders that the husband be able to withdraw $8,246 from that loan, which he did on 28 July 2008. The wife argued before Cronin J that this was not proper, but Cronin J indicated that the wife would have to make a s 79A application to have it set aside, which she did not do. Notwithstanding the wife’s assertion to the contrary, order 5 sought by her on 21 May 2012 did not satisfy the description of an application made under s 79A. His Honour was entitled to so find and thus there is no basis to this ground.

Ground 15

1. Ground 15 was a complaint by the wife that the Full Court on 30 April 2009 had made an order, “no order as to costs of and incidental to the application for a stay of the orders dated 19 March 2008”. It is to be noted in this regard that this related to the application for a stay of the orders and not to the costs of the appeal as such. This again raised a situation where it is asserted that the figure that his Honour settled upon as to quantum of costs incorporated matters relating to extraneous applications to the one before him. That is a matter which if it is established could be dealt with on assessment by a Registrar. 

Ground 16

1. Order 1(a) made by Cronin J amounted to a variation of the original orders made as to the division of property occasioned by a failure on the part of the wife (as his Honour found to be the case) to comply with the previous orders. The Court has no power to make what may be loosely termed a “compensation order”. However his Honour was entitled, having made a determination that there were grounds for the original orders to be set aside, to substitute other orders that would properly do justice and equity between the parties. That is the course his Honour adopted. He acknowledged in the process that this was not capable of precise mathematical calculation but as his Honour said:

   67.The precise amounts are not relevant as this is not a damages claim nor should it be approached simply as a mathematical calculation.

2. His Honour gave some consideration to what was required to do justice and equity between the parties given the paucity of the evidence, the effluxion of time and the complications engendered by the actions both at law and otherwise of the parties. Cronin J rejected the argument from the husband that the husband should obtain both interest and also some compensation for the interest that he did have to pay on the mortgage. His Honour correctly pointed out that if any amount of money less than the full mortgage balance had been paid to the husband, paying that amount off the mortgage would have substantially reduced that mortgage and hence any interest that might be payable. However if the husband had paid off the mortgage, he would not at the same time have been earning interest on the sum as a deposit. To allow both components in compensatory adjustment would necessarily involve a double counting on the part of the husband. 

3. The evidence of the husband was that at the time of the orders made by the trial judge in 2008 the mortgage was some $207,000. In 2011 the sum owing was $201,000. During that period the husband had paid $42,800 in mortgage repayments (as his Honour found at [70]). His Honour was careful to point out that he had no precise evidence about what component of the repayments constituted interest, although it is obvious that the capital sum had been hardly reduced. The husband would not have been able to totally pay out the mortgage if the wife had not defaulted in her obligations about payment to him of other amounts. Hence when he said “based on the evidence” it is that this comment reflected only the information provided to him.

4. There was no direct evidence before his Honour about what interest might have been paid. The husband had paid $42,800 in principal and interest payments up to 22 January 2011. It would be reasonable for his Honour to extrapolate that the husband would have continued to make repayments at the same rate in the following 18 months to trial which would have been in the order of $20,000. The husband’s evidence was that the principal due under the loan decreased by $6,000 to 22 January 2011 as a result of the repayments to that date. A similar rate of reduction of principal would justify his Honour’s finding that “the interest component of mortgage unnecessarily paid exceeds $50,000.” His honour did what he could with the evidence available to him.

5. The wife was obliged to demonstrate that what his Honour said being the best he could do on the evidence before him was wrong. In default of her doing so, and in default of her offering any evidence during the course of the hearing it is difficult to see how his Honour’s discretion in this regard miscarried. Accordingly, Ground 16 is dismissed. 

Ground 17

1. Ground 17 in effect was an argument by the wife that she had made various offers about interim distributions and that if the husband had acceded to her various suggestions then he would have been able to mitigate his loss in some way.

2. The situation in relation to the various offers and cross-offers for interim distribution was confused. There was a failure on the part of each of the parties to respond to what appeared to be offers made by the other side. Again, his Honour was faced with conflicting evidence between the parties and he was in the circumstances entitled to rely upon his determination that the wife was “determined” to delay the repatriation of the money from India to Australia. See for example [19] of his Honour’s reasons. As was explained in [20] and [21] the various offers made by the wife were not in fact consistent with the orders that had previously been made. As his Honour pointed out

   19.She well-knew that the arguments about repatriation process were lost.

3. It is simply not the case that his Honour did not take account of, or consider, the offers that each of the parties had made. He did so, he took them into account and arrived at the conclusions he did. He was justified in doing so, in our opinion. 

Ground 18

1. This Ground in essence argued that Cronin J failed to properly take into account the fact that the wife had a serious medical condition and was not in the workforce. This it was said (correctly) is a factor properly to be taken into account under s 117(2A) of the Act. However, the relevant matter to be taken into account is the fact that the wife was not in the workforce not necessarily the cause for the wife’s not being in the workforce. His Honour was aware of the fact that the wife was not in employment. She led no specific evidence as to her medical condition let alone any specific expert evidence as to her condition. Even if she had done so, it is hard to see how that could have affected the determination other than to have added a qualification of permanence to her state of employability. While not disregarding that as being important, there was never any suggestion during the course of the proceedings that the wife would ever resume paid employment.

Ground 19

1. This ground asserted that the Judge was biased. The ground, as framed, provides no basis for appeal. It is a case of assertion of bias on the basis that the judge did not make findings against the husband and disagreement with determinations made by Cronin J. However, if in fact it were the case that the matters asserted in Ground of Appeal 19 had some validity (and the assertions are far from being justified on the evidence) this is a matter which should have been raised before his Honour during the course of the proceedings. The wife conceded that it was not so raised. This ground is dismissed.

Conclusion

1. Accordingly, except in relation to the matters set out above, the appeal is dismissed. 

2. The appeal is allowed against Order 1(b) of the orders made by Cronin J on 8 June 2012 to the extent that in substitution for the fixed sum we will order that “Paragraph 1(b) of the orders made on 8 June 2012 be set aside and in lieu it is ordered that the wife pay the husband’s costs of and incidental to the application of the husband filed 9 May 2012. Such costs to be assessed pursuant to Chapter 19 of the Family Law Rules 2004 (Cth)”.

3. The appeal is also allowed in relation to Order 1(d). That order should be set aside.

Costs

1. Should the appeal succeed, each of the parties sought certificates under the Federal Proceedings (Costs) Act 1981 (Cth). The wife has been successful but only to a minor degree and then not on a point of law but rather on a point of fact as to what was or was not included in various costs orders. In our opinion no certificate should be granted.

2. In so far as the respondent sought that the wife pay his costs of and incidental to these proceedings, while we accept that the wife at least appears to have a capacity to make a payment for costs and while we accept that neither party has the benefit of Legal Aid and we accept that the wife has been substantially unsuccessful (but not wholly), we take account of the fact that the husband’s lawyers to some extent (and we hope inadvertently) misled the trial judge in the course of the proceedings and thereby at least contributed to the dissatisfaction of the wife. We make no order as to costs.

3. The terms of the order for security made on 21 June 2013 would require that the sum of $10,000 held as security for costs should be released to the wife forthwith. After the assessment, such sum as has been paid by the wife in excess of that required should be repaid to her within 28 days.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, May & Bennett JJ) delivered on 22 February 2016.

Associate:

Date: 22 February 2016