HALL & HALL

[2017] FamCA 217

FAMILY COURT OF AUSTRALIA

HALL & HALL [2017] FamCA 217

FAMILY LAW – PROPERTY – interim orders – whether the Family Court has power to stay an order of costs made by the High Court – where the husband argues there is no jurisdiction to stay the operation of the costs order – where the Court has power under section 114(1) Family Law Act 1975 (Cth) to restrain the husband from taking action to enforce the payment of the costs order – where there is no evidence that the wife is compelled to repay her liabilities with any priority – where there is no good reason to restrain the husband from seeking to enforce the costs order.

Family Law Act 1975 (Cth) s 105, 114
Judiciary Act 1903 (Cth) s 26
Family Law Rules 2001 (Cth) r 20.01
High Court Rules 2004 (Cth) r 50.01

Knight v FP Special Assets Ltd (1992) 174 CLR 178

APPLICANT: Ms Hall

RESPONDENT: Mr Hall

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 7 April 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 16 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kari

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs West

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. The wife’s Application in a Case filed 5 January 2017 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3671  of 2013

Ms Hall

Applicant

And

Mr Hall

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction 

1. The wife issued proceedings by way of an Appeal in the High Court of Australia number A7 of 2016 from a decision of the Full Court of the Family Court in Appeal number SOA42 of 2014.  Judgment of the High Court was delivered on 8 June 2016 in Hall v Hall (2016) HCA 23. The wife’s Appeal was dismissed with costs. A certificate of taxation was sought by the husband and on 19 December 2016 the taxing officer assessed and allowed the husband’s costs at $146,648.34.

2. The wife filed an Application in a Case on 5 January 2017 seeking the following primary order:-

   (1)That the husband be restrained and an injunction granted restraining him from taking any action to enforce the payment of costs assessed against the wife in respect of proceedings in the High Court of Australia pending the resolution of proceedings in this Court.

3. The wife did not object to the assessment of costs, but seeks that it be dealt with at the same time as the property proceedings are resolved whether by agreement or order.

4. The husband filed a response on 10 March 2017 seeking that the wife’s application be dismissed.

BACKGROUND

1. The substantive proceedings are listed for final hearing on 8 May 2017 in respect of property settlement and parenting issues.  As at the date of the hearing trial affidavit material had not yet been filed and it is difficult to assess even the broad parameters of the financial dispute between the parties.

2. Whilst not contained in her affidavit, the wife advised the Court that a property located at GH Street, Suburb HI (“the Suburb HI property”) had been on the market for sale for some considerable time, but of recent date a contract has been signed and the settlement is listed to occur on 28 April 2017.  The net proceeds of sale are likely to be significant and in any event more than the assessed costs.

3. I extended time to the husband to reconsider the orders sought in his application to include an order that his costs be paid directly from the net proceeds of the Suburb HI property.  On 21 March 2017, the husband elected not to amend his application.

4. On that basis judgment was reserved. 

5. There is little assistance provided in the wife’s affidavit in support of her application.  Paragraph 6 and 7 refer to her affidavit and financial statement filed on 9 August 2016 and I accept that her financial position has not altered significantly other than a continuing indebtedness to her brother in respect of monies provided for her day to day living expenses and an increasing liability in respect of her legal fees.

6. Her position is summarised by her assertion that she does not have sufficient funds to pay the costs of the High Court action.  The affidavit preceded the sale of the Suburb HI property.

LEGAL PRINCIPLES

1. The High Court has power to make an order for costs under s 26 of the Judiciary Act 1903 (Cth). The exercise of the Court’s discretion in respect of costs is guided by Rule 50.01 of the High Court Rules 2004 (Cth) (“High Court Rules”). The discretion is not subject to any limitation other than it must be exercised judicially: see Knight v FP Special Assets Ltd (1992) 174 CLR 178.

2. The High Court Rules make provision for an order to be enforced in the same way as a judgment of the Court. The Family Court may enforce all decrees made under the Family Law Act 1975 (Cth) (“the Act”). Such decrees may be enforced by any court having jurisdiction under the Act pursuant to s 105(1) of the Act. A decree includes a “judgment or order”. The Family Court shall not entertain the enforcement of an order made by another court unless the order is registered in the Family Court in accordance with the regulations; s 105(2) of the Act.

3. Under the regulations the Family Court may enforce an “obligation to pay money” pursuant to Rule 20.01(1) of the Family Law Rules 2001 (Cth) (“the Rules”).  An obligation to pay money includes money owed by way of costs, including the costs of enforcement.  The Family Court may enforce an obligation to pay money where the obligation arises “under the [Family Law] Act, the Assessment Act or the Registration Act”.

4. It is argued on behalf of the husband that no power exists for the wife to seek a stay of the operation of the costs order and given that it has not been registered in the Family Court, s 105(2) of the Act would prevent the Family Court from considering its power to enforce (including its’ discretion to decline enforcement).

5. Whilst that submission is correct, it is arguable that s 114(1) of the Act would provide the jurisdiction to restrain the husband from taking any action to enforce the payment of the costs order.

6. An order of injunction should be used sparingly and only if a proper basis exists.  The wife’s opposition to the costs order and any attempt the husband may make to enforce same arises from her financial position as at the date of her affidavit.  That position has now changed in that the wife anticipates receiving the net proceeds of the sale of the Suburb HI property on 28 April 2017.  It is not a matter for the Court to speculate that the wife may have other pressing commitments, or that even with the receipt of the net proceeds of sale her financial position is still parlous.

CONCLUSION

1. Whilst the husband argues that “justice delayed is justice denied”, he does not seek that his costs be paid from the net proceeds of sale of the Suburb HI property.  Whilst I accept that the wife has pre-existing debts to her brother (and also in respect of her legal fees), there is no evidence that she is compelled to utilise her resources to repay her liabilities with any priority.

2. There is no evidence as to the manner in which the husband seeks to enforce the costs order and in any event whilst the husband accepts the wife’s undertaking to the Court that she will hold the proceeds of the Suburb HI property (to the extent of the costs order plus interest) pending trial.

3. Accordingly, there is no good reason to restrain the husband from taking any action to enforce the payment of costs and I propose to dismiss the wife’s application in a case.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 April 2017.

Associate: 

Date:  7 April 2017