HEARL & HEARL

[2019] FamCA 776

FAMILY COURT OF AUSTRALIA

HEARL & HEARL [2019] FamCA 776

FAMILY LAW – PROPERTY – Interim Orders

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Hearl

RESPONDENT: Ms Hearl

INDEPENDENT CHILDREN’S LAWYER: Ms Webb

FILE NUMBER: MLC 837 of 2018

DATE DELIVERED: 18 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 18 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Sayer Jones

COUNSEL FOR THE RESPONDENT: Ms Hearl

SOLICITOR FOR THE RESPONDENT: Clark Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: No appearance required

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: No appearance required

Orders

BY CONSENT IT IS ORDERED THAT:

1. Within 48 hours, the parties do all acts and things and sign all documents to transfer the Husband’s interest in the property situate at B Street, London (“B Street”) to the Wife at the Wife’s expense (“the transfer”).

2. Contemporaneously with the transfer, the parties do all acts and things and sign all documents to discharge and refinance the mortgage with C Bank secured against B Street into the Wife’s name.

3. Upon the transfer, the Wife indemnify the Husband with respect to any and all liabilities to C Bank for B Street.

IT IS FURTHER ORDERED THAT:

1. For the avoidance of doubt, paragraph 2(b) of the Order made on 5 December 2018 includes correspondence between the wife, the receivers, financial lenders and other relevant persons.

2. Until further order, the husband be and is hereby restrained from contacting directly or indirectly the receivers, financiers and/or lenders concerned with B Street or any other person referred to in correspondence made available pursuant to paragraph 4 of this Order and/or paragraph 2(b) of the Order made on 5 December 2018.

3. That the husband pay to the wife costs thrown away this day fixed in the sum of $1464 such payment to be stayed pending a determination of the financial proceedings when they will be adjusted against the husband’s settlement.

4. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

IT IS DIRECTED:

1. That the minute of consent orders as amended be marked Exhibit “A” and remain on the Court file.

NOTATION

A. The parties agree the overall adjustment of the parties’ interests in assets and liabilities, including B Street and the liabilities attached to B Street, is a matter for the discretion of the Trial Judge at Final Hearing.

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 Hearl & Hearl 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 MELBOURNE

FILE NUMBER: MLC 837 of 2018

Mr Hearl

Applicant

And

Ms Hearl

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. I have made Orders by consent in this matter on the interim disposition of a London property, and matters incidental there to. The wife seeks her costs of today thrown away fixed in the sum of approximately $2815. When calculated in accordance with Schedule 3 of the Family Law Rules2004 (Cth) it would appear to be more in the sum of $2400, being counsel’s fees of $1164, and four hours of solicitors’ time to attend to correspondence in the past few days.

2. The primary position under the Family Law Act1975 (Cth) (“the Act”) is that each party bears their own costs of proceedings, unless there are circumstances which justify an order that one party pay the costs of another. The Act is silent on the matters to be taken into account, but obviously regard cannot be had to extraneous matters. Matters must be relevant to the proceedings, and it is not unusual that relevant matter may resonate with the matters set out in s 117(2A) of the Act.

3. In this case, the wife says that the principle justification for an order for costs is that she was put to the expense of retaining counsel to appear today with an instructing solicitor to see the matter resolve early and without the need for a hearing.  It was made clear on the last occasion that this was to be a day for hearing only if a contested determination by the Court was necessary, and that I would take any application for an adjournment or for permission for the parties not to appear as late as necessary.  That is what I remember occurred on the earlier date, and I’m satisfied that there are circumstances which justify an order being made.

4. The next step is to consider, having regard to the matters in s 117(2A) of the Act, whether any order for costs should be made, and if so, the terms of the order. It is not necessary that any application for costs qualify under each one of the seven criteria to which the Court is required to have regard under s 117(2A). I need have regard only to the relevant criteria, and there may be, amongst those, one that stands out more than most in being determinative of an order for costs.

5. The financial circumstances of the parties is such that I am comfortably satisfied that neither party can afford the crippling costs of these proceedings.[1]  It is not lost on me, that the costs of proceedings may be used as leverage by one party against another which is also to be discouraged. 

   [1]Family Law Act 1975 (Cth) s 117(2A)(a).

6. The husband nor the wife are in receipt of legal aid. [2]  There is an Independent Children’s Lawyer who would be in receipt of legal aid, but her costs are not relevant for today. 

   [2]Family Law Act 1975 (Cth) s 117(2A)(b).

7. I have regard to the conduct of the parties to the proceedings in relation to provision of documents, inspections, directions, answering questions, and the like.[3]  In broad terms, the wife’s case could possibly sound under this particular provision, but what essentially it is, is that she has incurred costs today which, had the husband agreed to the orders earlier this week, she would have not incurred. 

   [3]Family Law Act 1975 (Cth) s 117(2A)(c).

8. The proceedings have not been necessitated by the failure of a party to comply with previous orders of the Court. [4] 

   [4]Family Law Act 1975 (Cth) s 117(2A)(d).

9. Section 117(2A)(e) is: “Whether any party to the proceedings has been wholly unsuccessful in the proceedings.” The husband has not been wholly unsuccessful today, but he has walked away with an Order which is, essentially, the Order that the wife sought on the last occasion with some minor finessing. The finessing aspect of it being apparent from the words, “For the avoidance of doubt” and the other Order that I have made for the husband’s benefit. It was common ground that those terms were implicit in other orders and added little.

10. I am not aware of any offer in writing about today, although both counsel were in Court and both parties were in Court. [5]  When I said on the last occasion that I was concerned about costs being incurred, I was concerned about the imposition of yet another day’s fees on the parties, and that there may well be costs implications when the matter was finally resolved.

    [5]Family Law Act 1975 (Cth) s 117(2A)(f).

11. On 15 October 2019, the wife was given permission by me to make an oral application, and she did so in the terms of a minute, which is exhibit “B”.  It sought the transfer to her by way of an interim part property settlement of a property in B Street, London.  It sought an order that the Registrar sign documents if the husband refused to do so.  At the time, Ms Hearl said her client required an opportunity to investigate the matter more fully.  It did not, from my perspective, which I concede is limited, appear that there was much for the husband to investigate if the wife was prepared to take over the responsibility of the property and try to rescue some of the equity which she says is in the property. 

12. Notably, Ms Hearl’ submissions referred to matters which appeared to me to be extraneous to the issue of transfer, and more relevant to underlying controversies between the parties about income and outgoings for various properties in London.  I made that apparent to Ms Hearl when the husband was in Court, in particular, my recollection is, in relation to the receipt of a certain amount of lease payments for the property.  I was perplexed as to what the wife had done with certain rental income of the property which would be relevant on the issue of whether or not the property ought now be transferred to her in an endeavour to preserve some assets relevant for the financial proceedings.

13. In the event, today the matter was listed, and the parties, in fairly quick time, produced a minute of order by consent.  I am satisfied that the minute replicates more or less what the wife wanted on the last occasion.  It does not include a power for the Registrar to sign on behalf of the husband, but I am satisfied that that has not been a matter of controversy between the parties in any event. 

14. It does seem to me that the wife has been put today to the unnecessary expense of retaining counsel and solicitor to appear on her behalf.  I recognise that the husband has chosen to go on affidavit, which I accept would have incurred additional legal expenses for him, and he is also represented today by counsel and solicitor but those are choices for him. 

15. The wife’s application is in two parts.  One is for negotiations or correspondence for four hours from, necessarily, on 15, 16, or 17 October 2019.  I am not satisfied that those costs were necessarily costs thrown away, and I do not propose to make an order for those.  They stand in lieu of the wife having to make an application in formal terms (as her application was permitted to be oral).

16. I conclude that the wife should recover the reasonable cost of counsel for today and instructing solicitor to attend court and I will make orders in those terms.  Counsel for the wife does not oppose a stay until final settlement so I will make orders in those terms.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 18 October 2019.

Associate:

Date:  25 October 2019