Hill and Ford and Anor

[2019] FCWA 132

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: HILL and FORD & ANOR [2019] FCWA 132

CORAM: TYSON J

HEARD: 21 and 22 MARCH 2019

DELIVERED : 6 JUNE 2019

FILE NO/S: PTW 744 of 2018

BETWEEN: MS HILL

Applicant

AND

MR FORD

Respondent

AND

MS PALMER

Third Party

Catchwords:

FAMILY LAW - UNDERTAKING AS TO DAMAGES - Assessment of compensation pursuant to Undertaking as to Damages - Wife under a disability - Wife commenced proceedings through a Case Guardian - Ex parte injunctions made on the wife's application restraining access to matrimonial monies - Undertaking as to Damages given - Wife's Case Guardian since discharged and a different Case Guardian appointed - Where the husband seeks damages allegedly arising from the ex parte injunctions including lost interest and legal costs - In the alternative the husband seeks costs under the Family Law Act - No orders for damages made - No orders for costs made - Case turns on its own facts

Legislation:

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

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Kavanagh Lawyers
Respondent	:	Thomas Gatter
Third Party	:	Gregory Wolff Solicitors

Solicitors:

Applicant	:	Did not participate
Respondent	:	Mr Nicholls QC
Third Party	:	Mr Hooper SC

Case(s) referred to in decision(s):

Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (Air Express) (1981) 146 CLR 249

B & B [2015] FCWA 65

Blueseas Investments Pty Ltd & Mitchell & McGillivray (1999) FLC 92-856

Braithwaite & Braithwaite [2007] FamCA 468

Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225

Collins & Collins (1985) FLC 91-603

Fitzgerald & Fish (2005) 33 Fam LR 123

Greedy & Greedy (1982) FLC 91-250

I & I (No 2) (1995) FLC 92-625

Indoor Holdings Pty Ltd v Bennett [2010] WASC 242

Kannis & Kannis (2003) FLC 93-135

Kohan & Kohan (1993) FLC 92-340

Lenova & Lenova (Costs) [2011] FamCAFC 141

Luadaka & Luadaka (1998) FLC 92-830

Madin & Palis (Costs) [2016] FamCAFC 25

Minerology Pty Ltd v Sino Iron Pty Ltd [No 18] [2018] WASC 307

Munday & Bowman (1997) FLC 92-784

Read v Read [1944] SASR 26

White & Green (No 2) (2009) 41 Fam LR 185

Yunghanns & Yunghanns (2000) FLC 93-029

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1 [Mr Ford] [“the husband”] and [Ms Hill] [“the wife”] married [in] 2005. In early 2017, the wife was diagnosed with an aggressive, incurable form of dementia.

2 The wife, through her Case Guardian [Ms Palmer], subsequently commenced Family Court proceedings seeking orders by way of alteration of property interests. At the time she filed an Undertaking as to Damages and sought urgent interim orders.

3 On 1 February 2018 the application came before the Court. The Acting Magistrate made a number of orders on an ex parte basis:

•Appointing [Ms Palmer] as [the wife’s] Case Guardian.

•Restraining [the husband] from using any Enduring Power of Attorney and Enduring Power of Guardianship to deal with any of [the wife’s] funds.

•Requiring [the husband], to restore funds withdrawn by him from various bank accounts as identified and that the husband be restrained by injunction from using any of the funds.

•Requiring $500,000 be paid to [the wife] by way of partial property settlement and subject to [the husband’s] compliance with the orders, he was to receive the same amount.

•[The husband] make items available for collection for [the wife].

•[The husband] provide disclosure.

•Following compliance with the orders, the parties were restrained by injunction from dealing with all of their bank accounts, without the prior written consent of the other party, or their legal representative, or Case Guardian.

4 The husband unsuccessfully sought to set aside those orders. Since then, the wife has indicated she no longer wished to separate and has otherwise been ambivalent about her position. Ms Palmer then sought to be discharged as the wife’s Case Guardian and the wife’s adult son, [Mitchell], has been appointed.

5 Ms Palmer now seeks to be released from her Undertaking. The husband seeks that Ms Palmer compensate him for losses he claims to have has suffered as a consequence of the injunctions. The husband’s losses include lost interest, costs associated with the wife’s care, and his and the wife’s legal costs. Mitchell, as the wife’s Case Guardian, has not sought to participate in these matters, but he is supportive of the husband.

6 The proceedings fall to be determined pursuant to the Family Law Act1975 (Cth). The issues in dispute and which I need to determine can be summarised as follows:

•Should Ms Palmer be required to pay compensation to the husband in respect of any losses allegedly incurred by him?

•Should Ms Palmer be required to pay any contribution towards the husband’s costs?

•Should Ms Palmer be released from her Undertaking?

•If an order is made for Ms Palmer to pay costs and/or damages, should she be indemnified out of the wife’s property?

•Should the Court discharge additional orders made on 1 February 2019?

WHAT ARE THE ORDERS SOUGHT?

7 The husband seeks orders in terms of his minute filed 15 March 2019. He seeks Ms Palmer pay to him $191,404.86, or various alternatives in terms of fixed sums and costs. The amount is said to represent the husband’s losses being:

(a) NDIS claim $66,554.68

(b) Lost interest $22,167.50

(c) Legal costs in substantive proceedings to

28 May 2018 $37,951.67

(d) Legal costs of enforcement of Undertaking $35,000

(e) The wife’s legal costs in substantive proceedings $29,731.01

8 He proposes that upon payment, Ms Palmer then be discharged from her Undertaking. He seeks to discharge additional orders made on 1 February 2018.

9 Ms Palmer seeks orders in terms of her amended minute filed 30 October 2018. She seeks to be released from her Undertaking with effect from such date and on such terms as the Court considers appropriate. If she is ordered to pay compensation, she seeks to be indemnified from the wife’s estate. She opposes any application for costs. If she is ordered to pay any costs, she seeks to be indemnified from the wife’s estate. She seeks that the husband pay her costs from 16 April 2018.

WHAT IS THE EVIDENCE RELIED UPON?

10 Ms Palmer relies upon her affidavits filed 29 January 2018, 16 February 2018, 9 April 2018, 30 October 2018 together with her Undertaking as to Damages filed 29 January 2018. The husband relies upon his affidavits filed 9 February 2018, 27 March 2018, 12 June 2018 and 28 August 2018, together with the affidavit of Mitchell filed 12 February 2018. Each of the parties and Mitchell attended trial and were cross-examined.

WHAT ARE THE RELEVANT FACTS AND CHRONOLOGY OF ALL RELEVANT PROCEEDINGS?

11 The husband was born [in] 1955. He is 64 years of age and is retired, having previously worked as [a] [manager]. The wife was born [in] 1960. She is 58 years of age and is also retired. The wife previously worked as [an] [administrator] for a [research organisation].

12 The wife has three siblings: [Ms Abbott], [Mr Wake] and Ms Palmer. She was previously married to [Mr H] and has two now adult children: [Caleb] born [in] 1985 and Mitchell born [in] 1987. The wife and husband divorced in 2005. The husband was previously married to [Hillary] who had two children from a previous marriage. The husband maintains a relationship with his adult stepsons: [Nathan] and [Jeffrey].

13 The husband and wife married in 2005. They moved to [Country B], to enable the wife to pursue work opportunities, where they remained until 2012, when they returned to [City A, Australia]. The wife then established a business through [the] [S trustee company], but conducted limited work from that time. The husband continued to work as a manager.

14 From 2014 the wife began experiencing health difficulties, which manifested in the loss of both numeracy and short-term memory. Between late 2016 and 2017 the wife attended upon a number of medical specialists and was diagnosed with an early neuro-degenerative disorder.

15 In 2017 the husband and wife relocated to Perth. The husband subsequently took steps to register the wife with the National Disability Insurance Service.

16 In 2017 the wife voiced to Ms Palmer, her mother and other family members, concerns about her marriage and expressed a desire to separate. At the wife’s request, in September 2017, Ms Abbott and Ms Palmer assisted the wife to obtain legal advice. In doing so Ms Abbott and Ms Palmer helped the wife to gather information, to better understand her financial position. They learnt the wife and husband’s joint financial position included:

(a) A self-managed superannuation fund, [Ford & Hill] Superannuation Fund, which as at June 2016 had net assets of $6,095,746;

(b) A Westpac credit card with a limit of $33,500;

(c) A joint HSBC account, with a balance of $525,707.16 as at 19 September 2017; and

(d) An interest in a number of Commonwealth Bank accounts. Ms Palmer acknowledged there was some uncertainty as to which accounts were part of the SMSF.[1] It appeared outside of the SMSF, was:

(i)S trustee company account with a balance of $193,025;

(ii)a joint CBA Net Bank saver account with a balance of $1,749,219.42; and

(iii)a joint CBA personal account with a balance of $409,715.75.

[1] Ms Palmer’s affidavit filed 29 January 2018, paragraph 31(d).

17 The husband was also the beneficiary of a Com-Insure policy secured over the wife’s life, with the benefit of $944,393. The wife’s solicitors sought that she undertake a medical assessment as to her legal capacity. The wife declined to do so and no further steps were then taken.

18 [In] December 2017 the wife executed a document appointing the husband as her Enduring Power of Attorney. The wife told her family she was too embarrassed to admit she was not aware what she was signing, which was witnessed by her friend, who was visiting from [interstate].

19 In January 2018 the wife again approached her family and sought assistance to separate from the husband. The wife’s solicitors explained it was necessary for her to complete a medical assessment, which she agreed to do.

20 [In] January 2018 the wife signed an Enduring Power of Guardianship in favour of Mitchell, witnessed by the husband.

21 [Later in] January 2018 Ms Hill rang her mother, in distress claiming she was going to be placed into full-time care. [Ms Hill’s mother] collected her. In subsequent discussions, the husband asked if the wife could stay with her mother for the week. The wife raised concerns that the husband was planning to employ someone she had not met, as a live-in carer.

22 Ms Palmer offered to assist Mitchell and the husband to prepare an agreement for the proposed carer and did so. Ms Palmer alleges Mitchell attempted to invoke his powers of guardianship and directed her not to consult with the wife about the agreement.

23 On 23 January 2018 [Dr M] assessed the wife as having a reasonable understanding of the consequences of separating from the husband, noting she identified she would require new accommodation and a carer. He considered the wife had capacity to authorise the medical assessment, she had a limited capacity to provide instructions, but she had the capacity to provide instructions as to the distribution of her estate. That same day, the husband contacted the wife’s solicitors, seeking legal advice.

24 On 24 January 2018:

(a) The firm advised the husband they were unable to act for him, due to a conflict of interest.

(b) Ms Palmer, the wife and Ms Abbott met with solicitors, who were instructed to write to the husband advising of Ms Palmer’s intention to separate, to urgently commence proceedings in the State Administrative Tribunal, to revoke any former Enduring Powers of Attorney and Guardianship and to appoint Ms Palmer and Ms Abbott into those roles and to urgently commence Family Court proceedings to appoint a Case Guardian and to protect her entitlements. In accordance with those instructions, the solicitors wrote to the husband on 24 January 2018, by email.

(c) Ms Abbott and Ms Palmer went to HSBC and CBA and obtained statements for the wife’s personal and joint bank accounts. The bank statements revealed that:

(i)From at least November 2017 the husband had been withdrawing on an almost daily basis $1,000 from the HSBC account. Between November 2017 and January 2018 his withdrawals totalled $30,000. On 23 January 2018 the husband withdrew $400,000 which was transferred to another account.

(ii)On 24 January 2018 the husband withdrew $185,000 from the wife’s S trustee company account.

(iii)From 6 December 2017 the husband had been making regular withdrawals of $1,000 from the joint CBA personal account. Between December 2017 and January 2018 the withdrawals totalled $18,000. On 24 January 2018 he withdrew $230,000 which was transferred to another account.

(iv)Between 23 and 24 January 2018 the husband withdrew in separate transactions, $590,000, $1,000,000 and $150,000 from the joint Net Bank Saver account which was transferred to the joint CBA personal account.

25 The husband says he learnt he could earn 3% interest, as opposed to 1.6% that was being paid on the joint HSBC account. He then opened a HSBC Super Saver account in his sole name. On 23 January 2018 the husband transferred $400,000 from the joint HSBC account and $590,000 from the joint CBA Net Bank account into his new HSBC account. The following day, HSBC told the husband they had reversed the $400,000 transfer, as a result of the matrimonial dispute.

26 On 24 January 2018 the husband transferred:

(a) $1 million from the joint CBA personal account into a new Westpac account in his sole name earning 2.4% interest;

(b) $450,000 and $230,000 from the joint CBA personal account into a CBA account in his sole name; and

(c) $650,000 from his CBA account into a NAB account in his sole name.

27 The husband says he did not receive the solicitors’ correspondence until after he was served on 2 February 2018, when he located the email in a spam folder.

28 On 24 January 2018 the wife returned to the parties’ property to retrieve her personal belongings, accompanied by Ms Abbott and Ms Palmer. The husband enabled the wife access, but refused to allow her family in. The husband called the wife’s son Mitchell by Skype from [Country A]. Afterwards, the wife told Ms Palmer she did not want to live with the husband because she did not love him, that she felt Mitchell was not doing the right thing, but she was unable to remember what she wanted to say when she was confronted by the husband and Mitchell together.

29 On 25 January 2018 Ms Abbott and Ms Palmer filed an application with SAT seeking guardianship and administration of the wife. On 29 January 2018 the husband applied to SAT for a declaration as to the wife’s capacity and in the alternative, seeking orders for him, or he and Mitchell jointly to be appointed as the wife’s guardian. The husband learnt of Ms Abbott and Ms Palmer’s application on 30 January 2018, when he was notified by SAT of the listing.

30 On 29 January 2018 SAT ordered, by way of emergency provision, that the Public Trustee act as the wife’s limited administrator, to protect and secure the wife’s bank accounts and apply those funds as required to meet her necessary expenses. In its reasons, SAT determined that the wife may be a person for whom a declaration should be made pursuant to s 64 (1) of the Guardianship and Administration Act 1990 (WA) and it was necessary to make immediate provision for the protection of her estate. SAT did not determine at that time whether the wife should be the subject of such a declaration.[2]

[2] Exhibit 4 SAT decision dated 29 January 2018.

31 On 1 February 2018 the matter first came before the Court on an ex parte basis. I have referred to the orders made. The orders recorded they were made on the basis of Ms Palmer’s Undertaking as to Damages, in the following terms:

I undertake to the Court that I am prepared to pay to any person such compensation as the Court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the Court or in accordance with such directions as the Court may make and to be paid in the manner directed by the Court

32 On the same day, the Public Trustee wrote to CBA and HSBC, advising of their appointment as the wife’s limited administrator and seeking a stop be placed on all of her accounts.

33 On 9 February 2018 the husband filed an Application seeking that the proceedings be dismissed or alternatively, that the orders of 1 February 2018 be stayed pending his application to have them set aside.

34 On 12 February 2018, Mitchell sought to be appointed as the wife’s Case Guardian, without admission as to the Court’s jurisdiction. On 13 February 2018 the matter returned to Court, for further Interim Hearing. Judgment was delivered on 20 February 2018. The Acting Magistrate declined to dismiss the proceedings or to stay the injunctions. Further orders were made for:

•[The wife], via her Case Guardian, to file and serve an amended Form 1.

•[The husband] to facilitate the return of [the wife’s] property.

•The Undertaking “remain in full force and effect”.

•[The husband] to file and serve his responding documents.

•The parties jointly appoint a medical expert to undertake an assessment of [the wife] and prepare a report addressing agreed terms of reference, with the costs to be shared.

•The orders be provided to SAT and the Public Trustee.

35 On 22 February 2018, the orders made on 1 February 2018 were varied and orders made for:

•Paragraph 3(a) of the interim orders sought by the Applicant in her Form 1 application and incorporated in the order, be discharged.

•The $478,026.57 held by the Public Trustee as [the wife’s] plenary administrator be applied in partial satisfaction of the orders for her partial property settlement.

•[The husband] pay $21,973.43 to the Public Trustee in satisfaction of the balance of the orders made by way of partial property settlement.

•[The husband] retain $500,000 from the [joint] CBA [Net Bank] account in satisfaction of the orders for partial property settlement.

36 From around 10 February 2018 the wife was cared for by Ms Abbott, until [a Care Facility] was engaged to provide the wife with 24 hour care.

37 In February 2018 the wife told the director of the wife’s Care Facility that she wanted to separate from the husband, in Ms Palmer’s presence. That same month, the wife told her solicitors and counsel she wished to separate from the husband.

38 The wife was due to attend an appointment to progress her NDIS application on 22 February 2018. Ms Abbott cancelled the appointment, because her son was hospitalised and she could not attend.

39 On 22 February 2018 the husband transferred:

(a) $21,974.43 into the HSBC joint account, which the Public Trustee withdrew, to provide the wife with $500,000, for them to administer;

(b) $1,685,4764.57 from his NAB and Westpac accounts, into the joint CBA personal account;

and he retained $500,000.

40 [In early March] 2018 a hearing was held in SAT. During the hearing, the wife addressed the Tribunal stating the husband was her “adversary”, she wanted her sisters to be her administrators and guardians, she was worried that people with an interest in her assets would fight over it, instead of applying it for her care and she wanted access to her funds to buy a house. The Senior Member found the wife was able to decide where she wished to live, she did not require a guardian and to avoid conflict, the Public Trustee should remain as the wife’s plenary administrator. The proceedings were adjourned for further hearing.

41 On 20 March 2018 the husband filed a Notice of Appeal against the orders of the Acting Magistrate. On 29 August 2018 he abandoned the appeal.

42 On 27 March 2018 the husband filed a Form 1A. He sought on a final basis that the orders of 1 February 2018 be discharged, the proceedings be dismissed and Ms Palmer pay his costs on an indemnity basis. On an interim basis he sought the Public Trustee be appointed as the wife’s Case Guardian, and injunctions restraining the Case Guardian from taking any steps to facilitate or encourage the wife making a new will.

43 On 28 March 2018 Ms Palmer learnt that the wife had contacted the husband, regarding her care. Ms Palmer visited the wife, who said she was minded to reconcile with the husband.

44 On 4 April 2018 the husband’s solicitors wrote to the Public Trustee, advising he would be seeking their appointment as the wife’s Case Guardian.

45 On 9 April 2018 Ms Palmer filed an application, seeking to be discharged as Case Guardian, to be released from the Undertaking and to be indemnified for any costs from the wife’s property. Ms Palmer says wished to be discharged because: the wife’s wishes concerning her relationship with the husband had changed; she felt the wife no longer trusted her or wanted her to be the Case Guardian; the proceedings, including the husband’s threats to pursue Ms Palmer for costs and damages, were adversely effecting her health.

46 On 16 April 2018, Ms Palmer was discharged as the wife’s Case Guardian and Mitchell was appointed, by consent as between the husband and Mitchell.[3]

[3] Notwithstanding that the husband’s then application sought the Public Trustee be appointed.

47 Ms Abbott and Ms Palmer sought to discontinue their SAT application following Ms Palmer withdrawing as the wife’s Case Guardian. They had sought an order for payment of their costs, which was not pursued.

48 On 9 May 2018 orders were made by consent in chambers discharging the interim orders made on 29 January 2018 which restrained the parties from dealing with various funds.

49 On 12 June 2018 the husband filed a Response in which he sought that Ms Palmer’s Undertaking remain in full force and effect and any other costs applications be reserved pending the outcome of his appeal.

50 On 28 June 2018 SAT appointed Mitchell and the husband as the wife’s joint guardians. Mitchell was appointed as her administrator, in lieu of the Public Trustee.

51 On 30 July 2018 orders were made for the husband to set out his claim against Ms Palmer. If the wife, via her Case Guardian, sought to be heard in relation to that matter, then she was to file and serve a Form 2A Response. The proceedings were adjourned for hearing.

52 On 10 September 2018 Mitchell, as the wife’s Case Guardian, filed a Response seeking Ms Palmer be released from her Undertaking from 28 June 2018 and Ms Palmer pay the husband’s costs.

53 The proceedings were listed for trial on 7 November 2018, which was vacated. Ms Palmer’s costs thrown away were reserved to the trial.

54 The husband has maintained that he and the wife have not separated; he considers their marriage is intact,[4] and their moneys continue to be joint funds.[5] Ms Palmer questions that, in circumstances where she and the husband were recently matched on an on-line dating website. It is common ground that:

(a) The husband and wife have not lived together since January 2018. The wife has been in hospital since December 2018. Prior to that time, she was in care.

(b) Mitchell is administering the wife’s funds on her behalf.

(c) The Public Advocate reported to SAT in June 2018 that the husband’s intention was to separate around $1.6 million from joint funds, to be administered by a third party for the wife. Following the accounts being freed from the previous restrictions, the husband transferred around $1.7 million from joint funds to himself.

(d) Notwithstanding Mitchell’s stated intention as the wife’s Case Guardian was to adjourn the proceedings, no such application has been made.[6]

WHAT IS MY ASSESSMENT OF THE PARTIES AND THEIR EVIDENCE?

[4] Refer to the husband’s affidavit filed 9 February 2018, paragraph 3; his affidavit filed 27 March 2018, paragraphs 7 – 8; the husband’s statement to SAT dated 21 May 2018.

[5] The husband’s affidavit filed 28 August 2018, paragraph 30.

[6] Refer to Mitchell’s affidavit filed 12 February 2018, paragraph 79.

55 I consider the husband and Ms Palmer gave their evidence honestly, but from their own perspective. Each of them was direct and candid in answering questions. It was clear that the husband is deeply aggrieved by Ms Palmer’s actions and he holds significant hostility towards her. At times he was clearly annoyed at answering questions that were directed to him. In contrast, Ms Palmer presented as more balanced and measured in her evidence.

56 Mitchell gave evidence by way of telephone link from [Europe]. Mitchell supports the husband’s application. Mitchell gave his evidence in an honest manner. At times Mitchell needed to be directed to answer questions and appeared to be defensive.

WHAT IS THE LAW?

57 The Full Court in Blueseas Investments Pty Ltd & Mitchell & McGillivray (1999) FLC 92-856 reviewed the principles associated with undertakings as to damages. The Court confirmed:

•Where an undertaking has been given, the Court may conclude that in all the circumstances of a particular case, no compensation should be paid, even if a loss can be demonstrated or it can order limited or partial compensation.

•The common law position is that the Court has the discretion not to enforce an undertaking as to damages, because the undertaking is given to the Court and not to the other party.

•There is no requirement for an undertaking if the party seeking an injunction is impecunious or has limited means.

•Poverty or straitened circumstances should not bar a litigant’s access to justice.

•An additional highly relevant matter that distinguishes litigation under the Family Law Act from ordinary civil litigation is the fact that very often, the wealth of the parties is controlled by one rather than both of them. As a consequence, family law cases must be considered in a different light.

58 It is well established the Court maintains discretion whether to enforce an undertaking. The purpose of an undertaking is to compensate for financial loss when an order is made by the Court relying upon untested evidence.[7]

[7] White & Green (No 2) (2009) 41 Fam LR 185 at para 184 – 5.

59 Gibbs J in Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 stated:

The object of requiring a plaintiff who seeks an interlocutory injunction to enter into an undertaking of this kind is to attempt to ensure that a defendant will receive compensation for any loss which he suffers by reason of the grant of the injunction if it appears in the event that the plaintiff was not entitled to obtain it. The insistence upon the giving of an undertaking is a very important, if not essential, means of preventing injustice from being done by the court when it makes an order at an interlocutory stage, before the rights of the parties have been finally determined.

60 The damages or compensation which can be claimed pursuant to an undertaking is that which flows directly from the injunction, and not from the litigation itself.[8]

[8] Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd [1981] 146 CLR 249.

61 In the usual course, the object of the undertaking is to protect a party from damages sustained if it emerges that the plaintiff was not entitled to the relief sought. The party seeking an award of damages carries the burden of establishing that the making of the injunction was the cause of the damage, which has been described as the “but for” test. A distinction needs to be drawn between results which flow from the litigation itself, as opposed to the grant of the injunction.[9]

[9] Air ExpressLtd (supra) at [312] – [315].

62 An enquiry as to damages will not ordinarily be ordered until either the applicant has failed on the merits at trial or it was established before the trial that the injunction ought not to be granted in the first instance.[10]

[10] See Indoor Holdings Pty Ltd v Bennett [2010] WASC 242.

63 The husband sought to rely on a number of authorities, to support the following propositions:

•While the Court maintains a discretion whether to enforce an undertaking, that discretion must be exercised according to equitable principles;

•The Court’s discretion not to enforce an undertaking should be limited to circumstances where the defendant “has been guilty of conduct that would render it inequitable to enforce the undertaking”;

•A plaintiff who has failed on the merits should recompense the defendant for the damage they have suffered as a consequence of the injunction;[11]

•Absent special circumstances, an undertaking should be enforced to require losses to fall on the ‘voluntary litigant’;

•The appropriate approach is to firstly assess the measure of damages, because the nature of the loss may bear some relevance to the decision as to whether to enforce the undertaking.[12]

[11] Air Express Ltd (supra) at 581 per Gibbs J.

[12] See Minerology Pty Ltd v Sino Iron Pty Ltd [No 18] [2018] WASC 307.

64 Both counsel referred to the recent decision of Quinlan CJ in Minerology Pty Ltd v Sino Iron Pty Ltd [No 18] [2018] WASC 307. In considering an application for an enforcement of an undertaking as to damages, His Honour stated:[13]

In any matter concerning the enforcement of an undertaking as to damages two broad issues (at least theoretically) arise: first, whether to enforce the undertaking and, secondly, the measure of damages. The first issue raises a matter of discretion. The second does not. As Lord Diplock described the position in Hoffman-La Roche & Co AG v Secretary for Trade and Industry: ‘The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant’s benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the undertaking same basis as that upon which damages for breach of contract would be assessed if there had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction.’

[13] At [34].

65 The Full Court in Blueseas Investments Pty Ltd (supra) questioned whether the usual civil principles regarding undertakings are appropriate in family law cases.

66 Whilst I have considered carefully the authorities which the husband relies upon, I do not consider that I am bound to adopt the approach suggested by him, in determining the exercise of my discretion. To do so would amount to a fetter upon the wide discretion of the Court. Caution must be exercised in considering other cases in which the Court has been asked to enforce undertakings. The precise terms of each undertaking and the circumstances in which the undertakings are given, require close attention. The nature of the relationship between the parties and the subject matter of the principle proceedings are also material.

67 The Court has discretion whether to enforce an undertaking. Many of the authorities which the husband relied upon derived from cases concerning commercial disputes between unrelated parties. While the principles elucidated may assist in guiding the Court, the exercise of discretion must, by virtue of the terms of the undertaking, be “just in the circumstances”. It would be artificial to ignore that many of the authorities upon which the husband relied, related to injunctions, not between parties to a marriage and often in jurisdictions where costs follow the event. Proceedings in this Court are quite different.

CASE GUARDIAN

68 A party with a disability may start, continue, respond to or seek to intervene in a case by a Case Guardian.[14]

[14] Family Law Rules 2004 (Cth), rule 6.08.

69 A person may be appointed a Case Guardian if they are an adult, with no interest in the case adverse to the interest of the person under a disability, they can fairly and competently conduct the case and they consent.[15]

[15] Family Law Rules 2004 (Cth), rule 6.09.

70 Ms Palmer, as Case Guardian, is bound by the relevant rules of the Court and may, for the wife’s benefit, do anything permitted by the Rules.[16]

[16] Family Law Rules 2004 (Cth), rule 6.13(1).

71 The duties of the Case Guardian were discussed in Read v Read [1944] SASR 26 at pp28-29 and quoted with approval by the Full Court of the Family Court in Kannis & Kannis (2003) FLC 93-135 at p78,261

[A] person who accepts the duties of guardian ad litem does not do so… as a matter of form. A guardian ad litem on behalf of an insane person or an infant represents that person before the Court, and it is his duty to see that every proper and legitimate step for that person’s representation is taken. He has got to give his mind to it, and decide for himself upon the material put before him what course of action to take…

72 As Case Guardian, Ms Palmer is to “conduct litigation and provide appropriate instructions”,[17] to act in a fiduciary manner, to obtain proper legal advice, to give instructions and in doing so, she has discretion in terms of the conduct of litigation.

[17] Kannis (supra) at p 78.261.

73 A Court may order the costs of a Case Guardian be paid by a party or from the income or property of the person for whom the Case Guardian is appointed.[18] Sections 117(6) provides that a court must not make an order under s 117(2) against a guardian ad litem, unless the court is satisfied that one or more acts or omissions of the guardian relating to the proceedings were unreasonable or have delayed the proceedings unreasonably.

HAS THE HUSBAND SUFFERED DAMAGES AS A RESULT OF THE INJUNCTIONS?

[18] Family Law Rules 2004 (Cth), rule 6.14.

74 The husband says he has suffered loss in terms of lost interest, legal fees and loss of opportunity to access NDIS funding. He seeks to be compensated by Ms Palmer, pursuant to her Undertaking.

Lost Interest

75 The husband says as a consequence of the injunction, interest of $22,167.50[19] was lost, calculated as follows:

(a) The husband transferred $1 million from the joint CBA personal account, into a Westpac account, which earnt 3% interest payable monthly. On 22 February 2018 the husband returned those funds. The interest that would have been earned “between 24 January and 30 May 2018 was $10,038. The interest earnt to 22 February 2018 was $1,994.95.”[20] He claims a loss of $8,043.05.

(b) The husband transferred $990,000 into a high interest HSBC account offering 4% interest on a monthly basis. HSBC reversed the transfer of $400,000 was reversed by HSBC on 25 January 2018. $590,000 was frozen and remained in the joint CBA personal account. The Public Trustee withdrew the funds on 1 February 2018. Between 24 January 2018 and 30 May 2018 interest would have been earnt of $13,266. No interest was actually earnt.[21]

(c) The husband transferred $690,000 into the NAB account, where it would have earnt 2.84% interest. Those funds were remitted to the CBA joint account on 22 February 2018. Between 24 January and 30 May 2018 he calculates the lost interest was $6,463, and instead the account only earnt $1,610 interest.[22]

[19] The husband’s affidavit filed 28 August 2018, paragraph 3.

[20] The husband’s affidavit filed 12 June 2018, paragraph 9.

[21] Refer to the husband’s affidavit filed 12 June 2018, paragraph 13.

[22] Refer to the husband’s affidavit filed 12 June 2018, paragraph 16.

76 There are a number of difficulties with the husband’s claim for lost interest.

Firstly, I am not satisfied that the injunctions of 1 February 2018 were responsible for all of the alleged loss of interest. Pursuant to SAT’s orders of early 2018, the Public Trustee was appointed as the wife’s limited administrator and had control of the wife’s accounts. They wrote to CBA and HSBC on 1 February 2018 seeking a stop on all accounts. The husband’s claim ignores the fact that prior to the injunctions, the Public Trustee had control of the wife’s accounts.

Secondly, the Public Trustee made arrangements to meet costs associated with the wife’s care, which they were authorised to do. Funds were appropriately applied in that manner. The wife had limited available funds and costs were reasonably incurred for her care, pending the NDIS funding approval.

Thirdly, HSBC reversed the husband’s transfer of $400,000 and froze the sum of $590,000. The bank’s actions were taken prior to the injunctions and not as a consequence of the injunctions.

Fourthly, the husband has calculated alleged lost interest from 24 January 2018. The injunctions were not granted until 1 February 2018. Any alleged loss prior to that time was unrelated to the injunctions. The injunctions were discharged on 9 May 2018. The banks were not prepared to action the orders without the Public Trustee’s consent, which was given on 24 May 2018. Any alleged loss after that date, which the husband claims to 30 May 2018, is unrelated to the injunction.

Fifthly, I am not satisfied that the husband made reasonable attempts to mitigate his alleged loss. At no time did he approach the Public Trustee, to seek their consent to funds being transferred into higher interest earning accounts, when it was open to him to do so. The husband did not pursue a stay of the injunctions, despite his appeal. The husband’s claim ignores the fact that $500,000 was paid to him by way of partial property settlement. There is no evidence of what steps he took to generate interest on those monies, in an effort to mitigate any alleged losses.

Finally, from 16 April 2018 Mitchell replaced Ms Palmer as the wife’s Case Guardian. The injunctions were not discharged until some 3 weeks later, a delay not within the control of Ms Palmer.

Lost Opportunity to Access NDIS Funding

77 In November 2017 the husband applied for the wife to be assessed for funding under the NDIS scheme. On 25 January 2018 NDIS advised the wife was eligible for State funding and they would be in contact to make the necessary arrangements.

78 The husband arranged an initial planning appointment on 22 February 2018, which was cancelled by Ms Abbott, who was caring for the wife at the time.

79 On 11 March 2018 the wife authorised Caleb, Ms Palmer, her mother, Mr Wake or one her carers to attend any NDIS appointments. She only authorised those persons to liaise with NDIS on her behalf. Specifically, no other person was permitted to do so.

80 Mitchell contacted NDIS to progress the wife’s assessment, as did Ms Abbott. The NDIS coordinator advised they wanted to await the outcome of the SAT proceedings, before progressing the wife’s claim. Subsequently, the Federal NDIS scheme took over the State scheme.

81 On 25 June 2018 the wife’s planning meeting took place and on 9 July 2018 her NDIS funding was approved, to commence from 13 July 2018. The wife’s funding includes an annual allowance of over $200,000 inclusive of her personal and domestic care.

82 The husband says $66,554.68 has been lost as a consequence of the injunction, which resulted in a delay in the wife’s NDIS claim being progressed. He says the injunction prevented him from using “any Enduring Power of Attorney and Enduring Power of Guardianship to attempt to deal with any matter”. The husband says had the claim been progressed, then a significant part of the $80,484 paid by the Public Trustee for the wife’s care between 30 January and 18 July 2019 would have been avoided. Ms Palmer says she was not in control of pursuing NDIS funding and the injunction did not prevent the claim being progressed.

83 The husband’s primary complaint is that the wife’s initial appointment was cancelled and the delays in a further appointment being scheduled. By the time the injunction was made, SAT was seized of the matter and there were competing claims for the appointment of a guardian for the wife.

84 I am unable to find that the injunctions were the cause in the delay of approval for the wife’s NDIS funding approval and that losses were incurred as a result. I have reached that conclusion for the following reasons:

Firstly, the evidence does not support a finding that had the wife’s initial appointment been maintained, funding would have been granted in March 2018 as asserted and therefore the wife’s care costs would have been entirely avoided. At best, that is supposition and conclusion.

Secondly, the subsequent delays and difficulties associated with progressing the NDIS claim were not as a consequence of the injunctions. NDIS were aware of the competing claims in SAT, and deferred progressing matters while awaiting the outcome of those proceedings. Further, in the intervening period, the state scheme merged with the federal scheme, which appeared to contribute to further delays.

Finally, the injunction only prevented the husband from exercising powers of guardianship over the wife. The injunction did not prevent the wife, or others, from taking steps to progress her NDIS claim.

85 I do not consider that the husband’s claim for damages on this basis can be maintained.

Can the Husband’s Damages include Costs?

86 I am not satisfied that costs fall within the ambit of a claim for damages, in light of the High Court’s comments in Air Express Ltd (supra). A party is only entitled to compensation arising from the order, as opposed to the litigation itself. I am not satisfied that costs flow from the grant of the injunction, but rather form part of the proceedings. I will consider separately the husband’s application for costs.

SHOULD MS PALMER’S UNDERTAKING BE ENFORCED?

87 After careful consideration, I am not satisfied that I should exercise discretion in favour of enforcing the Undertaking, noting the wide discretion available. I have reached that conclusion taking into account the following:

•The terms of the Undertaking require me to consider what is just. I am not satisfied it is just to require Ms Palmer to pay compensation to the husband in circumstances where she acted in accordance with the wife’s express wish to separate from the husband. I reject the submission that Ms Palmer did so precipitously or without necessary rigour, given the unchallenged evidence from September 2017, the wife sought her family’s assistance in commencing proceedings. The chronology demonstrates steps were not pursued at the time, because the wife was not prepared to undertake a medical assessment.

•In January 2018 the wife sought to commence proceedings and then agreed to undertake a medical assessment. Where the wife had repeatedly expressed her desire to separate from the husband, where the medical evidence found the wife was able to express her wishes in that regard but lacked capacity to fully instruct, it was reasonable and prudent for Ms Palmer to apply to be the wife’s Case Guardian.

•I am not satisfied that the wife, through her Case Guardian, was either reckless or imprudent to initiate the proceedings, in the circumstances where:

•The wife repeatedly expressed her desire to separate from the husband.

•Between September 2017 and late January 2018 the husband unilaterally transferred around $1.7 million from jointly held accounts, into accounts in his sole name.

•The husband had sought family law advice, which Ms Palmer became aware of because he sought that advice from the wife’s solicitors.

•SAT were satisfied that the wife required the appointment of the Public Trustee as her plenary administrator, prior to the injunctions being made. This Court was satisfied on the available evidence, that it was appropriate and proper to grant the injunctions, as sought.

•While the husband criticised aspects of the evidence given to the Court on an ex parte basis, I do not consider those criticisms were warranted. The wife had access to around $6,000, which Ms Palmer was unaware of when she made the application and which was not disclosed. That did not detract from her evidence that the wife was in urgent need of funds, to properly accommodate and provide for her care. In the context of the matrimonial asset pool being worth around $9 million, the additional sum in the wife’s possession was not likely to impact the outcome of the application in any material way. Objectively, I consider the facts relied upon by Ms Palmer supported her taking the steps she did.

•The husband unsuccessfully sought to set aside the injunctions. While the husband sought to appeal that decision, his appeal was abandoned. Ultimately a number of the injunctions were discharged by consent. That is not the same as the Court having made a finding that the injunctions should never have been sought, with the benefit of testing the evidence.

•While the husband suggested at various stages of proceedings in SAT and this Court that Ms Palmer had some ulterior motive, I am not satisfied that was the case. Ms Palmer’s unchallenged evidence was that she was acting in the wife’s best interests. Ms Palmer had no vested interest in the outcome.

•The husband has not adequately explained why he withdrew $1,000 on an almost daily basis prior to the commencement of these proceedings.

•The fact the wife has changed her mind in relation to both wanting her sister to act as her Case Guardian and expressed some ambivalence in relation to her desire to separate from the husband, does not detract from my findings. Ms Palmer considers the wife was persuaded to change her mind by the husband and Mitchell. I am unable to make any findings, nor do I consider it necessary to make findings as to why the wife may have changed her mind. The fact is she did. I consider Ms Palmer’s actions from that time were reasonable, in terms of seeking to be discharged as her sister’s Case Guardian.

•I do not accept while Ms Palmer was acting in her capacity as the wife’s Case Guardian, she should be required to repay every cent that could possibly be said to have been spent as a consequence of the commencement of these proceedings, as was the husband’s case. That is not consistent with the definition of compensation, to be limited to the losses suffered as a consequence of the injunction.

•I have raised a number of issues in relation to the amounts claimed by the husband by way of damages, which I do not propose to repeat.

88 Accordingly, I propose to dismiss the husband’s application for Ms Palmer to pay damages pursuant to the Undertaking.

MS PALMER’S UNDERTAKING

89 The husband says Ms Palmer is personally responsible for the Undertaking and the Court should have made enquiries about Ms Palmer’s financial circumstances when accepting her Undertaking. The husband’s counsel argued that as a Case Guardian can be personally liable for costs, by extension, they should be personally liable for the Undertaking.[23] Given that the wife was under a disability and unable to personally provide an Undertaking, the husband submitted Ms Palmer personally provided the Undertaking. The husband also referred to the terms of the Undertaking, which were provided by Ms Palmer, not specifying it was in her capacity as Case Guardian.

[23] Family Law Rules 2004 (Cth) rules 16.13 and 6.14.

90 I was not directed to any authorities to support the proposition that when an Undertaking is provided by a Case Guardian, they should be personally responsible and liable.

91 Given I have not exercised my discretion in favour of enforcing the Undertaking, it is not necessary for me to make any findings as to whether Ms Palmer personally provided the Undertaking, as opposed to her doing so in her capacity as the wife’s Case Guardian. I decline to do so.

SHOULD MS PALMER CONTRIBUTE TO THE HUSBAND’S COSTS?

92 I have already referred to the Court’s capacity to make a costs order against a Case Guardian. I will determine firstly whether there are circumstances that justify an order for costs and if so, what order for costs is just.

93 Subsection 117(1) of the Act provides that, subject to s 117(2) each party to the proceedings shall bear his or her own costs.

94 Subsection 117(2) provides that if the Court is of the opinion that there are circumstances that justify doing so, the Court may, subject to s 117(2A) make such orders as to costs as it considers just. Subsection 117(2A) provides as follows:

95 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.

96 The discretion to award costs is a “broad” one, and the various enumerated factors are not to be read in any restrictive way.[24]

[24] Collins & Collins (1985) FLC 91-603.

97 Any one of the factors may be the sole foundation for an order for costs.[25]

[25] Fitzgerald & Fish (2005) 33 Fam LR 123.

98 Nevertheless, the matters enumerated “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs.”[26]

[26] I & I (No 2) (1995) FLC 92-625 at 82,277.

99 It is unnecessary to spell out detailed reasons for costs decisions. An exercise of discretion to order costs will be upheld if it appears to the appellate court that there are reasons upon which the trial judge or magistrate could rely.[27]

[27] B & B [2015] FCWA 65; Greedy & Greedy (1982) FLC 91-250; Luadaka & Luadaka (1998) FLC 92-830.

100 An order for costs is compensatory, not punitive.[28] Impecuniosity is not of itself a bar to a costs order.[29]

[28] Braithwaite & Braithwaite [2007] FamCA 468 at [106] to [107].

[29] Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].

101 If an order for costs is to be made, the principle that such costs should be calculated on a party-party basis should not be lightly departed from unless circumstances of an exceptional kind exist. [30]

[30] Kohan & Kohan (1993) FLC 92-340 at 79, 614.

102 It is well established that the Court “should not depart lightly from the ordinary rule that costs are awarded on a party/party basis and any circumstances justifying such a departure should be of an exceptional kind”.[31]

[31] See for example, Yunghanns & Yunghanns (2000) FLC 93-029.

103 In Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225, Sheppard J stated that there should be some “special or unusual feature in the case to justify the court in departing from the ordinary practice”.

104 Holden CJ in Munday & Bowman (1997) FLC 92-784 at 84,660, drew from the decision of Sheppard J in Colgate-Palmolive (supra), examples of circumstances which would ordinarily lead a judge to give careful consideration to ordinary costs to be paid on an indemnity basis. In summary, these are as follows:

•commencing or continuing proceedings in circumstances where a party, properly advised, should have known that he/she had no chance of success;

•making allegations of fraud, knowing them to be false, and making irrelevant allegations of fraud;

•particular misconduct by a party causing loss of time to the Court and to other parties; and

•making groundless allegations or allegations which ought never to have been made, causing the undue prolongation of a case.

105 The Full Court in Madin & Palis (Costs) [2016] FamCAFC 25 reiterated that orders for indemnity costs should only be made in the most extreme cases, because the primary rule in this jurisdiction is that each party bears their own costs. At paragraph [23] the Full Court stated:

Finally, we take the opportunity to observe that in so far as the appellant sought an order for indemnity costs, applications for such costs should only be made, and such costs will only be ordered, in the most extreme cases. This is particularly so having regard to the fact that the primary rule in this jurisdiction is that each party should pay their own costs. Unfortunately, however, applications for indemnity costs are increasingly being made in this jurisdiction, thereby imposing further burdens on the court’s limited resources and causing further unnecessary expense for litigants.

106 With respect, I agree and endorse those comments.

Discussion

107 The husband seeks Ms Palmer pay all of his legal costs from the commencement of these proceedings, together with the wife’s legal fees. I am not satisfied that the circumstances warrant an order that Ms Palmer should contribute to the husband or wife’s costs. The husband has not persuaded me that it is appropriate to depart from the primary rule in this jurisdiction, which is that each party is to bear their own costs.

108 I have reached that conclusion taking into account the following matters:

•I am not satisfied that Ms Palmer’s conduct of proceedings in her capacity as the wife’s Case Guardian was unreasonable, inappropriate or caused unreasonable delay, for the reasons detailed.

•Ms Palmer sought to be removed as her sister’s Case Guardian following the wife’s change of mind. Ms Palmer was not removed as a result of any findings of misconduct. Since the commencement of the proceedings, the wife’s wishes in relation to a separation have changed, which has consequently altered the conduct of the case on her behalf.

•The authorities are clear about the limited circumstances in which a Court should consider making an order for indemnity costs. This case did not fall into any of the relevant criteria. Ms Palmer did not, as the wife’s Case Guardian, bring a hopeless case to the Court, or refuse to settle on terms that could easily have been predicted to resemble the final outcome.

•The wife, through her Case Guardian, was successful on an ex parte basis in seeking injunctions. Those orders were upheld after the Court had the benefit of the husband’s evidence, at a defended hearing, on an interim basis. The husband was unsuccessful in seeking to discharge the injunctions.

•While the husband sought to appeal those orders, he abandoned the appeal. As a result, the merits of the appeal were never determined. There is no basis upon which Ms Palmer should be responsible for those costs.

•Neither party has been wholly unsuccessful in the proceedings. While the injunctions have now been discharged, that order was made by consent between the husband and Mitchell, in his capacity as the wife’s Case Guardian. I do not agree with the husband’s submission that in light of the discharge of the injunction, it is open to me to conclude that the injunction should never have been made, it was made without merit or should never have been sought.

•The proceedings between the husband and wife remain on foot. There has been no final determination of the proceedings.

•Since Ms Palmer withdrew as the wife’s Case Guardian, the proceedings have continued as a consequence of the husband’s claim for damages against Ms Palmer. The husband has failed in that application.

•I have not been referred to any offers to resolve proceedings.

109 As a result of my findings, it is unnecessary to determine whether Ms Palmer should be indemnified out of the wife’s estate.

SHOULD THE COURT DISCHARGE ADDITIONAL ORDERS MADE ON 1 FEBRUARY 2018?

110 The husband seeks that the following orders dated 1 February 2018 be discharged:

(a) The partial property settlement orders be characterised by the trial judge at trial.

(b) The husband forthwith be restrained by injunction from using any Enduring Power of Attorney and Enduring Power of Guardianship to attempt to deal with any matter or deal with any funds on the half of the wife.

111 These matters were not the subject of any significant attention at trial. Mitchell, in his capacity as the wife’s Case Guardian, did not participate in the proceedings. The question as to whether the characterisation of funds distributed by the Court between the wife and the husband, clearly affect the wife, as does the proposed discharge of the injunction against the husband.

112 The husband’s counsel conceded, appropriately in my view, that the wife had a right to be heard, in relation to these matters. Given I have no evidence that the wife is either on notice of the proposed orders or that she consents, through her Case Guardian, I am not prepared to make the orders and I decline to do so.

OTHER

113 Ms Palmer sought costs against the husband. In light of my Reasons I will make standard orders for the filing of written submissions, should that application be pursued. I will otherwise hear from the parties about the further conduct of the proceedings.

PROPOSED ORDERS

114 Subject to hearing from the parties, I propose to pronounce orders as follows:

1. [Ms Palmer] be released from her Undertaking dated 29 January 2018.

2. The Respondent’s application for damages and costs against [Ms Palmer] be dismissed.

3. In the event [Ms Palmer] seeks to make an application for costs, within 28 days she file and serve a Minute of Orders Sought (in relation to the issue of costs), and written submissions in support of the application for costs, limited to 10 pages excluding annexures.

4. Within 28 days of receipt of the documents referred to above, the other party file and serve a Minute of Orders Sought (in relation to the issue of costs) and written submissions in support, limited to 10 pages excluding annexures.

5. The first party have leave to file a brief response to the submissions (limited to 5 pages) within 14 days of receiving the documents referred to in above.

6. The issue of costs otherwise be determined in chambers, in the absence of any written request by the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD
Secretary

6 JUNE 2019