Hillman & Hillman (No. 4)

[2021] FamCA 413

FAMILY COURT OF AUSTRALIA

Hillman & Hillman (No. 4) [2021] FamCA 413

File number(s):

BRC 1750 of 2016

Judgment of:

BAUMANN J

Date of judgment:

27 May 2021

Catchwords:

FAMILY LAW – COSTS – Where the wife filed an application for enforcement of final property Orders – Where the final property Orders were effected before the Court was required to make any orders – Exercise of discretion – Where circumstances exist for an order for costs against the husband – Costs Order made fixed in the sum of $2,000.

Legislation:

Family Law Act 1975 (Cth) s 117

Cases cited:

Hillman & Hillman (No. 2) [2020] FamCA 893

Hillman & Hillman [2020] FamCA 630

Number of paragraphs:

15

Date of hearing:

27 May 2021

Place:

Brisbane

Solicitor for the Applicant:

Mr L Brandon, Evans Brandon Family Lawyers

Solicitor for the Respondent:

Self-represented

ORDERS

BRC 1750 of 2016

BETWEEN:

MS HILLMAN

Applicant

AND:

MR HILLMAN

Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	27 MAY 2021

THE COURT ORDERS:

1.That the husband pay the wife within thirty (30) days costs fixed in the sum of two thousand dollars ($2,000).

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

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 17.02 Family Law Rules 2004 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

BAUMANN J:

1. On 23 October 2020 the Court pronounced Reasons (see Hillman & Hillman (No. 2) [2020] FamCA 893) and an Order that brought to an end property proceedings between the parties. Those Reasons and Orders are to be seen and read in conjunction with the Reasons delivered on 18 September 2020 (see Hillman & Hillman [2020] FamCA 630), which made findings as to the factors required for determining what is a just and equitable result.

2. Importantly, Order 1 of the Orders made on 23 October 2020 (“the October 2020 Orders”) provided:

   1.        That by 22 January 2021:

   (a)the husband pay to the wife the sum of $160,000; and

   (b)the husband discharge the mortgage secured against the property situated at UU Street, Suburb VV, in the State of Queensland, more particularly described as Lot … on SP … (“the Suburb VV property”) or otherwise (if refinancing with the same Mortgagee) extinguishing completely the wife’s liability.

3. It is not in dispute that the husband did tender and the wife did accept, although with a reservation, the payment of $160,000 by the due date.  The husband was unable to discharge the mortgage over the property or, I infer, refinance, and decided that the property ought be sold.  The October 2020 Orders provided at Order 3 a process by which the property would be marketed in default of compliance with Orders 1(a) and/or 1(b).

4. It is apparent through this matter, and is clear from the Reasons for Judgment earlier delivered in both this matter and earlier parenting proceedings, that the parties are unable to communicate at any effective level.  It is apparent that Mr Hillman, who has generally been unrepresented in all proceedings, has at times, in my view, directed some of his frustrations, even anger, about the process to the lawyer representing consistently through this matter the wife/mother, Mr Brandon.  That has rarely been helpful.

5. Nonetheless, by 4 February 2021, being some nearly two weeks after the due date for compliance with Order 1(b) of the October 2020 Orders, the wife chose to file an Application in a Case by way of enforcement.  It is not necessary for the purpose of this costs Judgment to go to all the evidence that followed, save to record the context in this way.  The husband asserts that the wife and/or Mr Brandon did not cooperate with taking steps to enable him to have the property listed for sale, but I am not satisfied that he sought to do so in a way that was strictly in compliance with Order 3.  Nonetheless, it is clear that he was able to negotiate a sale of the property at a figure of $810,000, which I note is $50,000 more than the notional figure included in the pool of assets and liabilities identified at paragraph 96 of my earlier substantive property Judgment.  The husband says, and I am prepared to accept, that he was able to achieve that price through undertaking works on the property, be they improvements or maintenance, that made it more attractive in the market.  The price of $810,000 does in reality represent a slight reduction on its market value on its face because he has the benefit of remaining as an occupant in the property with his daughter and – I am not sure – maybe his mother as well for no rent for an extended period.

6. Be that as it may, the October 2020 Orders were always structured on the basis that the wife, having received $160,000 and being extinguished from any liability under the then-mortgage, that whatever the husband achieved on the sale he was entitled to retain.

7. Mr Brandon says in his submissions that the Application made 4 February 2021 was both appropriate and necessary because the wife’s position was still at risk because Order 1(b) of the October 2020 Orders had not been complied with, namely, that the wife’s capacity to borrow and financial situation was affected by the failure to extinguish, as the husband was bound to do by 22 January 2021, her liability.

   STATUTORY PATHWAY

8. The principles applying to a costs application, which is a discretionary exercise of power by the Court, are well settled. Although Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that generally each party bear their own costs of the proceedings, it is clear that if there are circumstances that justify an order for costs, after consideration of factors in s 117(2A) of the Act, then the Court may make an order for costs as it regards as just. Mr Brandon, in the submissions he made, which I will deal with quickly, says that circumstances do exist for an order for costs and his client seeks costs in the fixed sum of $2,750.

9. I deal now with the s 117(2A) considerations sequentially.

10. The Court has considered the financial circumstances of each of the parties to the proceedings.  At the conclusion of the property judgment, I had formed the view, as the Reasons made clear, that the wife was in a superior financial position to that of the husband.  However, it is relevant in my view, despite Mr Hillman saying it is not, that his financial circumstances at this stage mean that, on his own admission from the bar table, that he has an excess available to him of approximately $250,000 from the sale of the house, although certain other accounts and bills have yet to be paid apparently.  The husband’s income, he says, is that of a pensioner.  He is not, in all the circumstances, although from an income perspective in modest circumstances, bereft of funds.

11. In respect of the conduct of the parties in relation to the proceedings, it is not necessary or possible without testing all the evidence to be satisfied whether the ongoing inability to communicate has contributed to the inability for this matter to be resolved.  In my view, most likely it has, but I do not regard it as a significant factor in respect of this part of the proceedings.  I take into account that the husband says that the proceedings would not have to have been bought if the wife had cooperated.  The contrary position, as Mr Brandon, I think, correctly as a matter of law states, is that the wife was entitled to her benefit under the Judgment, and when the husband failed to satisfy Order 1(b) by 22 January 2021, she was entitled to expect Order 3 to be put into effect immediately and in the terms of Order 3, which did not occur.

12. Section 117(2A)(d) requires a Court to consider “whether the proceedings were necessitated by the failure of a party to the proceedings to comply with the previous orders of the Court”. In my view, the wife, although she may have elected not to bring proceedings, was entitled to bring proceedings, and she did so because there had been prima facie non-compliance by the husband with Order 1(b) of the October 2020 Orders.

13. It could not be said in this case that either party has been wholly unsuccessful.  To that extent, the husband has sold the property, which settled on 14 May 2021, and obtained a residue.  The wife has now been extinguished from any liability.  These were achieved before the Court was required to make any orders.

14. In terms of the exercise of the discretion, I am satisfied that circumstances do exist for an order for costs.

15. The Order of the Court will be that the husband pay to the wife within 30 days, costs fixed in the sum of $2,000.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann on 27 May 2021.

Associate:  

Dated:       25 June 2021