Hinde and Hinde (No 2)

[2010] FamCA 1058

FAMILY COURT OF AUSTRALIA

HINDE & HINDE (NO. 2) [2010] FamCA 1058

FAMILY LAW – COSTS – Contempt proceedings – Where husband has no assets or income – Wholly uncooperative throughout proceedings – Husband ordered to pay costs

Family Law Act 1975 (Cth) s 117(2)

APPLICANT: Ms Hinde

RESPONDENT: Mr Hinde

FILE NUMBER: BRC 5920 of 2008

DATE DELIVERED: 12 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 12 November 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Ubank, Solicitor of Hogan Stanton Lawyers appearing for the Applicant Wife

COUNSEL FOR THE RESPONDENT: There being no appearance by the Respondent Husband

Orders

IT IS ORDERED THAT:

1. The Husband pay the costs of the Wife of and incidental to the contempt proceedings heard on 25 June 2010 on an indemnity basis with the quantum of the Wife’s costs fixed in the amount of $33,135.

IT IS NOTED that publication of this judgment under the pseudonym Hinde v Hinde is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC  5920  of 2008

MS HINDE

Applicant

And

MR HINDE

Respondent

REASONS FOR JUDGMENT

1. In proceedings such as this it does not amount in any way to double jeopardy if a litigant sentenced for contempt is ordered to pay the costs of the proceedings.  Costs of and incidental to proceedings are quite separate from the issue of penalty.  In relation to the contempt not all of the contempt charges, from recollection, were successful but certainly sufficient to warrant the term of imprisonment that was imposed.  I find that the conduct of the respondent in contesting those counts of contempt reflected his behaviour throughout the entire period of this litigation.  His conduct has been nothing short of shameful and disgraceful.

2. He has been uncooperative with the processes.  For example, being hostile when served with documents as deposed to in the affidavit of the process server, paragraph 5:

   The male was very uncooperative and was not willing to help with further information. 

   He denied being Mr Hinde, and the process server was able to identify him through a photograph that is annexed. 

3. He denied to the Court, on 29 October 2010 that he had received any such application.  I am satisfied from information presented today such a claim was false.

4. I have had regard to the matters set out in section 117(2). There is no indication that the respondent has assets or income. There is in my mind the lingering suspicion that there was a form of conspiracy between

   
   

   Mr Fray and Mr Hinde and one day he may have the moneys paid back.  However, that is an aside that I simply place on the record.

5. The fact of the matter is a litigant cannot hide behind the shield that he has no assets or income and thereby continue to litigate with impunity.  In my view, an application for indemnity costs is more than warranted in this case and I propose to so order.

   RECORDED : NOT TRANSCRIBED

6. I will fix the costs.  I am satisfied there has been detailed disclosure of how the costs are calculated.  I have perused the submissions prepared by Mr Grimshaw of counsel.  I have re-read those submissions.  I accept the force and accuracy of the submissions in those terms.  I will fix the costs and order the respondent to pay the applicant’s costs in the sum of $33,135.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 12 November 2010.

Associate: 

Date:  12 November 2010