HOLMES & HOLMES

[2015] FCCA 1404

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLMES & HOLMES [2015] FCCA 1404

Catchwords:
FAMILY LAW – Property – interim orders – interim distribution – where parties consent to an interim distribution of property but disagree on amounts – costs – whether wife should pay husband’s costs – parties to pay their own costs.

Legislation:

Family Law Act 1975 (Cth), ss.79,80

Applicant: MS HOLMES

Respondent: MR HOLMES

File Number: SYC 5125 of 2014

Judgment of: Judge Scarlett

Hearing date: 13 May 2015

Date of Last Submission: 13 May 2015

Delivered at: Sydney

Delivered on: 13 May 2015

REPRESENTATION

Solicitor for the Applicant: Mr Manning

Solicitors for the Applicant: Manning Lawyers

Counsel for the Respondent: Ms Clifton

Solicitors for the Respondent: David Landa Stewart Lawyers

ORDERS

UNTIL FURTHER ORDER

1. Within seven (7) days of the date of these Orders, the Husband and Wife are to do all things and sign all documents necessary to cause the release of the sum of $100,000.00 by way of partial property settlement to each party from the proceeds of sale in the controlled money account in the names of both parties held by Avalon Law to be made payable to Manning Lawyers Pty Ltd or its nominee for the Wife and David Landa Stewart Lawyers for the Husband.

2. The parties are to pay their own costs of this Application.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 5125 of 2014

MS HOLMES

Applicant

And

MR HOLMES

Respondent

REASONS FOR JUDGMENT

1. I have heard some submissions from the parties’ legal advisors today in respect of two matters, each an Application in a Case, one brought by the wife in which she seeks orders that an amount of $100,000 be released to each of the parties out of a sum being held in a controlled moneys account arising out of the sale of property. The essential order seeks that the parties sign all documents to transfer the sum of $100,000 to each party by way of interim partial property settlement. There was, included in that application, an application for costs, but I am informed that that is not now pressed. That application was filed electronically on 29 April 2014.

2. There have been some discussions between the parties’ lawyers today on both of those issues without any resolution whatsoever. However, Ms Clifton of Counsel raised the point that the wife had not met her obligation to make full financial disclosure until quite recently. Her current solicitor, Mr Manning, who has recently taken over the matter apologised, and indicated that he had sent copies of some documents electronically and provided further documents in hard copy this morning, including a balance sheet. It was my understanding that the question of financial disclosure was regarded as an essential precondition in respect of the husband’s agreement that there should be an interim distribution of $100,000 to each party.

3. What I am told this afternoon is that the husband does, in fact, consent but seeks an order for costs on the basis that there had not been this disclosure at the time of the Conciliation Conference on 27 April and that instead the wife had gone off and brought this Application in a Case. It was further put to me by Ms Clifton that it had always been the case that the husband had agreed that there should be an interim distribution in the sum of $50,000 to each party from moneys held in that particular trust account and, indeed, she is correct. The husband filed a Response on 31 October and on the interim orders sought under the heading Financial Orders Interim Orders (3) and (4) provide exactly that.

4. I am informed this afternoon that, yes, the husband consents to a distribution to each party not in the sum of $50,000, which has always been his case, but $100,000 and seeks an order for costs.  This is an oral application for costs.  It does not appear to me to be related to the application for costs contained in his Application in a Case filed on 5 May.  The application in that document, in paragraph 4, is:

   The applicant wife pay the respondent husband’s costs of and incidental to this application on an indemnity basis.

5. Clearly, that application for costs relates to the subject matter of the application about the undertaking not to relocate with the children of the marriage, which is to be dealt with separately. 

6. Going back to the question of the application to release the sum of $100,000 to each party, true it is that disclosure by way of providing copies of the documents has been made late, but it has always been the husband’s position that there should be an interim distribution, as I said, albeit in a much smaller amount.

7. It would appear to me to be very much to the benefit of the parties if they could each receive $100,000 out of money that is otherwise locked up in a trust account doing neither of them any good. It may well assist them with their legal costs, and the wife has indicated that she is in a position of some financial difficulty. The husband also has expenses, and he too could use the money and it seems to me that I should make orders providing for the release of those funds. Should there be an order for costs?

8. It has always been the case that this matter was going to come back before the Court today.  Indeed, as long ago as 30 January when I directed the parties to attend a Conciliation Conference on 27 April I made the direction that the matters would be adjourned for mention before me at 10 am today on the basis that if the financial matters did not settle at the conference, then I would be in a position to make further directions about the future progress of the matter.

9. The learned Registrar on 27 April in an order dated that day noted the matter was listed for a Conciliation Conference before her, noted that the matter had not settled and that there were three issues in dispute between the parties, being the assessment of the parties’ respective financial contributions, what, if any, adjustment should be made for the future needs of the wife and the number of nights per fortnight the children would spend with each party and the Registrar then adjourned the matter, the outstanding applications for mention before me today on 13 May, noting that the matter was due to come back on that day.

10. Each of these two applications in a case was listed today as a first return date.  Whilst there is a statement in the affidavit of the husband that I had specifically directed that one matter be listed for hearing today, I certainly have no recollection of it and if I list matters for interim hearing I usually make directions. I think that is well known.  Both applications were returnable on 13 May, today, because that was the next date the matter was going to come back to Court; that and nothing more.

11. The issue of the release of moneys by way of an interim property distribution was, to my mind, an issue that did not require a huge degree of argument. I am not of the view that in the circumstances, and noting that the husband had himself brought an Application in a Case seeking certain orders returnable today, that there is any basis upon which I can be satisfied that it would be proper to make an order for costs against the wife.  She is not seeking an order for costs against the husband. I propose to make an order releasing those two sums of $100,000 to the parties, but the parties can pay their own costs in respect of that specific application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  26 May 2015