HUGHES & HUGHES

[2015] FamCA 966

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES [2015] FamCA 966

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – final orders made by consent

FAMILY LAW – COSTS – Application for costs by an interested third party – where the interested third party is the subject of a subpoena to produce documents issued by the husband – question of whether the documents requested are irrelevant and/or too broad – interim order made that the husband pay the costs of the interested third party in a fixed sum

Family Law Act 1975 (Cth)

Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74

APPLICANT: Ms Hughes

RESPONDENT: Mr Hughes

INTERESTED THIRD PARTY: Mr Paseta

FILE NUMBER: DGC 2378 of 2013

DATE DELIVERED: 12 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 12 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: Taylor Splatt & Partners

COUNSEL FOR THE RESPONDENT: Mr Potter

SOLICITOR FOR THE RESPONDENT: White Cleland Pty Ltd

COUNSEL FOR THE INTERESTED THIRD PARTY: Mr Wheeler

SOLICITOR FOR THE INTERESTED THIRD PARTY: Wheeler Family Law

Final Orders

BY CONSENT IT IS ORDERED

1. That the Husband pay to the Wife a total sum of $530,000 as follows:

   a.$500,000 on or before 45 days of the date of the Orders, on which date the maintenance Order made 21 May 2014 by Senior Registrar Fitzgibbon is discharged.

   b.$30,000 in 180 days.

2. That each party retain the monies received pursuant to paragraph 2 of the Orders made 1 July 2014.

3. That pending the Wife’s receipt of all the monies in paragraph 1 above, the Husband be restrained from further encumbering above $2,200,000 or reducing the value of his interest in the Town C Road property, save to fund the payment and in the ordinary course of business.

4. That the Husband indemnify the Wife absolutely in relation to any transactions associated with her involvement in D Pty Ltd and/or E Pty Ltd, including any taxation claim.

5. That the parties otherwise retain the assets, resources and superannuation in their possession as at the date of these Orders.

6. That each party indemnify and keep indemnified the other party in respect of any liability in respect of any asset or resource they are retaining pursuant to these Orders.

7. All extant applications be dismissed and there be no Orders for costs.

AND THE COURT NOTES that

A.     the parties intend these Orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

B.     the property in Country F is subject to Orders in Court in Country F and the Family Court.

Orders Regarding Costs

IT IS ORDERED

1. That the husband pay or cause to be paid to Mr Paseta costs in the sum of $1,750 such sum to be paid within 7 days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2378 of 2013

Ms Hughes

Applicant

And

Mr Hughes

Respondent

And

Mr Paseta
Interested Third Party

REASONS FOR JUDGMENT

1. I have had the opportunity of reading the Court file and considering the trial affidavit material that has been provided.  The matter comes before me today, being the first day of the final hearing in respect of the parties’ competing property applications. 

2. The file discloses that this is a matter where the parties were in a marriage of some 10 years’ duration.  The husband is aged 70; the wife, 56.  There is a current maintenance order that makes provision for the wife on a weekly basis.

3. The proceedings have a long history in this Court.  There have been a raft of interim applications which have been determined.  I note that there has been an appeal filed, in respect of one of those interim determinations, which was subsequently withdrawn. 

4. It is common ground between the parties that the husband held an interest in a property at Town C at the commencement of the relationship.  The value of that property has been a significant issue between the parties, as is the weight to be attributed to that initial contribution.

5. The parties have sensibly heeded the advice of their lawyers.  They have presented to me a minute of consent order which seeks to adjust between them their respective property interests.  I am told that the proposed settlement represents an adjustment in favour of the wife of approximately 30 per cent of the pool of assets.

6. That adjustment, it is said, is consistent with the approach advocated by the Full Court in the decision of Pierce & Pierce (1999) FLC 92-844; [1998] FamCA 74.

7. The proposed settlement will finalise the financial relationship between the parties insofar as their assets in Australia are concerned.  I note that the parties have an order which requires them to sell property in Country F and there is an order that provides that the proceeds of sale of that property are to be divided equally.  That matter remains to be resolved but, ultimately, will be resolved, whether by agreement or in the context of proceedings that are currently on foot in Country F.

8. Having regard to the background of the matter, having regard to the material filed and the submissions made on behalf of the parties by counsel this day, I am satisfied that it is just and equitable to make orders in the terms of the minute.  I am satisfied that the proposed settlement is in the range of outcomes likely to be achieved had the matter proceeded down the trial pathway.

9. It properly reflects the contributions of each of the parties made during their 10‑year relationship.  It also recognises the contributions made by the husband at the commencement of their relationship.  Accordingly, I will make orders in the terms of the minute that is signed by the parties and dated 12 October 2015. 

10. I also have an application made on behalf of a Mr Paseta, who is a person subject to a subpoena, to produce documents, which was filed on 22 September 2015.  That subpoena sought that Mr Paseta produce to the Court bank statements of all accounts held in his name for the period from 1 January 2010 to date.

11. Mr Paseta is not a party to the proceedings.  He is the son of the wife in the property applications that were listed before the Court.  A notice of objection was filed on behalf of Mr Paseta on 5 October 2015.  The basis for objection by him with respect to the subpoena is, firstly, that the documents requested were irrelevant and, secondly, that the terms of the subpoena were too broad.

12. Mr Paseta engaged counsel to appear on his behalf at the return date of the subpoena that is 5 October 2015.  The matter was not dealt with by the Registrar that day on the basis that the documents the subject of the subpoena had not been produced to the Court.  Further, the matter was listed for final hearing before me to commence today.  Further costs have been incurred on behalf of Mr Paseta in engaging his solicitor to appear on his behalf.

13. Ultimately, the property proceedings as between the parties were resolved and I have made final orders in respect of those matters.  The only issue outstanding is the claim for costs made on behalf of Mr Paseta in relation to the costs incurred by him with respect to the subpoena to produce documents.  I have heard submissions from the solicitor acting for Mr Paseta.  He maintains on behalf of his client that there are issues as to the relevance of the documents sought to be produced.

14. Further, it is submitted that the categories of documents sought was too broad and that to comply with the subpoena placed an oppressive burden upon Mr Paseta; it was also submitted that the issue of the subpoena amounted to a fishing expedition on behalf of the husband. 

15. Mr Potter on behalf of the husband takes issue with those claims.  He submits that the documents sought were relevant.  They go to the issue of, firstly, moneys alleged to have been expended by Mr Paseta in relation to a property in Country F and, further, in relation to transfer of funds to the wife’s parents in Country F.

16. Having heard those submissions, I am satisfied that the subpoena as drawn is oppressive, that there has been no attempt made on behalf of the husband to seek a focused production of documents directed to the issues in dispute between these parties.  Mr Paseta, as a consequence, has had to engage lawyers to appear on his behalf, both at the initial return date of the subpoena, as well as today.

17. I am satisfied that in all of the circumstances he is entitled to costs in respect of those appearances. 

18. The amount claimed on his behalf is the sum of $2,460.  It is submitted that that claim takes into account the drafting and filing of the notice of objection, the perusing of affidavits necessary to understand the issues in the case, the briefing of counsel on 7 October and the appearance today.  The amount claimed makes allowance for the appearance of counsel at the maximum rate allowable under the rules.

19. I am not satisfied that it is appropriate that costs be awarded in the amount claimed; a significant claim is made in respect of travel expenses in circumstances where perhaps an agent solicitor might have been engaged to appear on behalf of Mr Paseta at this hearing. 

20. In all of the circumstances, I am satisfied that the appropriate amount to be paid by the husband to Mr Paseta is the sum of $1,750 and I will make an order in those terms.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 12 October 2015.

Associate: 

Date:  12 October 2015