INNA & ABDU LOFTEN

[2015] FCCA 1945

FEDERAL CIRCUIT COURT OF AUSTRALIA

INNA & ABDU LOFTEN [2015] FCCA 1945

Catchwords:
FAMILY LAW – Divorce – application for divorce – contested by husband – where there is controversy as to the date of separation – where there are extant proceedings before the Family Court of Australia – application for divorce severed from the totality of proceedings and transferred to the Federal Circuit Court of Australia – where the matter is listed for hearing to determine the application for divorce and response thereto – response to application for divorce discontinued – where there remains controversy between the parties as to the date of separation and that controversy being a factual issue for determination in current proceedings in the Family Court of Australia – transfer from Federal Circuit Court of Australia to Family Court of Australia – issues for consideration in transferring the proceedings.

FAMILY LAW – Costs – application for costs on behalf of the applicant as against the respondent – costs awarded.

Legislation:  

Family Law Act 1975, ss.47, 75
Federal Circuit Court of Australia Act 1999, ss.19, 117

Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812
AMS & AIF (1999) CLR 160

Applicant: MS INNA

Respondent: MR ABDU LOFTEN

File Number: PAC 2549 of 2014

Judgment of: Judge Harman

Hearing date: 26 June 2015

Date of Last Submission: 26 June 2015

Delivered at: Parramatta

Delivered on: 26 June 2015

REPRESENTATION

Counsel for the Applicant: Ms Winfield

Solicitors for the Applicant: Zali Burrows Lawyers

No appearance by the Respondent

ORDERS

1. These proceedings are transferred to the Family Court of Australia for hearing and subject to the discretion of Justice Hannam, consolidation with the presently extant proceedings part heard before Her Honour, the Application for Divorce filed 30 May 2014.

2. IT IS NOTED that the husband’s Response to the Application for Divorce was discontinued by him 23 March 2015 however, on the basis that there remains controversy both between the parties and as between the documents filed by the wife as to the date of separation and that controversy being a live factual issue for determination by Her Honour in part heard proceedings before her, I am not prepared to proceed to hear and determine the Application.

3. Order the husband to pay the wife’s costs of and incidental to today’s listing assessed in the sum of  $4,250, such costs to be paid by the husband to the wife within 28 days and failing payment within that period:

   (a)The wife shall then be entitled to interest upon the sum or such portion of it as remains unpaid from time to time at the rate prescribed by the Federal Circuit Court Rules 2001;

   (b)The wife shall be entitled should she consider it necessary, appropriate and desirable to commence proceedings for recovery of that sum and any interest accrued or accruing thereupon;

   (c)Such sum and any interest accrued thereupon shall be a charge upon the husband’s interest in property presently the subject of property adjustment proceedings and shall be payable by the husband upon conclusion of those proceedings and upon the making of Orders for property adjustment by consent or as may be determined by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 2549 of 2014

MS INNA

Applicant

And

MR ABDU LOFTEN

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to an Application for Divorce filed 30 May 2014.

2. The parties to the proceedings are the Applicant wife, Ms Inna, and the Respondent husband, Mr Abdu Loften.

3. The husband does not appear today. He had previously filed a Response to the Divorce which had contested jurisdiction or at least the delegated jurisdiction for the Sessional Registrar who only has power to determine uncontested Applications. The Response had put into issue the date of separation of the parties and substantially so. I will return to that issue shortly.

4. On its face the proceedings are undefended and the wife would be entitled to proceed, on the basis of her evidence, to prosecute and obtain, subject to the Court’s acceptance of her evidence, a Divorce Order.

5. It is necessary, in light of the Orders that I propose to make, to canvass briefly the history of proceedings.

History of Proceedings

1. There would not appear to be any controversy between these parties as to their date of marriage. Controversy relates only to the date of separation.

2. There is, on the face of the material filed with the Court, three potential dates which are or could be agitated. In reality, there are two although that, of itself, gives rise to some complication.

3. By her Application for Divorce filed 30 May 2014 the wife alleged separation under the one roof occurred on 11 April 2013. The wife asserted in her Application for Divorce that the parties had lived separately and apart under the one roof from that date (11 April 2013) to “present”, that being 30 May 2014. The Application has not been amended.

4. The wife, in Affidavits filed by her, both with respect to the Application for Divorce and with respect to substantive proceedings for parenting and property adjustment Orders, has otherwise referred to separation having occurred under the one roof “in or about 2009”.

5. The Court is advised that the mother is in a position to give oral evidence to explain or reconcile those different dates and based upon her suggested imperfect understanding of what was meant by “the date of separation” at different times. It is submitted that the wife, at the time that she has filed her Application for Divorce, clearly self-represented and the document self-completed, had not received legal advice and had an imperfect understanding as to what was meant by separation in its legal context, whether separation under the one roof or otherwise.

6. The difficulty with that course would be that the husband is not present and would not be aware of that evidence. He has a right of due process and, even if the divorce is uncontested and unchallenged, he has a right to be aware, prior to its determination, of the evidence relied upon in its prosecution.

7. The husband, for his part, alleges, in his discontinued Responses and Affidavits filed in the substantive proceedings that the parties have not separated at either of the dates alleged by the wife. The husband asserts that the parties in fact separated and physically on 13 April 2014. That is a date which falls within the period in which the wife asserts that the parties continued to live separately and apart under the one roof. Thus, it is somewhat unclear as to the factual matrix relied upon by either.

8. I make clear that the husband’s Response, or perhaps more correctly, Responses to the Application for Divorce, consistently alleges the April 2014 date, although varying as to whether he alleges separation on 12 or 13 of April 2014, he also being less than precise in that which he seeks to affirm on oath. The Responses filed by the husband have each been withdrawn or discontinued.

9. The Application for Divorce was the first of several Applications which have now been filed by these parties, one or the other of them.

10. The Application for Divorce first came before the Court on 23 July 2014. On that date, the husband appeared in person and there was no appearance by or on behalf of the wife. The Application for Divorce was struck out with a right to reinstate. The Application was reinstated on the wife’s Application 30 July 2014.

11. It would appear clear from that contained within the Court file and particularly from the various bench sheets contained upon the Court file, if not also from the wife’s evidence, that the wife was unable to attend on that date as she was restrained, by Court Order it would seem and against her will, in Lebanon, in which jurisdiction the husband had, at that time, commenced proceedings and obtained certain Orders which precluded the wife departing the jurisdiction. The husband would not appear to have volunteered that information to the Court when appearing 23 July 2014 even though he was fully aware of it. The wife was subsequently able to depart the jurisdiction.

12. The matter, having been reinstated by the Registrar, was then adjourned for mention directions before his Honour Foster J on 8 August 2014. The Order that was made by the Registrar on 30 July 2014 is issued as an Order of the Federal Circuit Court of Australia. The Application for Divorce is indicated as being filed in the Federal Circuit Court of Australia. There is nothing contained within the Order of 30 July 2014 to suggest the basis upon which the matter was listed before a Judge of the Family Court. There is no Order made for transfer of the proceedings, for example. However, those Orders were made.

13. The Application came before Foster J on 8 August 2014, on which date certain filing directions were made together with an Order:

    (1) Proceedings adjourned for hearing in relation to the defended divorce application to not before 12pm on Friday 29 August 2014.

14. On 29 August 2014, the proceedings were again before his Honour Foster J. On that date leave was granted to the husband to withdraw a Response which had been filed by the husband on 4 July 2014. The bench sheet notes that the Response was “accordingly struck out and dismissed”. At that point the Divorce became unchallenged and undefended. The Application for Divorce did not proceed on that date, however, and was adjourned to 15 September 2015.

15. In the intervening period, a number of subpoenas were issued by the parties. It would seem, at least with respect to one of those subpoenas being that addressed to New South Wales Police, that an objection to production was filed. Other than observing that the objection was made and noting the advice of Counsel as conveyed therein, that material has been produced with redaction to address said objection that issue is not of any real relevance.

16. On 10 September 2014, an Application Initiating Proceedings came before Judge Dunkley in the Federal Circuit Court of Australia. That Application had been filed by the husband on 5 August 2014. The Application sought certain Orders with respect to the parenting of the children of these parties as well as Orders with respect to property adjustment. The Application would appear to have been subject to an appearance before a Registrar in Chambers, at which time consent to abridgment of time would appear to have been granted, with the Court copy of the Application endorsed “list ASAP”.

17. Why the Application was filed in the Federal Circuit Court of Australia when clearly there were proceedings on foot before the Family Court of Australia, the proceedings for contested Divorce, of which the husband was fully aware, is unclear. Why it was accepted for filing in the Federal Circuit Court of Australia in those circumstances is also unclear. The Federal Circuit Court of Australia Act 1999 would suggest that the Application could and should have been filed before the Court already seized of primary jurisdiction[1], being the Family Court of Australia. It is curious that the filing occurred on that basis, but clearly the Federal Circuit Court Judge before whom the matter came on that occasion was quick to remedy that defect[2].

    [1] Federal Circuit Court of Australia Act 1999, section 19(1)

    [2] Federal Circuit Court of Australia Act 1999, section 19(2)

18. The totality of proceedings then came before Foster J on 15 September 2014. On that date an Order was made in the following terms:

    The proceedings for divorce filed by the wife on [sic] be transferred to the Federal Circuit Court of Australia and be listed in the duty list before Judge Harman on Wednesday 15 October 2014 at 9.30am.

    An Order was also made in the following terms:

    The husband be granted leave to file a Response to the Application for Divorce, that Response to be filed by no later than 9 October 2014.

    Orders were also made to address the procedural conduct of the substantive proceedings which had by then been commenced by the husband (see above) and with respect of which the wife would appear to have filed her responding material.

19. Following the Order for transfer, the substantive proceedings continued before Judges of the Family Court of Australia.  The parenting and property proceedings come before Johnston J on 2 October 2014 and subsequently before Hannam J, who is now seized of the matter and is part-heard.  I will return to that issue shortly. 

20. The Divorce proceedings came before me on 15 October 2014 on which date solicitors appeared on behalf of each of the parties. The husband had, by that date, filed a Response as directed by Foster J. The Response was not filed within the timeframe fixed by his Honour, but it had, by that date, been filed (having been filed on 14 October 2014). As indicated, that Response, the second filed, was discontinued by a Notice of Discontinuance filed 23 March 2015.

21. The hearing fee with respect to the listing today was to be paid by the husband. It has not been paid. That is not a matter of significance, purely to observe the husband’s abandonment of his Response and the Divorce proceedings.

Transfer to the Family Court of Australia

1. At the time that these proceedings were listed for hearing, it was noted that there were extant proceedings between the parties which remained listed before the Family Court of Australia and before which Court the Application for Divorce had previously been heard, (although the Application for Divorce was severed from the totality of proceedings and transferred to this Court by the Order recited above made 15 September 2014).

2. On 15 October 2014 the Court was advised by the solicitors for the parties that the proceedings before the Family Court of Australia would, in all probability, be concluded prior to today’s date. It was on that basis, and not wishing to cavil with the Order for severance and transfer that had been made, that a hearing date was allocated. As indicated above, since the Divorce Application came before this Court, the matter has commenced by way of substantive hearing before Hannam J. Indeed, on 20 October 2014, some few days after the listing before this Court, the matter came before her Honour and at that time a number of Orders and directions were made by her Honour. The proceedings have subsequently come before her Honour on each of 27 October 2014, 9 March 2015 and 17 June 2015.

3. The matter has also come to the attention of or been dealt with by a Registrar, whether in Chambers or otherwise, on each of 7 October, 9 October, 18 November, 9 December 2014, 27 January 2015, 6 February 2015, 31 March, 7 April 2015 and 22 May 2015. The last of those occasions was a scheduled Conciliation Conference which Conference could not proceed due to the husband’s absence overseas and the inability of his Counsel to contact him.

4. The husband’s failure to attend the Conciliation Conference is a matter which Counsel for the wife drew to the Court’s attention and suggested to support a finding that the husband has, throughout these proceedings, used this Court, the Family Court of Australia, and jurisdictions in Lebanon as a means of seeking to advance a vendetta against the wife, constituting a misuse of resources and an improper purpose for the engagement of those processes. Whether that is so or not I need not determine today.

5. I am conscious that the wife asserts that there has been substantial and significant family violence in her relationship with the husband. The wife asserts that the husband’s behaviours since the Application of Divorce was filed are a course of conduct constituting a continuation of the coercive and controlling family violence she experienced in the marriage. Lest there be any basis to that allegation, and I most assuredly do not dismiss it as there is some real merit to that which is asserted, I accept that there would be some emotional if not psychological benefit to the wife if her marriage to the husband was terminated sooner rather than later. Certainly her efforts in that regard have been frustrated for some little time since the filing of her Application 30 May 2014 some 14 months ago.

6. Since the Application for Divorce was filed, however, the parties have now become mired in substantial proceedings before the superior Court, the Family Court of Australia.

7. On the occasion that the matter was before Hannam J on 9 March 2015, a number of Orders were made by her Honour and brief reasons delivered by her Honour for those Orders. At that time her Honour discharged then extant parenting Orders which provided for the father’s time with the children. Her Honour referred, in the reasons delivered on that day, to a high level of conflict between these parties as had been brought to the Court’s attention through the evidence of the parties and a child responsive program memorandum. Her Honour also referred to other issues of concern with respect to the impact of parental behaviour and/or these proceedings upon these children.

8. Clearly, the substantive proceedings between these parties, dealing with issues of property adjustment and parenting, are not concluded. The Court is advised that following the Less Adversarial Trial event on 17 June 2015, the fifth such event, that the proceedings are adjourned to a date to be allocated once a Conciliation Conference has been properly concluded. Accordingly, the determination on a final basis of that matter is some little time away, although it is not known how far away.

9. The substantive proceedings before Her Honour will require some attention to be given by Her Honour to the evidence of these parties as to the date of separation. That is necessary as it will impact upon the parenting aspect of the proceedings and, perhaps more significantly, the property adjustment aspect of the proceedings. As indicated, the husband asserts that the parties had not, at the time that the wife filed her Application for Divorce, been separated for 12 months. Indeed, on the husband’s allegation, the parties separated on either 12 or 13 April 2014, and had been separated for about six weeks at most when the Application for Divorce was filed.

10. That is not to suggest that I am, for the purpose of today’s determination, having regard to the husband’s evidence. I am simply conscious from the bench sheets upon the file that there remains significant controversy between these parties as to their date of separation (as well as most other aspects of their relationship with each other, both pre and post separation, whenever that date may ultimately be found to be).

11. I do not doubt the wife’s evidence, save and except that I have some concern that two specific dates are alleged by the wife and that explanation to seek to reconcile them would occur in the absence of the husband and without notice to him. More profoundly and importantly, however, I am concerned that it would be mischievous for me to interfere in the process presently before the Family Court of Australia. As the matter is part-heard before a Justice of that Court, and as part of the judiciable controversy between these parties will include a determination of the date of separation of the parties, I am not satisfied that I could safely or appropriately proceed to hear and determine this Application today even on an undefended or unchallenged basis.

12. The discontinuance by the husband of his Response may, as I am urged to accept, be entirely mischievous. It may be that the husband has simply determined, for whatever reason, that he no longer wishes to prosecute his Response. I am not content that I could safely infer either of those or any other motives on the part of the husband.

13. Discontinuance of the husband’s Response does leave the Application undefended. Indeed, at the time that the matter first came before a Justice of the Family Court of Australia the same circumstance applied. The husband’s Response on that date was discontinued, withdrawn and/or dismissed. Accordingly, the matter might have been dealt with on that date.

1. I am not critical whatsoever of His Honour for not doing so, whether it arose from pressures in the list or, as may be equally probable, concerns that the evidence that had been filed alleged different dates and required testing. In any event, I am not satisfied, for the reasons above, that it would be appropriate for me to proceed to hear the Application today. I am satisfied that the totality of judiciable controversy between these parties should be heard and determined at the same time by the same Justice.

2. As Her Honour is a Judge of the Superior Court and is part-heard with respect to the substantive proceedings, I am satisfied that the determination of all judicial controversy should thus be undertaken by Her Honour. I am satisfied that the determination should be undertaken appropriately by her as a Judge of the Superior Court who is part heard in the substantive and associated proceedings and without the mischievous meddling that might be construed or might in reality occur as a consequence of a Judge of the Federal Circuit Court of Australia embarking upon a factual determination of a date of separation of these parties for the purpose of founding jurisdiction to pronounce a Divorce Order. 

3. For all of those reasons, I propose to transfer this Application to the Family Court of Australia, and subject to the view taken by Her Honour, to consolidate the hearing of the Application for Divorce with the balance of the Applications, plural as they are, before that Court.

4. Her Honour will, in dealing with the substantive proceedings, need to be satisfied on the available evidence, following its testing, as to the date of separation of the parties. That will be necessary for the purpose of dealing with the Part VIII and Part VII proceedings.  I am satisfied, in those circumstances, that it will not add to the workload of that Court which I am conscious to avoid doing. 

5. I also make clear that I do not intend any disrespect to either Hannam J or Foster J in returning this matter to that Court. As indicated, it would seem that the matter was commenced in this Court, and, as Counsel for the wife has today submitted, the proceedings were thus “returned” to this Court by Foster J by his Order made 15 September 2014, having been listed before His Honour by the Registrar, (although any “transfer” can only be inferred it not being expressed within the Order that was made listing the matter before his Honour Foster J. It is not to second-guess the Orders made by His Honour but to reflect the circumstances as they apply today.

6. There is a part-heard Application for substantive relief before a Judge of the Family Court of Australia. As indicated, I am not satisfied that it would be appropriate for this Court, a Court of inferior jurisdiction, to thus seek to interfere, potentially or in reality, with that process. It would undermine the integrity of one or both processes and would not provide aid in the exercise of jurisdiction between the Courts or aid the administration of justice[3]. For those reasons, I will make the Order for transfer.

   [3] As this Court is obliged to do – see section 47 of the Family Law Act 1975

Costs

1. I propose to deal with the issue of the wife’s costs.

2. These proceedings are listed before this Court as a consequence of the husband having filed a Response which removed the Application for Divorce from the uncontested jurisdiction of a Registrar, whether as a Registrar of the Family Court of Australia or a Sessional Registrar of the Federal Circuit Court of Australia. But for the husband having filed that Response and then having abandoned it, not once but twice, the Application would never have proceeded for the length of time that it has involving not less than 4 appearances. The Application for Divorce might also have been heard and determined on the first return date but for the husband’s actions, which he did not disclose, which rendered the wife’s appearance impossible.

3. I need not canvass the controversy as to the wife’s restraint from departure from other jurisdictions which precluded her attendance on the first occasion or to investigate the motivation for those proceedings as commenced by the husband. I simply need be concerned that the husband has now, on two occasions, and spread across a myriad of Court events, caused delay, frustration and, more importantly, cost for the wife in the prosecution of her Application for Divorce.

4. In dealing with costs, I must have regard to section 117 of the Family Law Act 1975.

5. Subsection (1) creates what is often referred to as “the general rule”, that each party will bear his or her own costs.

6. Subsection (2) reserves to the Court a discretion to make an Order for Costs in circumstances whereby the Court is satisfied that there is both a justifying circumstance and that it is just and equitable to do so (for a discussion of the dual test see the decision in Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812).

7. In determining each of those factors, the Court must have regard to each of the considerations in subsection (2A) of the Act. Those provisions are mandatory but not exhaustive.

8. The balance of provisions in section 117 of the Act are not relevant to this determination dealing, as they do, with Applications for Costs for or against the Independent Children’s Lawyer or a State welfare Agency.

9. I will deal briefly with each of the factors under section 117(2A) of the Act.

Financial circumstances of the parties

1. I have not read the substantive material filed by the parties in the property adjustment proceedings beyond that which has been identified by Counsel for the wife as relevant to this Application for Divorce.

2. Clearly the wife, and in all probability the husband, have incurred substantial and significant costs in prosecuting proceedings to date.  Neither of the parties would appear to be in a significantly strong financial position. The wife is in paid employment. The husband it would appear, at least on the wife’s allegation in her Affidavit material filed August 2014, has alleged that he is unemployed.

3. It is submitted on the wife’s part that the wife has, since separation, been effectively excluded from all property of the parties. Thus, whatever that property pool comprises, if that suggestion is correct, is within the control of the husband. In any event, the parties are involved in property adjustment proceedings and their financial circumstances will be fully and properly determined by Orders that will divide property between these parties. Thus, I am satisfied that any Order for Costs can be met by the husband if nothing else, as a charge against his interest in property.

Whether any party is in receipt of grant of legal aid

1. Neither is.

The conduct of the parties in relation to the proceedings

1. I am concerned that the husband has not once, not twice but thrice now frustrated the hearing and conclusion of this Application. On this occasion, the non-conclusion of proceedings is made more complex through the issues addressed above.

2. My concern that it would be mischievous and inappropriate for this Court to proceed to embark upon a hearing and seek to make findings of fact as regards the date of separation of the parties when that is a controversy already live before a Judge of the Family Court of Australia who is part-heard in proceedings, has led to the transfer of proceedings. However, this listing arose from a controversy created by the husband and now, again, abandoned.

3. This Application would not have ever been transferred to this Court, nor, for that matter, listed for hearing but for:

   a)The husband having filed the second Response; and

   b)The assurance by the solicitors for the parties, including the husband’s then attorneys, that the matter before the Family Court of Australia was in the process of being concluded. It would seem that the conclusion of that matter before the Family Court of Australia could have been achieved in accordance with that previous suggestion but for the husband’s lack of attention to the matter, particularly his failure to attend the Conciliation Conference.

4. In those circumstances, I have concern as to the husband’s conduct. That is not to suggest that his motivation is accepted as entirely mischievous. However, his conduct has had the effect of being mischievous, putting the wife to further cost not only financial cost, but “cost” in the broad sense as discussed by Kirby J in AMS & AIF (1999) CLR 160 - an anxiety and frustration of awaiting an outcome, anticipating that it might be so, and then frustrated again. The frustration is not entirely due to the husband’s actions, in light of the above reasons, but principally instigated by his actions.

5. I am satisfied that the husband’s conduct in requiting the fixing of a date for defended hearing of the Application which might and could otherwise have perhaps been dealt with, subject to the evidential issues above, on an uncontested basis at a much earlier date, represents a justifying circumstance.

Whether proceedings are necessitated by the failure of a party to comply with an order

1. That is not strictly relevant. However, the proceedings were necessitated as a consequence of the filing of a Response by the husband which has made the Divorce contested and required a listing for defending hearing. A defended hearing it may still need, although I am not satisfied, for the above reasons, that it would be appropriate for me to embark upon that today.

Whether a party has been wholly unsuccessful

1. It is difficult to gauge which party has been more successful or unsuccessful if, in fact, either has been. Certainly the Divorce has not proceeded, but not through any criticism of the wife or those representing her. Purely as a consequence of my concern that it would not be appropriate to proceed and would not represent this Court acting in aid of the Family Court of Australia for it to embark upon a hearing of evidence which is otherwise before a Judge of the Family Court of Australia who is part-heard in substantive hearings dealing with exactly the same evidence.

Whether a party has made an offer in writing

1. That is not clear. It is unlikely.

Such other matters as the court considers relevant

1. Irrespective of the husband’s motivation there is some real force to that asserted by Counsel for the wife. The wife has been led a merry dance with respect to this Application involving the husband’s various changes of heart as to the prosecution of his Responses, plural, and his initial action in rendering the wife unable to attend.

2. I am satisfied that it would be just and equitable for an Order for Costs to be made. The wife should not be made to bear the costs of today’s proceedings.

3. I propose to make an Order for Costs. In doing so I must have regard to Part 21 of the Federal Circuit Court Rules 2001. I am not bound by the indicative Scale of Costs set out in Schedule 1 and which I must consider and, departure therefrom can be considered.

4. By reference to that scale, I am conscious that this matter is listed today as a one day fixture and that some preparation has been required, although the Affidavit material that is relied upon with respect to the hearing today had been filed prior to the allocation of the hearing date.  That is perhaps explicable, as the wife had been required to prepare previously for a defended hearing, being the very defended hearing she had anticipated when the good Registrar listed the proceedings before Foster J.

5. The husband had then discontinued his Response prior to the matter coming before His Honour, but then on the date that the matter came before His Honour, then clearly indicating that he wished to renew his defence thereof. Thus, some preparation has certainly occurred.

6. Item 6 of the scale would allow preparation for the matter as a one day hearing at $4365. I am not satisfied that this amount would be warranted. Certainly there is some duplication in the evidence between the substantive proceedings which have always been before the Family Court of Australia and this Application, which at the time that material was prepared was also before the Family Court of Australia.

7. Material has been prepared, preparation has occurred, whether through Affidavit material, Conferences with this good lady or otherwise. Accordingly, I am prepared to allow one half of that amount as set out in the scale which would represent $2182.50.

8. There is also today’s appearance and the mention at which the hearing date was fixed. The mention was relatively brief, and, accordingly, I am satisfied that the scale amount of $278 is appropriate.

9. The matter is listed as a one day hearing and, even though the matter is concluded in one half of the day, I propose to allow item 13(b) being a one half day hearing.

10. I am prepared to certify as to Counsel and, accordingly, item 12 would provide an advocacy loading of 50 per cent. Thus, the hearing fee would be $1028 for a half day matter plus the advocacy loading of $514.

11. I am satisfied disbursements would also have been incurred with respect to the matter and some allowance should be made for those, although I do not propose to specifically identify an exact figure, that would be a somewhat arbitrary exercise.

12. The amounts that are referable to the above scale would equate to $4002.50. With some allowance with respect to disbursements including photocopying, service fees and the like I am satisfied that that the amount should be rounded to $4250. An Order will thus be made for that amount. 

13. I propose to allow a period of 28 days for payment before interest will accrue. At the expiration of 28 days, the wife will be entitled both to interest upon that sum or such portion of it as may remain outstanding from time to time and will be entitled to commence suit should she consider it necessary and appropriate for recovery of the amount.

14. I propose otherwise in the aid of enforcement to express the amount to be a charge upon the husband’s entitlements with respect to property adjustment such as may be determined either by consent between the parties, as unlikely as that may seem, or as is ultimately determined by Hannam J whom is part-heard in those proceedings.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  17 July 2015