Ioannou and Armand
[2017] FCCA 968
•9 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IOANNOU & ARMAND | [2017] FCCA 968 |
| Catchwords: FAMILY LAW – Property – undefended final hearing – no disclosure by husband – whether it would be just and equitable to make orders – contributions – future needs and obligations – costs. |
| Legislation: Family Law Act 1975, ss.75, 79, 80, 81, 106A, 117 Federal Circuit Court Rules 2001, reg.21.02 |
| Cases cited: Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545 In the Marriage of Briese (1985) 10 Fam LR 642; (1986) FLC 91-713 Omacini & Omacini (2005) 33 Fam LR 134 Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653 Rockman & Rockman [2014] FCCA 1966 Stanford v Stanford [2012] HCA 52 Warne & Warne (1982) 8 Fam LR 388 |
| Applicant: | MS IOANNOU |
| Respondent: | MR ARMAND |
| File Number: | SYC 5856 of 2015 |
| Judgment of: | Judge Monahan |
| Hearing date: | 1 May 2017 |
| Date of Last Submission: | 11 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duc |
| Solicitors for the Applicant: | Boyce Family Law |
| No appearance by the Respondent |
ORDERS
THE COURT ORDERS THAT:
Within 21 days of the date of these Orders the parties do all acts and things and sign all documents necessary to arrange and attend upon a settlement at which the following occur simultaneously:
(a)The Respondent transfer to the Applicant all of the Respondent's right, title and interest in the property located at Property A in the State of New South Wales being the whole of the land comprised in Folio Identifier (omitted) (“the home”);
(b)The Applicant refinance the home loans from (omitted) (Accounts ending (omitted) and (omitted)) (together, “the home loans”) secured by mortgage number (omitted) (“the mortgage”) against the home, as necessary to remove the Respondent’s name from the home loans; and
(c)The parties discharge the mortgage.
Subject to and without limiting the above Orders:
(a)Each party be solely entitled to the exclusion of the other to all property in the possession and/or control of such party as at the date of these Orders including, but not limited to all shares, jewellery, motor vehicles, furniture and other household items;
(b)Moneys standing to the credit of the parties in any bank accounts be the property of the party in whose name such bank account is held;
(c)Each party be solely liable for all debts and liabilities of any nature in the name of that party and/or in the name of or in connection with any business and/or company in which that party owns or has an interest and each party be solely liable for and indemnify the other against any liability encumbering any item of property which belongs to that party and/or any business and/or company in which that party has an interest; and
(d)Each party hereby foregoes any claims they may have to any superannuation benefit or insurance policy to or owned by the other and the party in whose name any such policy of superannuation or insurance shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
Within three months of the date of these orders, the Respondent pay the sum of $6,135.00 to the Applicant on account of the Applicant’s costs of these proceedings.
Each party do all acts and things and sign all documents as may be required to give effect to these Orders as and when required by the Orders.
If either party refuses or neglects to execute and return a document as required by these Orders, a Registrar of the Sydney Registry of this Court is hereby appointed under section 106A of the Family Law Act 1975 (Cth) to execute all documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to such documents so as to give effect to these Orders.
All extant applications be otherwise dismissed.
AND THE COURT DIRECTS THAT:
The Applicant cause the Respondent to be served, by way of substituted service, with a copy of this judgment and a sealed copy of these orders by way of sending a private message on Facebook by 4.00pm on 16 June 2017.
The Applicant cause a copy of today’s orders to be served upon her adult children Mr H and Ms S.
AND THE COURT NOTES THAT:
A.These orders are made following a final hearing on 1 May 2017 that proceeded on an undefended basis and judgment reserved on that date.
IT IS NOTED that publication of this judgment under the pseudonym Ioannou & Armand is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5856 of 2015
| MS IOANNOU |
Applicant
And
| MR ARMAND |
Respondent
REASONS FOR JUDGMENT
Introduction
These family law property proceedings were commenced by MS IOANNOU (formerly MS IOANNOU) (“the wife”) against MR ARMAND (“the husband”).
No material in response has been filed by the husband to date.
The proceedings came before me for final hearing on 1 May 2017 (“the final hearing”). At the final hearing, the wife was present and was represented by Mr Duc of counsel.
Given the husband’s non-appearance at the final hearing, the Court granted the wife leave to proceed on an undefended basis for the reasons given that day.
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”) or the Federal Circuit Court Rules 2001 (“the FCC Rules”).
Background
Relationship history
The wife asserts that the parties were married on (omitted) 1998 and commenced cohabitation on that date.
The wife also asserts that the parties separated on a final basis in January 2007, however remained living under one roof until February 2015, at which time the husband left the former matrimonial home.
The parties are not divorced.
The following sets out a summary of the relevant financial transactions alleged by the wife and as set out in her case outline document:
DATE EVENT (omitted) 1998 Wife purchases (omitted), (the (omitted) property) for $43,000. Borrows $26,000 from (omitted) bank secured by mortgage against the property. (omitted) 1999 Wife refinances loan once again with (omitted) bank, increasing the loan from $26,000 to $52,000. Loans surplus of $26,000 to Husband to assist him establish himself in Australia. (omitted) 2000 Wife refinances loan once again with (omitted) Bank, increasing the loan from $52,000 to $60,000. Loans the surplus of $8,000 to Husband for his personal use. (omitted) 2001 Wife sells the (omitted) property for $155,000. After repayment of the (omitted) loan and commission on the sale, she receives the net proceeds of sale of around $80,000. (omitted) 2001 Wife purchases the property located at Property A (the Property A property) for $320,000. Wife contributed $90,000 and borrowed $256,000 from (omitted) Bank secured by mortgage against the property. 2003 The loan from (omitted) Bank secured over the Property A property is refinanced with (omitted) Bank; loan increased from $245,000 to $285,000. Surplus of $40,000 is given to the Husband to search for employment or a business to purchase. 2006 The loan from (omitted) Bank secured over the Property A property is refinanced with (omitted). Loan increased from $270,000 to $320,000. $50,000 was loaned to the Husband for a business venture which ultimately failed. 2007 Parties take joint personal loan for $25,000 to purchase (business omitted) in (omitted) for $45,000. 2008 Husband sells (business omitted) for $30,000 without the Wife’s knowledge. Gives Applicant $15,000 of the proceeds of sale. May 2009 Parties purchase the mixed business (business omitted) in (omitted). 2013 Husband abandons the (business omitted) business.
Procedural history
The wife filed her Initiating Application on 1 July 2016.
As stated, the husband has not filed any material in response to date.
The matter first came before me on 27 October 2016. On that date I made orders for the husband to be served by way of substituted service via Facebook.
On 14 December 2016, I set the matter down for undefended hearing.
As stated, the final hearing proceeded on 1 May 2017 on an undefended basis and judgment was reserved on that date.
The husband has not appeared at Court on any occasion that the matter has been before me.
Legislative requirements
Property proceedings between parties to a marriage are governed by the provisions of Part VIII of the Act, and more specifically, section 79.
Section 79
Section 79(1) of the Act states that the Court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79(2) of the Act provides that:
The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in the property, section 79(4) of the Act sets out those matters which the Court must take into account when considering what orders should be made. Section 79(4) provides:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4)(e) requires the Court to have regard to the following matters set out in section 75(2) of the Act:
The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
These legislative requirements will be further considered in light of the available evidence in these reasons yet to follow.
Approach to exercise of discretion
The approach to the exercise of the Court’s discretion has been outlined in numerous judicial decisions. The High Court in the decision of Stanford v Stanford [2012] HCA 52 (“Stanford”) held that before making any orders adjusting the parties’ interests in the property pursuant to section 79 of the Act, the Court must, as required by section 79(2) of the Act, determine that is “just and equitable” for the Court to do so. At paragraph 42 the High Court stated that in most cases:
The just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
Prior to the decision in Stanford, the preferred approach in determining property matters was that set out by the Full Court of the Family Court of Australia (“Full Court”) in the matter of Hickey v Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; (2003) FLC 93-143 (“Hickey”). At paragraph 39 Nicholson CJ, Ellis and O’Ryan JJ stated:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…
This approach was reconsidered by the Full Court in Bevan v Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (“Bevan”) in light of the High Court’s comments in Stanford. At paragraph 71, Bryan CJ and Thackray J stated:
Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.
In Bevan & Bevan (No.2) [2014] FamCAFC 19; (2014) FLC 93-572 (“Bevan No. 2”) the Full Court, having upheld the appeal against the decision at first instance, proceeded to re-determine the property application before the Court. At paragraphs 18 to 19, Bryant CJ and Thackray J stated:
18. Senior counsel for the husband structured his submissions by reference to the “four-step” approach to property settlement applications discussed in our earlier reasons. By way of explanation for doing so, senior counsel said:
16. The adoption of the above [four-step] approach is not intended to presuppose a positive answer to the question posed [by] section 79(2), nor to suggest that it is an approach appropriate in all proceedings. Rather, and provided that the fundamental propositions outlined by the High Court in Stanford (2012) … are not obscured, such approach is intended to and does no more than provide a principled, disciplined and structured means by which all of the matters arising for consideration pursuant to section 79 can be conveniently and properly identified and assessed.
17. Further, and whilst not said critically nor in a matter which seeks to cavil with the decision in this appeal, no other approach to the determination emerges readily from either Stanford nor the decision in this appeal. It is respectfully submitted that provided that the ‘fundamental propositions’ articulated in Stanford are not obscured, and whilst not universally so as has always been recognised, the approach set out above continues to provide a proper, transparent, certain and structured approach to the presentation and determination of applications pursuant to section 79.
19. We have no issue with what senior counsel has said about the utility of the four-step process, which we accept provides a convenient way to structure both submissions and judgments, provided the caveat mentioned is not overlooked.
The “caveat” referred to by the Full Court is the requirement that the Court must first be satisfied that it is just and equitable to make an order adjusting property between the parties.
In the subsequent decision in Rockman & Rockman [2014] FCCA 1966 (“Rockman”), Judge Bender noted at paragraph 83 that the “High Court in Stanford neither disapproved or approved the four steps process”. I agree with Her Honour’s observation. That said, the High Court did lay down what they described as three “fundamental propositions” which would provide useful guidance to trial judges when undertaking the task under section 79 of the Act. I note that in Bevan, Bryant CJ and Thackray J summarised those fundamental principles at paragraph 73 as follows:
1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3. A determination that a party has a right to a division of property fixed by reference only to the matters of s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
I also agree with the view expressed in Rockman that subsequent Full Court and single judge considerations of Stanford suggest that the path that may best “illuminate the path to the ultimate result” could now best be described as the following “five step process”:
(a) firstly, what is the parties’ legal and equitable interests in property;
(b) secondly, is it just and equitable to make an order adjusting the parties legal and equitable interests in that property;
If the answer to (b) is in the affirmative:
(c) thirdly, identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) of the Act and determine the contribution-based entitlements of each party as a percentage of the net value of the property of the parties;
(d) fourthly, identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g) and s.75(2) of the Act and determine the adjustment, if any, that should be made to the contribution-based entitlements of each party as a percentage of the property of the parties; and
(e) fifthly, given s.79(1) empowers the court to make such orders affecting the parties’ interest in the property as are appropriate, determine what order, if any, altering the parties’ interests are “appropriate” to enable the parties’ entitlements as determined pursuant to steps (c) and (d) to be achieved.[1]
[1] Rockman & Rockman [2014] FCCA 1966 at [84].
The Court will adopt this process for this decision.
Section 80
In addition to the specific powers provided by section 79(1) to adjust property interests, section 80(1) provides the Court with the following general powers:
The court, in exercising its powers under this Part, may do any or all of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
(ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e) appoint or remove trustees;
(f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
Section 81
For completeness, I note that the Court must also consider section 81 of the Act which states:
In proceedings under [Pt VIII], other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
While section 81 of the Act is clearly relevant to the making of a property order, it is neither a ‘head of power’ nor an absolute requirement. This was the view of the Full Court in In the Marriage of Crapp and Crapp (No.2) (1979) 5 Fam LR 47; (1979) FLC 90-615:
Firstly s 81 is in the nature of an exhortation by the legislature to the courts and is not a separate source of power and secondly the section itself states that the policy of making orders which finally determine the financial relationship between the parties and avoid further proceedings is only to be taken ‘as far as (is) practicable’. Nevertheless it is true to say that it is unsatisfactory in the general context of the philosophy of the Family Law Act for a really significant issue between parties who are divorced and have gone their separate ways to remain in suspended animation for a number of years.[2]
[2] (1979) 5 Fam LR 47 at 61 (per Fogarty J; Pawley and Dovey JJ agreeing).
The practical effect of section 81 of the Act is that the Court must endeavour to make an order that finalises the financial relationship between the relevant spouses, but it does not require the Court to make an order that achieves finality. That said, for the comments previously made, and as far as it can be achieved, I see clear benefit in orders being made that will finalise the financial relationship between the parties to this case.
The Court will now consider the proposals for property settlement in light of the statutory considerations and available evidence.
Proposals
At the final hearing the wife sought the following orders:
1. Within 14 days of the date of these Orders the parties must do all acts and things and sign all documents necessary to arrange and attend upon a settlement at which the following must occur simultaneously:
(a) The Respondent must transfer to the Applicant all of the Respondent's right, title and interest in the property located at Property A in the State of New South Wales being the whole of the land comprised in Folio Identifier (omitted) (“the home”);
(b) The Applicant must refinance the home loans from (omitted) (Accounts ending (omitted) and (omitted)) (together, “the home loans”) secured by mortgage number (omitted) (“the mortgage”) against the home, as necessary to remove the Respondent’s name from the home loans; and
(c)The parties must discharge the mortgage.
2. Subject to and without limiting the above Orders:
(a) Each party is solely entitled to the exclusion of the other to all property in the possession and/or control of such party as at the date of these Orders including, but not limited to all shares, jewellery, motor vehicles, furniture and other household items;
(b) Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c) Each party is solely liable for all debts and liabilities of any nature in the name of that party and/or in the name of or in connection with any business and/or company in which that party owns or has an interest and each party shall be solely liable for and indemnify the other against any liability encumbering any item of property which belongs to that party and/or any business and/or company in which that party has an interest; and
(d) Each party hereby foregoes any claims they may have to any superannuation benefit or insurance policy to or owned by the other. The party in whose name any such policy of superannuation or insurance shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
3. That each party shall do all acts and things and sign all documents as may be necessary to give effect to these Orders as and when required by the Orders.
4. If either party refuses or neglects to execute and return a document as required by these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed under section 106A of the Family Law Act 1975 (Cth) to execute all documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to such documents so as to give effect to these Orders.
In addition, the wife also sought an order for the husband to pay her legal costs.
As stated, the husband did not file any material and, consequently, there is no proposal put forward on his behalf.
Issues
The following issues are relevant:
·the husband’s failure to provide full and frank financial disclosure;
·determining the value of the property ‘pool’;
·the parties’ contributions made prior to and during the relationship and following separation;
·the parties’ respective future needs and obligations;
·achieving a just and equitable property settlement, particularly in circumstances where the husband has not participated in the proceedings; and
·whether the husband should pay any costs on account of the wife’s costs of these proceedings.
Evidence
The wife relies on the following documentation filed on her behalf:
·Initiating Application filed 1 July 2016;
·her affidavit sworn and filed 28 February 2017;
·her Financial Statement filed 28 February 2017;
·Affidavit of Mr N sworn and filed 9 December 2016; and
·Affidavit of Mr G sworn and filed 28 February 2017.
The Court also granted the wife leave to rely on an additional affidavit sworn and filed on 11 May 2017, received by Chambers on 11 May 2017.
The wife also provided the Court with a case outline document.
Again, as stated, the husband did not file any documents in these proceedings.
Given the husband’s non-participation, the wife was not cross-examined.
Discussion
The Court will now consider the wife’s proposal and submissions in light of the legislative requirements and the available evidence.
Identifying and valuing the parties’ interests
As stated, the Court must first identify and value the parties’ property, liabilities and financial resources. Generally speaking, the identification and valuation is at the date of the final hearing.[3] This will enable the Court to ascertain the net property pool.
[3] Warne & Warne (1982) 8 Fam LR 388 at 389 (per Simpson J; Strauss and Hase JJ agreeing); also see Omacini & Omacini (2005) 33 Fam LR 134 at 142 (per Holden, Warnick and Le Poer Trench JJ).
Prior to considering this step further, the Court will consider the preliminary issue of the husband’s lack of disclosure of his financial circumstances.
Issues of disclosure
There is a clear obligation on a party to proceedings in family law matters to make a full and frank disclosure of all relevant financial circumstances. The mere compliance with rules of the Court or practice directions does not alter the basic principle of the need for full and frank disclosure.[4]
[4] As discussed in the cases of In the Marriage of Briese (1985) 10 Fam LR 642; [1986] FLC 91-713 and Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653.
The Rules of this Court provide for all parties to make full and frank disclosure of all relevant financial circumstances in family law matters.[5]
[5] See regulation 24.03 of the Federal Circuit Court Rules 2001.
Apart from requiring each party in financial proceedings to file a Financial Statement, the Rules also require the production and supply of relevant documentation. If one party fails to fulfil that obligation, it would theoretically be “open to that party to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require”.[6]
[6] Guinti and Giunti (1986) 11 Fam LR 160 at 165; [1986] FLC 91-759 at 75,555.
As the Full Court observed in Guinti and Giunti (1986) 11 Fam LR 160; (1986) FLC 91-759:
It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.[7]
[7] Ibid.
In the case of In the Marriage of Briese (1985) 10 Fam LR 642; (1986) FLC 91-713 (“Briese”), Smithers J, after referring to the decision of the House of Lords in Livesey v Jenkins [1985] All ER 106, stated:
I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required. " In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred.[8]
[8] In the Marriage of Briese (1986) FLC 91-713 at 75,181.
These comments were approved by the Full Court in the case of Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653 (“Oriolo”).[9] Moreover, the Full Court in Oriolio also approved[10] the following ‘principles’ stated by Smithers J in Briese [emphasis added]:
The wife has sought an order that the husband pay her legal costs of the proceedings. She relies upon the husband's conduct of the litigation, which in a number of respects I have referred to in this judgment. This conduct has had the effect of very greatly increasing the costs of the wife. The husband's counsel submitted that it was a matter for the wife to pursue her rights under the Family Law Regulations and that there was no positive obligation on the husband to do more than comply strictly with the Regulations and with orders of the court. He likened his client's position in this respect to that of a defendant in a civil action.
In my opinion this submission is not correct. I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding.
In this case it is possible, but I believe largely with the benefit of hindsight, to suggest one or two other strategies which the wife could have employed in her search for the facts before the trial. On the whole however, I do not believe that her case was conducted other than appropriately and reasonably. It was in the power of the husband to curtail the costs by making adequate disclosure.[11]
[9] Oriolo v Oriolo (1985) FLC 91-653 at 80,256-7.
[10] Ibid at 80,256.
[11] In the Marriage of Briese (1986) FLC 91-713 at 75,180-1.
The issue of deliberate non-disclosure was raised in the case of Black & Kellner (1992) FLC 92-287; 15 Fam LR 343 (“Black”). In Black, the Full Court found that the “assets of the parties could not be ascertained in full because of obvious non-disclosures.”[12] This non-disclosure impacted on the ability of the first instance Court to properly ascertain and distribute the matrimonial property. The matter before the Full Court was an appeal by the husband, who was the party who had not made full and frank disclosure, against an order entitling him to a miniscule portion of the property brought into the relationship by the mother. In his judgment, Nicholson CJ (with Ellis and Cohen JJ agreed) dismissed the husband’s appeal, stating:
I might perhaps add that speaking for myself, although I note that there is no cross-appeal, I would have been disposed to find that the appellant was entitled to nothing, and certainly would not have interfered with a decision by his Honour dismissing the husband's claim entirely. Indeed it may well be that he was fortunate to get the award that he did.[13]
[12] Black & Kellner (1992) 15 Fam LR 343 at 347.
[13] Ibid, at 348.
Moreover, in the case of Weir & Weir (1993) FLC 92-338; (1992) 16 Fam LR 154 the Full Court, (this time comprised of Nicholson CJ, Strauss and Nygh JJ) stated:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.[14]
[14] Weir & Weir (1992) 16 Fam LR 154 at 159.
Given the evidence before the Court, it is not possible for the Court to make any finding as to the husband’s motives for choosing not to participate in these proceedings.
In the Full Court decision in Chang & Su [2002] FamCA 156 (“Chang”), Kay, Dawe and Finn JJ found that where there has not been full and frank disclosure of financial circumstances by a party, it is open to a Court to find that an indeterminate undisclosed amount is held by one of the parties and to make property orders without reference to an overall pool.
The case of Chang was more recently considered by Judge Burchardt of this Court in Irvine & Irvine (No.2) [2013] FCCA 1076. At paragraph 78 of that decision his Honour found that:
The wife should retain her car and any chattels in her possession. There is nothing the Court can do to value the husband’s assets. This is a case of the sort identified in the case of Chang v Su (2002) FLC 93-117. The Court has been deprived of any meaningful knowledge of the husband’s assets and possessions by virtue of his own adamantine refusal to participate in the proceeding. The Court should take a robust approach, and I have done so. The result, in my view, is eminently just and equitable.
In this case, the husband has not complied with his obligation to provide ‘full and frank disclosure’ or provided any evidence to assist the Court.
I find that the pool of assets is not able to be fully ascertained given the lack of participation and evidence from the husband. That said, certain findings are still possible on the strength of the available evidence.
Asserted assets and liabilities
The following table represents the assets asserted by the wife at the time of the final hearing and, as noted, uncontested by the husband:[15]
[15] In the table, ‘H’ refers to property registered in the Husband’s name or otherwise legally owned by him or in his possession; ‘W’ refers to property registered in the Wife’s name or otherwise legally owned by her or in her possession; and ‘J’ denotes property registered in the joint names of the Husband and the Wife.
Non-Superannuation Assets Property A (J) (1/2 share) $387,500.00[16] (omitted) Bank Account ending (omitted) (W) $344.00[17] (omitted) Ford (W) $10,000.00[18] Household Contents (W) $3,500.00[19] Sub-total $401,344.00 Superannuation Not applicable (W) $Nil[20] Unknown (H) Not known Sub-total $Nil/Not Known Liabilities (omitted) Loan Account ending (omitted) (J) $106,249.00[21] (omitted) Loan Account ending (omitted) (J) $14,281.00[22] Sub-total $120,530.00 Net Assets $280,814.00 [16] Based on Valuation Report by Mr G as at 28 February 2017: see Affidavit of Mr G filed 28 February 2017. The parties are registered as joint tenants together with the wife’s two children, Mr H and Ms S. The wife argues that she and the husband have, in effect, a one half interest in the property.
[17] See Wife’s Financial Statement filed 28 February 2017, item 37.
[18] Based upon a ‘Redbook’ valuation report: see Wife’s Affidavit filed 28 February 2017, paragraph 10.3 and Annexure “C”.
[19] This is an asserted value only.
[20] The wife’s evidence is that she is retired and reliant on the aged pension. She asserts that she accessed her superannuation following her retirement and used those funds to reduce the mortgage liability.
[21] This is the closing balance as at 23 January 2017: see Wife’s Affidavit filed 28 February 2017, paragraph 10.4 and Annexure “D”.
[22] This is the closing balance as at 3 February 2017: see Wife’s Affidavit filed 28 February 2017, paragraph 10.5 and Annexure “E”.
As stated, the Court does not know the husband’s financial position in relation to assets, liabilities and financial resources. Given the wife’s valuation and related evidence is unchallenged, and in the absence of evidence to the contrary, the Court will accept the evidence and sums she asserts above.
Based on the above table, the Court finds that the net asset pool is valued at $280,814.00.
Is it just and equitable to make any order?
The wife is before the Court seeking orders altering the property interests between herself and the husband. The parties were married for over seven years prior to separating under the one roof a decade ago. They physically separated over two years ago.
The wife argues that the orders she proposes, which largely reflects the situation that has existed since separation,[23] would be just and equitable in line with the decision in Stanford.
[23] That is, in the sense that the wife lives in the former matrimonial home and has been solely responsible for the mortgage payments since the parties separated a decade ago.
The decision in Stanford makes it clear that the requirement for the Court to only make orders that are just and equitable is not to be conflated with the matters to be considered under section 79(4) in considering what order (if any) should be made. The High Court described the expression ‘just and equitable’ at paragraph 36 as “a qualitative description of a conclusion reached after examination of a range of potentially competing considerations... It is not possible to chart its metes and bounds.”
However, the High Court went on to comment that there are three fundamental propositions that must not be obscured:
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers “altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs " as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which " rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong:
“The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down”.
39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is " just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that " [c]ommunity of ownership arising from marriage has no place in the common law" . Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses" . The question presented by s 79 is whether those rights and interests should be altered.
40. Third, whether making a property settlement order is “just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.[24]
[24] Footnote references have not been included in this extract.
The Court is satisfied that the wife does have a Stanford argument which could be explored. She currently lives alone in the former matrimonial home and continues to pay the home loan secured mortgage.
Contributions
As stated, the Court is required to consider the parties’ contributions made on and from the commencement of their relationship,[25] during their relationship and following separation.[26]
[25] In the Marriage of Olliver (1978) 4 Fam LR 360; (1978) FLC 90-499.
[26] In the Marriage of Ferraro (1992)16 Fam LR 1; (1993) FLC 92-335.
Financial and non-financial contributions
In respect of financial contributions, the wife asserts that the husband did not make any substantial financial contributions towards the acquisition of the (omitted) or the Property A properties, the relevant mortgage repayments, or the household expenses. The wife says the husband was only employed for short and intermittent periods throughout the relationship and that he did not repay the wife any of her loans to him.
In respect of non-financial contributions, the wife acknowledges that the husband contributed in this respect, however says that she completed all housework and paid all day-to-day household bills.
The wife submitted the following in her case outline document:
Financial Contributions
At the time of cohabitation:
(a) the Husband had nominal assets; and
(b) the Wife owned a property located at (omitted), which she had purchased in (omitted) 1998 for approximately $43,000.
The Wife subsequently sold the (omitted) property in around (omitted) 2001 for approximately $155,000 and purchased the Property A property for approximately $320,000.
The Wife contributed a total of approximately $90,000 towards the acquisition of the Property A property; $80,000 from the net proceeds of sale of the (omitted) property and $10,000 from her personal savings. The balance of the purchase price was paid from the proceeds of a loan with (omitted) Bank secured by mortgage against the property.
The Husband made no direct financial contribution towards the acquisition of the (omitted) property and/or the Property A property.
The Wife was the main breadwinner during the marriage, having consistently performed paid work throughout the course of the relationship. The Wife's wages were applied towards the household living expenses, in support of her 2 children from a previous relationship and to meet repayments of the home loans.
The Husband had short and intermittent periods of employment during the marriage. The Husband worked in 1999 before claiming worker's compensation after around one year of employment. He was unemployed from 1999 to 2002. From 1998 to 2002, he did not contribute to the mortgage or household bills.
In (omitted) 2002, the Husband again obtained employment and made a further worker's compensation claim in early 2003, which was successful. From 2003 to 2006 the Husband was unemployed with no income.
In 2007 and from 2009 to 2013 the Husband ran a couple of unsuccessful businesses which were acquired using funds loaned to him by the Wife. The Husband made no financial contributions towards the mortgage or household expenses from the income of the businesses and he did not repay any loans provided to him by the wife.
In 2010 the Husband found employment. Within 2 months he had claimed worker's compensation a third time, and received a payment from (omitted) from (omitted) 2010 to (omitted) 2013 of an amount which is unknown by the Wife.
The Wife has given the Husband numerous loans throughout the relationship, none of which have been repaid to her. These are as follows:
1. $26,000 in (omitted) 1999; and
2. $50,000 in 2006.
The Wife has also gifted the Husband $8,000 in (omitted) 2000 and $40,000 in 2003.
Following separation in January 2007, the husband refused to vacate the former matrimonial home and made no contribution to the mortgage and household expenses. He left the former matrimonial home in February 2015.
It is submitted that the husband has made no substantial financial contributions towards the acquisition of the net asset pool; rather, he was a financial burden during the marriage with the effect that the Wife has been left worse off financially as a result of her union with the Husband.
Non-Financial Contributions
The Wife undertook all the housework during the marriage, including preparing meals, house cleaning, washing, ironing, vacuuming and payment of day to day household bills during the marriage.
The husband made substantial contributions in this regard during the marriage.
Overall, I find that the wife has made the substantial financial and non-financial contribution to the property of the marriage.
Family contributions (as homemaker and parent)
The wife asserts that she was responsible for all the domestic chores as a homemaker and day to day care and maintenance of the matrimonial home including cooking, shopping and so on. She further asserts that the husband made no such substantial contributions to the running of the household.
Consequently, I find that the wife has made a significant contribution to the family pursuant to section 79(4)(c).
Global or asset-by-asset assessment of contributions
Given the circumstances of this case, I am, satisfied that the ‘global’ approach to the assessment of contributions is the most appropriate.
Contributions analysis
Given the available evidence, the Court is satisfied that the wife’s contributions vastly exceed those made by the husband.
In percentage terms, I find that the final assessment of contribution is 90% in favour of the wife and 10% in favour of the husband.
Section 75(2) (and related) factors
As stated, the Court must have regard to the relevant factors under section 79(4)(d) to (g) of the Act in light of the evidence.
The wife seeks an adjustment in her favour mainly to the fact that she is unable to work due to medical reasons and is solely reliant on Centrelink benefits.
Section 79(4)(d): effect of any proposed order upon the earning capacity of either party to the marriage
As stated, the wife is unable to work due to medical reasons and is solely reliant on Centrelink benefits. The husband’s circumstances are unknown.
Given the available evidence, I find that the effect of any proposed order would not impact upon the earning capacity of either party.
Section 79(4)(e): matters referred to in sub-section 75(2) so far as they are relevant
(a) The age and state of health of each of the parties
The parties are both aged in their sixties.
The wife asserts she was diagnosed with Stage 3 Lymphoma cancer in (omitted) 2015. She asserts that she has been treated for this condition, however remains unwell with an uncertain long term prognosis. The wife also asserts that she suffers from chronic kidney stones which cause her to require overnight hospitalisation every six to eight weeks for treatment.
There is no evidence as to the husband’s current health.
(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The wife is retired and asserts that in any event, she is unable to work due to her health conditions. The wife asserts she is solely reliant on the aged pension and has no other source of income.
There is no independent evidence before the Court about the husband’s current income or his present capacity for work. That said, in her case outline the wife states:
The Husband is able to work when he wants to but has a poor work history due to reasons for which he alone is responsible. So far as the wife is aware, he is in good health and is capable of securing paid employment, should he so decide. The wife has been informed in January 2017 by a mutual friend that the husband has found employment.
(c) Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
This consideration is not relevant.
(d) Commitments of each of the parties that are necessary to enable the parties to support:
(i) himself or herself;
(ii) a child or another person that the party has a duty to maintain
I refer to the above comments.
(e) The responsibilities of either party to support any other person
I refer to the above comments.
(f) The eligibility of either party for a pension, allowance or benefits…
The wife is in receiving the aged pension from Centrelink. The husband’s circumstances are unknown.
(g) Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable
Given that the Court does not have the benefit of any evidence from the husband it is difficult for the Court to make any finding in respect of this criterion.
(h) Extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
This consideration is not relevant.
(ha) The effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
I am satisfied that on the evidence presented, there are sufficient assets to satisfy the claims of all known creditors. The wife asserts that she will be able to re-finance the mortgage loans in order to assume all responsibility for the debt.
(j) Extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
This consideration is not relevant.
(k) Duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
This consideration is not specifically relevant to this dispute.
(l) Need to protect a party who wishes to continue that party's role as a parent
This consideration is not relevant.
(m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation
As stated, the Court is not aware that either party is cohabiting with another person.
(n)Terms of any order made or proposed to be made under section 79
As the wife is not seeking spousal maintenance this consideration is not relevant.
(naa) Terms of any order or declaration made, or proposed to be made, under Part VIIIAB
This consideration is not relevant to the present dispute.
(na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
This consideration is not relevant.
(o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
There are no other factors which the justice of the case requires to be taken into account that have not been discussed previously in this decision.
(p) The terms of any financial agreement that is binding on the parties to the marriage
This consideration is not relevant to the present dispute.
(q) The terms of any Part VIIIAB financial agreement that is binding on a party to the marriage
This consideration is not relevant to the present dispute.
Further adjustment analysis
In light of the above-mentioned circumstances, the Court finds that there should be an adjustment in her favour pursuant to section 75(2) and related factors. Although the Court acknowledges that the husband’s circumstances are unknown, I am still satisfied that an adjustment in the wife’s favour of 10% is appropriate given all the circumstances.
Consequently, this would entitle the wife to 100% of the net asset pool.
Given this determination, it is not necessary to consider the wife’s alternate argument based upon Stanford.
Conclusion
Overall, the Court is satisfied that the wife should receive 100% of the net known matrimonial property.
As to specific final Orders, the Court will adopt the substance of the Orders sought by the wife, with some modifications.
There will be orders for the husband to transfer his interest in the Property A property to the wife, and for the wife to refinance the home loans in her sole name, and for the parties to discharge the relevant mortgage.
There will be a further order enabling both parties to retain all other property, including real and personal property, in their respective names, possession and/or control.
To the extent that it may be necessary, there will be an order pursuant to section 106A of the Act as sought by the wife.
The Court is satisfied that the above outcome is just and equitable.
I note that the wife sought her costs of these proceedings. Pursuant to regulation 21.02 of the Rules, this Court has the power to make an order for costs at any stage in a proceeding. In family law matters, the Court also needs to consider section 117(1) of the Act which states the principle that each party shall pay their own costs. The exception to that rule is contained in section 117(2), which relates to circumstances where the Court finds there is justification for departing from the principle. This exception is subject to the matters referred to in section 117(2A) which states:
In considering what order, if any, should be made under subsection (2), the Court will have regard to:
(a) The financial circumstances of each of the parties to the proceedings;
(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) The conduct of the parties to the proceedings in relation to the proceedings, including - without limiting the generality of the foregoing - the conduct of the parties in relation to the pleadings, particulars, discovery, inspection, directions to answer questions, admission of the facts, production of documents and similar matters;
(d) Whether the proceedings were necessitated by a failure of a party to the proceedings to comply with the previous orders of the Court;
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) Any such other matters as the Court considers relevant.
I am satisfied that the circumstances of this case justify the making of a costs order against the husband and in the wife’s favour. The wife has been required to seek that her application be fully considered at a final hearing due the husband’s non-participation.
Unless the Court otherwise specifies, costs are paid on a “party/party” basis. “Party/party” costs are costs necessarily incurred and paid at a reasonable rate. The Rules incorporate a Schedule of costs as a guide to party/party costs in family law proceedings. Party/party costs would not ordinarily cover all the legal costs incurred by a party. In contrast, “indemnity” costs are ordered when the Court intends the costs order to cover all the legal costs reasonably incurred by that party. When a costs agreement is involved, the charges to be imposed on the other party are subject to the requirement of reasonableness. I note that “indemnity costs” are not defined in the Rules.
In this case there is evidence that the wife has incurred legal costs totalling $23,152.37.[27] That said, I note that during submissions, the wife did not press the Court for indemnity costs in the circumstances and that, if the Court thought it appropriate, the wife would seek her costs on a party/party basis in accordance with the Schedule to the Rules.
[27] Affidavit of William Jason Boyce sworn and filed 11 May 2017, p. 3.
Having had regard to the relevant Schedule, I am satisfied that a costs order in the sum of $6,135.00 is reasonable and should be made. That sum is made up as follows:
Date
Item No.
Amount
27 October 2016
Item 1[28]
$2,456.00[29]
14 December 2016
Item 13[30]
$294.00
1 May 2017
Item 6[31]
$2,304.00
1 May 2017
Item 13[32]
$1,081.00
Total:
$6,135.00
[28] Item 1: Initiating or opposing an application up to the completion of the first court date.
[29] This includes both (a) and (b) in Item 1.
[30] Item 13: Daily hearing fee … (a) for a short mention.
[31] Item 6: Preparation for final hearing – one day matter (reduced by 50% as matter proceeded undefended).
[32] Item 13: Daily hearing fee … (b) for a half day hearing.
I will allow the husband three months in which to pay such costs following service of the relevant Court orders. I acknowledge the difficulties that the wife may have in receiving payment of these costs given that the whereabouts of the husband are unknown.
Lastly, there will also be an Order for the wife to cause a copy of the orders made and a copy of this judgment to be served on the Respondent by way of substituted service via Facebook within seven days of the date of this decision.
There will be orders and notations of the Court set out at the commencement of these reasons to reflect this decision.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 9 June 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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Jurisdiction
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