Jones and Jones

[2007] FamCA 641

FAMILY COURT OF AUSTRALIA

JONES & JONES [2007] FamCA 641

FAMILY LAW - PROPERTY - Orders - Application for variation

APPLICANT: MR JONES

RESPONDENT: MS JONES

FILE NUMBER: NCF 687 of 2006

DATE DELIVERED: 14 May 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: Mullane J

HEARING DATE: 14 May 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Fielden of Legal Aid Commission of NSW,

Solicitors

SOLICITOR FOR THE RESPONDENT: Mr Leddingham of Messrs Kingston Swift, Solicitors

Orders

1. The husband’s Application in a Case filed on 9 March 2007 is refused and dismissed.

2. The husband must pay to the wife’s solicitors within 28 days a sum of $2,000 towards her costs of opposing the application.

3. By consent in the event that the husband does not pay the amount of such costs to the wife within 28 days of this Order then the wife shall be entitled at her option either to:

   3.1sell such portion of the I shares in the joint ownership of the parties as were to be transferred to the husband pursuant to Order 5 made 15 February 2007 as may be necessary to satisfy the amount of costs outstanding;  or

   3.2retain in her own name such of the said I shares as may be of equivalent value to the amount of costs ordered to be paid by the husband, the date of such value to the ASX sale value as at fourteen (14) days from the date of this order.  

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Jones & Jones.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 687 of 2006

MR JONES

Applicant

And

MRS JONES

Respondent

REASONS FOR JUDGMENT

1. In this matter, the husband was a party to consent orders by the wife altering the property interests of the parties under s 79 of the Family Law Act in February 2007.  He, I am told, suffers from a mental illness and he says that he was affected by that illness at the time and submits that his consent was not a real consent because of the effect of the illness.

2. However, he has made no application to disturb the orders, but instead filed an application seeking a stay.  

3. But there is no medical evidence to indicate that he had any illness or the effect of that illness if he did.

4. In the circumstances, there is no basis for the stay application because he does not provide any evidence to suggest that there is an invalidity about the orders that were made and also because there are no proceedings pending whereby anyone is attempting to set those orders aside or disturb them in any other way.

5. Accordingly, there is no basis for the application.

   RECORDED   :   NOT TRANSCRIBED

6. The usual rule in relation to costs in proceedings under the Family Law Act is set out in sub-s (1) of s 117 and that provides that, subject to certain other provisions, one of which is sub-s (2), each party should pay his or her own costs.

7. Subsection (2) gives the Court power to make an order for costs where it is satisfied that the circumstances justify an order and it says that that power should be exercised having regard to the matters set out in sub-s (2A)

8. The first of those matters in sub-s (2A) is the financial circumstances of the parties.  I am not aware of the wife's circumstances.  I am aware that there is property that is the subject of orders for alteration of the interests of the parties in the property and I am aware that the husband has been suffering an illness, he says of such a serious nature that it is unlikely that he has been in employment certainly since February 2007.

9. Paragraph (b) is whether any party to the proceedings are in receipt of assistance by way of Legal Aid.  The husband has representation today, but only by way of a Duty Solicitor and did have private representation, apparently not by way of Legal Aid when the matter was first filed on 9 March 2007 and also the appearance on 19 March 2007 before the Registrar.

10. The paragraph says the conduct of the parties to the proceedings in relation to the proceedings. I take into account in that regard that the application was filed in circumstances where there was no application to disturb any orders made under s 79 and the husband notwithstanding that was seeking a stay. In addition, I take into account that the basis of the application at the time it was filed was as set out in his affidavit was his allegation that he had not signed the document, the consent orders and had not consented to them.

11. Directions were made on 19 March 2007 for him to provide expert evidence in relation to the signature on the document purporting to be his and by comparison with his genuine signatures.  That has not happened and it seems that since then he has changed his view in relation to the matter and the issue he now raises is his mental state at the time of the execution of the document.

12. Paragraph (d) is whether the proceedings were necessitated by the failure of a party to comply with previous orders.  That does not apply.

13. Paragraph (e) is whether any party to the proceedings has been wholly unsuccessful, that does apply, the husband has been wholly unsuccessful in relation to his application and as I said, it had no merit.

14. Paragraph (f) is in relation to settlement negotiations and I am not aware of any such negotiations.

15. Those are the matters that are relevant to the decision as to costs.  I think the husband should pay the wife's costs of the application basically because his application was wholly unsuccessful and particularly because the application had no merit and was not supported by any other proceedings that were seeking to disturb the orders that had been made.

16. In relation to the quantum, I have done a rough assessment on the basis of scale fees in the current scale in the Family Law Rules.  I have allowed for a solicitor attending on the client to obtain instructions and to peruse the application and support affidavit, preparing a response, preparing two affidavits and annexing photocopies, arranging service of the response and the affidavits, perusing the other documents involved and correspondence with the client, an appearance on 19 March involving an attendance at the Court until about noon and again today attending at Court to about noon.  Just on a rough assessment, it seems that that would come to about $2100.  If one adds GST, it comes to $2310.   So I am satisfied that the figure of $2000 that the solicitor the wife seeks is a reasonable amount.

I certify that the preceding fifteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:     25 June 2007