K & K
[2002] FMCAfam 136
•10 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K & K | [2002] FMCAfam 136 |
| FAMILY LAW — Property settlement — failure of respondent to appear at trial — modest asset pool. |
| Applicant: | C M K |
| Respondent: | W K |
| File No: | ZM 8511 of 2001 |
| Delivered on: | 10 May 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 10 May 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Moisidis |
| Solicitors for the Applicant: | Joannidis & Associates |
ORDERS
As and by way of property settlement:
(a)The husband do pay to the wife the sum of $21,250 on or before 30 June 2002.
(b)The husband do forthwith transfer and assign to the wife all his share and interest (if any), in the following:
(i)the wife's BMW motor vehicle;
(ii)the furniture, chattels and effects presently in the wife's possession;
(iii)all moneys standing to the credit of the wife in any account in any bank, building society or other financial institution; and
(iv)all moneys presently held by the wife's solicitors on behalf of either the husband or the wife sourced in the sale of the former matrimonial home, together with all interest thereupon.
(c)Upon receipt by the wife of the amount of $21,250 referred to in paragraph (a) above, and the moneys formerly held by the wife's solicitors referred to in paragraph (b)(iv) above, the wife do forthwith transfer and assign to the husband all her share and interest (if any), to the following:
(i)the husband's Mazda motor vehicle;
(ii)the furniture, chattels and effects presently in the husband's possession;
(iii)all moneys standing to the credit of the husband in any account, in any bank, building society or other financial institution; and
(iv)the husband's shares in M E Pty Ltd.
The wife's application for spousal maintenance contained in her application filed 16 October 2001 be adjourned generally.
Paragraphs 6 and 7 of the orders made in this Court on 23 October 2001 do continue in full force and effect, except to the extent necessary to enable the husband to fully comply with the provisions of the within orders — and upon the husband complying with the within orders the said injunctions be discharged.
The husband do pay the wife's costs of and incidental to these proceedings, such costs to be taxed if not agreed.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
The proceedings be removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 8511of 2001
| C M K |
Applicant
And
| W K |
Respondent
REASONS FOR JUDGMENT
B efore the Court is the wife's application for property settlement. The application was filed in this Court on 16 October 2001.
The wife relied upon the application that she has filed and to which reference has been made. She also relied upon the affidavit sworn by her on 15 October 2001 and the affidavit sworn by her on 9 May 2002. As well, she relied upon her form 17 financial statement sworn on
15 October 2001. The wife did not file a case outline. The orders sought by the wife in relation to property settlement are those set out in paragraphs 1 to 6 of the final orders sought in the application filed 16 October 2001.
During the course of submissions today I commented to counsel for the wife that there was an inherent discrepancy between the terms of paragraphs 4 and 5 of the orders sought in that application. At the end of the day, however, it has been revealed during the course of these reasons that the discrepancy is of little importance. The husband played no part in these proceedings. He attended at Court on 23 October 2001 when certain procedural orders were made and injunctions were granted. At a later stage, the parties were to attend a conciliation conference. It would appear from correspondence on the Court file that neither party attended the adjourned conciliation conference which was held on 20 February 2002. As a result of that non-appearance, the matter was listed for further directions in the Federal Magistrates Court on 12 March 2002.
A letter was sent from the Federal Magistrates Court to both parties advising them of the need to be present on that day either by themselves or by legal representatives. The wife appeared on 12 March 2002 by her legal representative. The husband did not appear. As a result, an order was made to the effect that the application be listed for final hearing today as an undefended application. Both parties were granted liberty to apply.
In the orders of 23 October 2001 the husband was required to file a response and form 17 financial statement, together with any affidavit material upon which he proposed to rely, by 4.00 p.m. on 31 December 2001. The husband did not file any documents in compliance with that order. The orders made in October 2001 provided for the sale of the former matrimonial home and the discharge of certain liabilities then in existence. Paragraph 4(f) of the orders made in October 2001 stated that 50 per cent of the net proceeds of sale of the property were to be paid to the wife by way of partial property settlement and interim spousal maintenance.
Paragraph 4(g) of the orders provided for the balance to be held by the wife's solicitors in the name of the wife, and invested in an interest‑bearing account. These funds were not to be drawn upon without the written consent of both parties or an order of this Court. The former matrimonial home has been sold and full details regarding the sale are contained in the affidavit of the wife sworn on 10 May 2002. It is apparent that the net proceeds of sale of the former matrimonial home amounted to $90,161.57. In paragraph 14 of her affidavit the wife deposes to the fact that 50 per cent of those funds, namely $45,080.78, are held for her by her solicitors by way of partial property settlement and interim spousal maintenance. The balance of $45,080.78 is held by her solicitor in trust pending the further order of this Court.
The husband and the wife met in 1984. They cohabitated from October 1984 and were married on 26 January 1986. They separated on 27 September 2001. There were no children of this marriage. It was the second marriage of each of the parties. The wife has deposed to the fact that she has three independent adult children and the husband has one independent adult child. The wife was born in 1948. The husband was born in 1949. The financial history of the marriage is described in the wife's affidavits relied upon at trial. I do not propose to dwell upon that history in these reasons. Suffice it to say that at the time of commencement of cohabitation, although each of the parties owned very modest assets, neither had assets of significance. Both were employed at the time. The history of the acquisition of the former matrimonial home is set out in the wife's most recent affidavit commencing at paragraph 7.
In approximately March 1988, the wife suffered an injury at work. She describes the injury and its effects in paragraph 15 and the following paragraphs of her affidavit sworn in October 2001. As a result of the injuries that she suffered, she commenced receiving WorkCare or WorkCover payments. She later received certain lump sum payments which are described in paragraphs 17, 18, 19 and 20 of her affidavit sworn in October 2001. Attached to that affidavit is a schedule reflecting the moneys paid by the insurer on behalf of the wife during those early years of the marriage. The schedule reflects that between May 1988 and May 1992 the wife received weekly compensation payments totalling some $86,500.
In addition, she received certain lump sum payments. She received $19,760 in January 1991, just under $22,000 in May 1992 and a further payment of $27,000 in May 1992. The evidence before me, as contained in the affidavits of the wife, is to the effect that all the sums were utilised for the benefit of the family comprising the parties and, in addition, two of the wife's children who resided with them during the period of their relationship.
From approximately November 1986 the husband was employed as an accountant for O P Pty Ltd. Shortly before the date of separation, it became apparent to the wife that the husband was encountering certain problems at his place of employment. These problems are described by the wife in her first and second affidavit. It would appear that the husband had a serious gambling problem and it may well have been the case that the husband acted dishonestly in his employment. I make no finding in that regard, as the evidence does not permit me to make such a finding. Suffice it to say that on 2 October 2001 the husband's employment with O P Pty Ltd was terminated without prior notice to him.
The wife asserts in her affidavit from October 2001 that the termination of the husband's employment by his employer was a direct result of serious misconduct.
In the affidavit material before me the wife sets out financial aspects of the husband's behaviour during the last few years of the marriage. The effect of that behaviour is that the husband used assets for his own purposes that would otherwise have been available to these parties. It seems clear from the affidavit material that he did so without the consent or even the knowledge of the wife. The impact of the husband's actions was significant in the context of this relationship, and in the context of the financial position of the parties.
Having read the affidavits of the wife in this matter, I am satisfied that the financial losses incurred by the husband in the manner described in the affidavits involved recklessness, negligence and blameworthy conduct. As such, it is my view that those losses should not be disregarded. Put another way, economic losses of this nature should not have to be shared between the parties in the circumstances of this case. I refer in this regard to the decision in Kowaliw (1981) FLC 91-092, and to the cases which have discussed that case including, in particular, Browne and Green (1999) FamCA 1483.
In her affidavits the wife has deposed to her significant medical problems and to her medical history. She relied upon, as part of her case, the affidavit of Dr S G sworn on 22 October 2001. Notwithstanding that this affidavit was not filed until 10 May 2002, I have taken it into account and I have read carefully the medical history set out in the report attached to the affidavit. I have no evidence of the husband's state of health, but I am aware on the basis of the information before me, and in particular the medical evidence, that the wife has no real earning capacity at the present time.
The general approach that should be adopted by the Court in relation to a property settlement application has been described in many cases. See, for example, Pastrikos (1980) FLC 91-987, Lee Steere (1985) FLC 91-626, Ferraro (1993) FLC 92-335, Clauson (1995) FLC 92-595 and Whitely (1996) FLC 92-684. The Court must first identify the assets of the parties. It must then attribute a value to each of those assets, usually as at the date of the hearing. Thereafter, it must assess the extent of each parties' contributions under the various subheadings described in section 79(4) of the Family Law Act. Finally, the Court must consider the financial resources, means and needs of the parties, and the other matters set out in section 75(2) so far as they are relevant.
An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment take place. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. In relation to the contribution of the parties under section 79(4) generally, it has been held that a global approach will usually be more convenient than what has been described as an asset by asset approach, although the application of an asset by asset approach does not of itself amount to an error of law. In that regard see Norbis (1986) FLC 91-712.
Section 75(2) is concerned with the process of arriving at a just and equitable result. It follows that there may be circumstances in which the justice and equity of the case, and the specific provisions of section 75(2), support an adjustment in a party's favour for matters which cannot comfortably be described as being of financial or economic significance. (See McMahon (1995) FLC 92 606)
Under section 79(2), the Court is required to be satisfied that the order that it proposes to make is just and equitable, and not simply that the underlying percentage division of the net value of the parties' assets is appropriate. In other words, in the consideration of whether the overall result of property settlement proceedings is just and equitable, it is the justice and equity of the actual orders, and not just the percentage distribution, which must be considered. In that regard, see Russell (1999) FLC 92-877.
During the course of the proceedings before me today, the identity and value of each item of property was dealt with. I find on the basis of the evidence before me that the parties' assets and liabilities at trial are as follows:
a) The net proceeds of sale of the former matrimonial home currently held in trust by the wife's solicitors
$90,200
b) The husband's Mazda motor vehicle $5,000 c) The wife's furniture $12,000 d) The wife's BMW motor vehicle $5,000 e) The husband's Maryborough shares $7,500 f) The husband's former superannuation entitlements held by AXA Australia
$85,500
$205,500
The total of those assets is $205,500.
As a result of the orders that were made in these proceedings and which required the sale of the former matrimonial home and the discharge of various liabilities, the position is that there appears to be no liabilities of these parties as at the date of trial.
I pause here to comment that I have adopted the wife's estimate of the value of the husband's Mazda motor vehicle because no other satisfactory evidence was placed before me of the value of that vehicle. I have adopted the value of $12,000 for the wife's furniture and effects because that is the figure estimated by the wife in her form 17 filed at the commencement of the proceedings.
The husband could have taken objection to the wife's estimate of value had he been minded to do so. The reality is that the husband took no part in these proceedings, and hence I am prepared to adopt the wife's estimate of the value of the furniture in her possession. I am aware that in the wife's later affidavit she has suggested that the actual value of the furniture in her possession is less than $12,000, but having regard to the fact that the husband has not been served with the wife's most recent affidavit, it seems to me to be inappropriate to adopt a figure that is different to the figure that she originally put forward as part of her case.
I have adopted the figure of $7,500.00 for the shares in the husband's possession because it is clear that the wife sold her shares for that value. The wife's shareholding and the husband's shareholding were identical.
Insofar as the husband's superannuation is concerned, for reasons that I gave during the course of the proceedings today, I am prepared to accept into evidence the annual statement from A A being annexure CMA to the wife's affidavit sworn 10 May 2002. That statement reveals that if the husband were to be retrenched as at 28 February 2002, then the total amount to which he would be entitled is $85,498.76.
Had he resigned as at February 2002, he would have been obliged to preserve the moneys to which he was entitled — which would have been a very similar amount to the figure that I have just mentioned. There is no reference to the husband having to preserve any amount in the event of his retrenchment. No evidence was placed before me by the husband or by any other person regarding the tax that the husband may have to pay should he receive the amount of approximately $85,500 from A A to which would be entitled to upon retrenchment. In those circumstances, I am not prepared to speculate as to whether or not a tax liability would exist (and, if so, the quantum of that liability).
I have concluded, as indicated earlier in these reasons, that it is appropriate to regard the $85,500 to which the husband is entitled upon retrenchment as an asset presently available to him. The evidence before me suggests that the husband has indeed been retrenched or otherwise dismissed from his employment. Without any evidence from him I have little alternative, it seems to me, but to conclude that the husband is indeed entitled to these funds as at the present time. That being the case, the amount of $85,500 should be treated as an asset and not a financial resource.
Neither of the parties has superannuation entitlements other than those of the husband to which I have already referred.
During the course of submissions today the factors affecting the Court's conclusion as to the contributions of the parties were discussed at some length. Insofar as the parties' contributions under section 79(4)(a) are concerned, it is clear that the husband has made the greater financial contribution to the acquisition, conservation and improvement of the parties' assets throughout the period of the relationship (when taking into account the moneys received by the wife as a result of the injury that she suffered in 1988), save and except for the impact of his behaviour during the last few years of the marriage. If what I have described during the course of the discussion today as the Kowaliw factors are ignored, then it seems clear that the husband's financial contributions outweigh those of the wife.
I am cognisant of the fact that the wife worked in paid employment during the early years of the marriage and that she received workers compensation payments for a period of approximately four years from May 1988. I am also cognisant of the fact that the wife received the lump sum payments referred to in her affidavit totalling just under $69,000. At the end of the day, however, the reality is that the husband's financial contributions, leaving aside the Kowaliw factors, were greater than those of the wife. I have no evidence that would lead me to conclude that, at least during the greater part of the marriage, the husband's funds were utilised for purposes other than those associated with the benefit of the family and for the acquisition, conservation and improvement of the assets now in existence.
Insofar as the parties' contributions under section 79(4)(b) are concerned, there was precious little evidence regarding this subject. It would appear that the parties non-financial contributions to the acquisition, conservation and improvement of their assets were approximately equal. Suffice it to say that I have no evidence which would suggest to me that either party made a greater contribution than the other under this general heading.
Insofar as the parties' contributions under section 79(4)(c) are concerned, it is clear from the material now before me that the wife's contribution outweighed that of the husband.
In paragraph 35 of her most recent affidavit the wife said that throughout the marriage she was the homemaker and parent of both Nathan and Kane. She cooked and washed for the family, including the husband. She did the shopping and she paid the bills. She also assisted with the maintenance and upkeep of house, including the garden and minor renovations. The reference to N and K is a reference to the wife's children of her previous marriage. N was born in 1972 and K was born in 1976. The wife has stated that these boys resided with the husband and herself until 1989 in the case of Na and 1999 in the case of K.
She deposes to the fact that they were both regarded as children of the marriage and that they had a good relationship with the husband. The reality is, however, that they were not the husband's children and I refer in this regard to the decision of the Full Court in the matter of Robb (1995) FLC 92-555. I take into account the fact that the husband treated these children as if they were his own and that he had a good relationship with them. I take into account as well that the contributions that he made generally under section 75(4)(c) and also under the other provisions of section 79(4)(a) and (b) benefited the wife's children. Overall, however, I conclude that the wife's contributions under section 79(4)(c) outweighed the husband's contributions under that sub-section.
Had it not been for what I have termed the Kowaliw factors, I would have concluded that the husband's contributions, overall, outweigh those of the wife — not by a great deal, but to some extent. A fair allowance — ignoring what I have described as the Kowaliw factors — would be something in the order of 52.5 per cent to the husband and 47.5 per cent to the wife. When regard is had, however, to the husband's behaviour during the last few years of the marriage, and to its financial impact on the family (which behaviour I have referred to as the Kowaliw factors), it seems to me that the balance changes radically.
In her affidavit sworn on 10 May 2002, the wife sets out the financial impact of the husband's actions. I refer, in particular, to paragraph 34 of that affidavit. I am conscious, however, that one cannot approach a matter such as this by means of a formula, or on a strict mathematical basis. Doing the best that I can with the evidence before me, it seems to me that — taking into account the Kowaliw factors in this case — the contributions made by the wife, in all their various guises, would amount to approximately 60 per cent of the pool of assets now available for distribution between them.
So far in considering the question of property settlement, I have addressed the question of contribution only. Quite clearly, the Court is entitled to make an adjustment to a party's property settlement entitlement on the basis, inter alia, of both parties' respective means and needs. The Family Court has been critical "shorthand terms" being used to describe the last step in the property settlement exercise — preferring to refer to it simply as “the section 75(2) factors”. (See Clauson (1995) FLC 92-595) In essence, section 75(2) is concerned with the process of arriving at a just and equitable result.
During the course of the hearing today counsel for the wife reviewed the factors under section 75(2) which may be considered relevant in context of this case. The age and state of health of the parties is a matter to which reference has already been made in these reasons. I have no evidence as to the husband's state of health. The wife's state of health is poor and is described in detail in the material before me. I have already recorded the dates of birth of the parties. The income, property and financial resources of the parties and their physical and mental capacity for each of them for appropriate gainful employment is a further factor that the Court must take into account.
It is clear in the context of these proceedings that the asset pool is not large. I have no evidence as to the husband's present income, nor do I have evidence regarding his physical or mental capacity for appropriate gainful employment. I recognise, however, that the husband was previously employed as an accountant in a position of trust. If he was in fact dismissed by his employer for dishonesty or the like, then it seems to me that a fair inference is to the effect that he is likely to have considerable difficulty obtaining a similar position in the future. In my view, there is considerable doubt surrounding the husband's ability to obtain and maintain appropriate gainful employment in the future. That is not to say that the husband is entirely unemployable. But his income is likely to be relatively modest in the years to come.
As far as the wife is concerned, it is clear that she has no real capacity for appropriate gainful employment either now or at any time in the foreseeable future.
The parties’ property and financial resources have already been discussed by me in these reasons. Neither party has the care or control of a child who has not attained the age of 18 years, and of course there were no children of this marriage. I have been urged to take into account the commitments of each of the parties that are necessary to enable them to support themselves. In the context of this case, it is a difficult matter to take such a factor into account. I have read the wife's financial statement and I accept that she will have difficulty supporting herself.
The wife wishes to acquire a home of her own. Clearly, irrespective of the result of the proceedings, she is likely to be able to acquire little more than a very modest dwelling for herself.
Her requirements in relation to maintaining herself are modest. They are set out in part F of her financial statement. Neither party is responsible for supporting any other person. The wife has an eligibility for a benefit, which benefit is described in the material before me.
I have already referred to the husband's superannuation entitlements and have treated them for the reasons already referred to in these reasons as an asset now available to the husband and therefore to be treated as part of the asset pool.
I am aware that each party is entitled to a standard of living that is reasonable in the circumstances. Given the modest size of the asset pool, however, it is likely to be very difficult to satisfy both parties where this factor is concerned. The wife has made a claim for spousal maintenance. That claim has not been particularised, and it is clear from the application that the wife seeks lump sum spousal maintenance and not periodic spousal maintenance. At the end of the day, it will fall to me to determine whether a spousal maintenance order is appropriate when regard is had to the property settlement order that I may be minded to make. There is no evidence before me that either party is cohabiting with any other person. Hence, the financial circumstances relating to such a cohabitation are irrelevant.
Section 75(2)(o) requires me to take into account any fact or circumstance which, in my opinion, the justice of the case requires to be taken into account. I am aware that this factor would enable me to take into account the husband's irresponsible financial behaviour over the last few years of the marriage. As already indicated in these reasons however, I have elected to deal with that matter under the general heading of contribution. It seems to me, therefore, that there are no other factors which the Court should take into account having regard to the justice of the case.
On the basis of the evidence before me, and having regard to the fact that the purpose of the section 75(2) adjustment is to assist the Court with the process of arriving at a just and equitable result, I conclude that an adjustment should be made to the wife's entitlement on the basis of contribution alone by increasing that entitlement from 60 per cent to 62.5 per cent. I have concluded that the section 75(2) factors, when looked at globally, favour the wife — but only to a modest extent. On the basis of the figures set out earlier in these reasons, this means that the wife should receive by way of property settlement assets to the total value of $128,437.50 (being 62.5 per cent of $205,500).
The wife already has in her possession, or otherwise retains, her furniture valued at $12,000 and her BMW motor vehicle valued at $5000. In other words, she retains assets with a total value of $17,000. It follows that if the wife is entitled to assets to the total value of $128,437.50, then in order to receive that amount she should also be awarded the whole of the net proceeds of sale of the former matrimonial home presently held in trust by her solicitors, together with a further amount of $21,237.50, which I shall round up to $21,250.
One of the most difficult aspects of the present case is the relatively modest size of the asset pool. The Full Court has cautioned against assessing section 75(2) factors in percentage terms without considering the real impact of any proposed adjustment. In other words, the real impact in money terms is the critical issue. (See Clauson (1995) FLC 92-595) In the present case, the section 75(2) adjustment is a little over $5000, equating to 2.5 per cent of the asset pool. The differential between what the husband will receive and what the wife will receive, when regard is had to the section 75(2) adjustment, equates to approximately $10,300. In my view, that adjustment is proper in the circumstances of this case.
I turn now to consider the issue of spousal maintenance. I do not propose to dwell on this subject in these reasons. As I pointed out to counsel during the course of the hearing, the difficulty at the present time is the absence of information regarding the husband's true financial position and his earning capacity. In the broadest possible sense, spousal maintenance requires a balance between — in this case — the wife's reasonable needs and the husband's ability to pay. I am conscious of cases such as Bevan (1995) FLC 92-600 and Vautin (1998) FLC 92-827 which set out how the Court should approach a spousal maintenance claim, and in particular a lump sum spousal maintenance claim.
Having regard to the capital disparity between these parties that will occur as a result of the orders that I propose to make by way of property settlement, it seems to me that, at the present time, even if the wife has an entitlement to spousal maintenance (and I conclude that she may well have such an entitlement), there is no clear ability on the part of the husband to meet any claim that the wife may have. Having regard to the fact the parties are not yet divorced, I am of the view that the most appropriate course of action is to adjourn the wife's claim for spousal maintenance generally. In the event of further evidence becoming available regarding the husband's capital position or earning capacity, then the wife can relist her claim if her advisers consider it appropriate for her to do so.
Before me is an application for costs on behalf of the wife. The question of costs in Family Law proceedings is dealt with in section 117 of the Family Law Act. The trial judge, in this case, a federal magistrate, has a broad discretion on costs matters. Ordinarily the Full Court will not intervene unless the order is plainly unreasonable. Indeed, it's been held that the Court has an unlimited jurisdiction in relation to costs although any order must be just (see Kelly v Kelly
No. 2(1981), Hogan (1986), I v I No. 2 (1996). It is not the law that a costs order can only be made in a clear case. Thus, although a finding of justifying circumstances is an essential preliminary to the making of a costs order, there is no additional or special onus on an applicant for an order for costs. Although the general rule is that each party should bear his or her own costs, that general rule is expressed to be subject to section 117(2) and must yield whenever the trial judge or in this federal magistrate finds that there are circumstances justifying the making of a costs order in that regard (see Penfold (1980).
Section 117(2) obliges to have consideration to the provisions of section 117(2A) in determining whether there are circumstances that justify the Court in making an order for costs. In considering what order should be made I must have regard to firstly the financial circumstances of each of the parties to the proceedings. Those circumstances have been dealt with in the reasons that I have just delivered. Secondly, whether any party to the proceedings is in receipt of assistance by way of legal aid. I understand that the wife is not in assistance by way of legal aid. (c) requires the Court to have regard to the conduct of the parties to the proceedings in relation to those proceedings; in other words, in relation, principally, to procedural matters. Here the husband failed to comply with the order of the Court requiring him to file his documents by a certain time and as a result the wife was given leave to proceed on an undefended basis. That made it more difficult for the wife in some ways because she was unable to obtain concessions or assistance from the husband as can often be obtained in cases of this nature. In my view the conduct of the husband in failing to comply with procedural orders and in effect washing his hands of these proceedings is an important factor for me to consider.
Section 117(2A)(d) requires me to consider whether the proceedings were necessitated by the failure of a party to the proceedings to comply with the previous orders of the Court. That does not apply in the present circumstances. (e) requires me to consider whether any party to the proceedings has been wholly unsuccessful in the proceedings. Having regard to the fact that the husband never deigned to specify the orders that he sought, and that he played no effective part in the proceedings, it seems to me to be reasonable to conclude that he has been wholly unsuccessful in them. In my view, the husband has indeed been wholly unsuccessful in the proceedings. (f) requires me to consider whether offers have been made. I have not been advised of any offers. Having regard to the husband's approach to the proceedings it would appear that no offers were made. There are no other factors that I consider relevant in the context of these proceedings.
Suffice it to say that I am of the view that there are circumstances which warrant the making of a costs order and, accordingly, I make an order that the husband pay the wife's costs of and incidental to these proceedings to be taxed if not agreed. There will be the usual certification for counsel.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Walters FM
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