Kachmar & Madero
[2021] FedCFamC2F 616
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kachmar & Madero [2021] FedCFamC2F 616
File number(s): MLC 8783 of 2020 Judgment of: JUDGE HARLAND Date of judgment: 10 December 2021 Catchwords: FAMILY LAW – Injunctions – whether or not the husband should be ordered to pay funds moved overseas into a trust account – non-disclosure issues – husband sought an adjournment – husband on sufficient notice – inconsistencies in husband’s evidence. Legislation: Child Support (Assessment) Act 1989 (Cth), s.116(1)(b)
Family Law Act 1975 (Cth), ss.114(3), 117
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Part 6.1
Cases cited: Blue Seas Investments & Mitchell (1999) 25 Fam LR 65
In the Marriage ofBlack & Kellner (1992) 12 Fam LR 343
Mullen & De Bry (2007) 36 Fam LR 501
Tsiang & Wu and Ors [2018] FamCA 1057
Waugh & Waugh [2000] FamCA 1183
Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 10 December 2021 Place: Melbourne Counsel for the Applicant: Ms Dellidis Solicitor for the Applicant: Waterson Legal Counsel for the Respondent: Ms Matson Solicitor for the Respondent: KHQ Lawyers ORDERS
MLC 8783 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KACHMAR
Applicant
AND: MR MADERO
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
10 DECEMBER 2021
THE COURT ORDERS THAT:
1.The proceeding is adjourned to the Duty List on 14 February 2022 at 9:45AM.
2.All parties are to note and comply with Central Practice Direction – Family Law Case Management paragraph 5.1-5.20 at
3.The Mention on 2 March 2022 be vacated.
4.The husband forthwith do all acts and things and sign all documents necessary to cause the sum of $149,950.00 to be paid into the trust account of the wife’s instructing solicitors, Waterson Legal, with payment to be made by no later than 4PM AEST on 17 December 2021.
5.Each party, their servants and agents be restrained from dealing with the funds save in compliance with order 4 herein, without the expressed written agreement of the parties through their solicitors or order of this Court.
6.Waterson Legal is authorised to invest the funds in an interest bearing trust account on behalf of the parties, with the parties, their servants and agents be restrained from dealing with those funds pending further order.
7.The husband may file and serve a further affidavit addressing the transfers of funds, together with supporting documents and the husband may also address the issues raised of concern with respect to non-disclosure and omissions from his material by no later than 4PM on 21 January 2022.
8.The husband file and serve a financial statement by no later than 4PM on 21 January 2022.
9.The husband pay the wife’s costs of and in relation to the hearing dated 20 October 2021 on a party/party basis fixed in the sum of $2,903.75.
10.The wife’s costs of today be reserved.
11.The order for a family report be vacated.
AND IT IS ORDERED BY CONSENT THAT:
12.The subpoena objection issued 13 August 2021 be dismissed.
13.The documents received in response to the subpoena directed to the Department of Home Affairs issued 13 August 2021 be released for inspection by the parties and their legal representatives (and for photocopying by their legal representatives).
14.Leave be granted to the wife to file an amended application for departure from an administrative assessment of child support pursuant to s.116(1)(b) of the Child Support Assessment Act 1989.
15.Forthwith and within 7 days of these Orders the husband do all acts and things necessary and sign all document necessary to facilitate the provision of a true copy of the following documents in his possession, power or control, to the wife via her solicitors, Waterson Legal (the “Wife’s Solicitors”):
(a)The Australian income tax returns for the financial years ending 2015, 2016 and 2017 regarding the husband personally or any entity in which he has or had an interest;
(b)The Australian Notices of Assessment for the financial years ending 2015 and 2016 regarding the husband personally or any entity in which he has or had an interest;
(c)The contract of sale, settlement statement, equivalent of a Land Title Search, and all other documents regarding the purchase and registration of any property in the Country B registered in the name of the husband, his mother Ms C, or Ms D with monies emanating from any account in Australia in which the husband has or had an interest, and all documents regarding the source of such funds;
(d)All statements post separation from any financial institution regarding the transmission, destination and current location of the transactions described in paragraph 23 of the wife’s affidavit affirmed 2 December 2021; and
(e)All financial statements, income tax returns, BAS statements and ledgers of any trading entity operated by the husband or in which he has an interest, in Australia or in any country outside Australia post separation.
AND THE COURT NOTES THAT:
A.On the next occasion, one of the issues will be whether the proceedings should be transferred to Division 1 and that will depend on whether or not other parties will be joined to the proceedings.
B.The information contained in the documents referred to in this order is confidential and cannot be disclosed to any other person without an order of this Court and can only be used for the purposes of the litigation of this matter.
C.Penalties may apply pursuant to s.112AD and s.121 of the Family Law Act 1975 (Cth) if the information is disseminated other than as ordered in these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kachmar & Madero has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a matter concerning the wife's application in a proceeding filed on 2 December 2021 seeking orders for leave to bring an application pursuant to section 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth). After clarification with respect to this issue, that order was consented to by the husband. The husband has also consented to the orders sought at paragraph 5 of that application for further disclosure, subject to minor amendments at subparagraphs (d) and (e). The primary issue for determination today is the wife's application for what is headed in her application as “repatriation of funds”, and she also seeks costs with respect to the hearing on 20 October 2021, with costs having been reserved on the last occasion.
The husband opposes these orders sought by the wife and sought an adjournment on the basis that he had not had sufficient opportunity to respond to the application, and so made complaints about lack of procedural fairness. It was pointed out by the wife's counsel that those arguments need to be seen in the context of the history of this matter. Both counsel have filed case outlines and submissions. I refer to the applicant's case outline and submission document and, in particular, the chronology set out in the last part of the documents which refers to various transactions that the wife has discovered the husband had made at various times from 2016 to date, for which she has sought explanation.
Upon clarifying the orders sought, what the wife is seeking today with respect to repatriation of funds is essentially a mandatory injunction against the husband requiring him to pay the sums totalling $149,950 into the wife’s solicitor's trust account pending further order. Additionally, she seeks her solicitor being authorised to invest those funds for the parties pending further order so that both funds could earn interest.
The wife commenced these proceedings on 12 August 2020 seeking property orders. Upon filing an initiating application and a financial summary, the matter was referred to the Priority Property Pool's under $500,000 pilot. In the financial summary accompanying her application, she refers to the fact that the parties were in a 16-year relationship, separating in 2016, which is not in dispute. The parties are divorced. The parties have two children who are aged 10 and 8.
Under section 5, at question 19 of the financial summary, the wife refers to receiving various lump sums from her father totalling $121,800 between 2007 and 2016. Approximately $100,000 of those funds were put towards purchasing a block of land and the remaining balance are referred to as gifts.
At section 9 of the financial summary, there is reference to the joint property at E Street, Suburb F being sold by agreement. The wife states that subsequently, the husband withdrew the sale proceeds from the offset account and funds from the business account. The husband has not accounted for those funds totalling approximately $320,000.
At section 10 of the financial summary, the wife further refers to the fact that her case is that neither of them had any assets of significant value at the commencement of the relationship.
The wife completed a balance sheet which is found at section 11 of the financial summary. The balance sheet was completed as best as she knew at the time. I note, particularly because this is significant in this case, that the financial summary contains a statement of truth at the beginning where the parties must state:
I believe that the facts contained in the form are true. I understand that a judge or registrar of the Court and the other parties stated in this application will rely on the facts that I have provided in this application as being true.
This is significant with respect to the financial summary provided by the husband. Particularly insofar as what is a feature of this case, is the significance of what the husband does not say in various material that he has filed with the Court to date. I also note that the husband has been represented by the same firm of solicitors throughout the proceedings and the husband was personally served with the wife’s application. He signed an acknowledgment of service on 20 August 2020. The financial summary was filed by the husband on 20 October 2020, at which point he also joined parenting issues to the proceedings. In his financial summary, the husband takes issue with the wife's claims that she received funds from her father during the relationship and says that he is not aware of any funds being provided by him, and if funds were provided, that he did not receive any benefit of them.
Question 19 of the financial summary requires a party to provide information as to any lump sums received during the relationship or since it ended; the husband does not disclose any lump sums in his financial summary. At question 29 he does not disclose any future expected lump sums – and this question requires the parties to indicate if they or the other party expect to receive money, which can be from a variety of sources such as personal injuries claims, court case, deceased estates and other circumstances.
Section 9 of the financial summary addresses changes to property since separation. At this section, the husband says that the property at E(1) Street, Suburb F was sold by agreement and the balance of the net proceeds were transferred into the joint offset account secured against the mortgage at the property on E(2) Street, Suburb F. The husband says that the proceeds were used to repay home loans against both properties, the debt in relation to his business accumulated during the relationship, and the remainder of the funds were used for living expenses and other joint debt. He did not provide particulars of how the remaining funds were used in the financial summary or in his affidavit. In relation to property purchased since separation, he refers to purchasing a motor vehicle and motorcycle. In the balance sheet, there is reference to four bank accounts in his name, all with modest balances, and refers to having a loan in the sum of $37,430. He does not disclose having any other liabilities to any other person.
It is clear from the material of the parties that a significant issue of controversy has been with respect to whether or not the husband has complied with his duty and obligations to make full and frank disclosure. The wife issued subpoenas after she says she received inadequate disclosure. The husband resisted the request for disclosure and sought an order that the wife be restrained from bringing any further application for disclosure without leave of the Court, and also objected to the subpoenas on the basis of them being oppressive and too broad.
The husband agitates parenting issues. Initially he sought an equal time arrangement and, indeed, an order to be made for the parties to obtain a private family report from Dr F with respect to parenting issues in January 2022, noting that the mother had a two-day trial listed in May 2022. The husband's counsel conceded that the husband will need to provide detailed explanations as to transfers of funds and, indeed, it goes further than that, because there are inconsistencies in his material with respect to a variety of matters that raise real questions about the bona fides of his response to this application.
The husband says that he has not been accorded procedural fairness due to being overseas, which he says means he requires further time to be able to properly instruct his solicitors to provide responses to the wife's application in the proceeding filed on 2 December 2021. The application cannot be considered in isolation. It also needs to be looked at in the context of the previous court appearances in this matter and controversies between the parties with respect to disclosure and the subpoenas. The wife points out that despite being overseas, the husband has been able to instruct his solicitors to file responses, objections to subpoenas and affidavits and, indeed, one of the complaints made before me on the last occasion was the fact that the wife had filed a further affidavit a couple of days before the application and that he needed an opportunity to respond to that.
This is quite different, not the least of which because of exhibit 1 which is correspondence from the wife's lawyers to the husband's lawyers dated 3 November 2021. Significantly, the wife's lawyer provides details of queries about specific transactions relating to an ANZ account highlighting transactions that occurred over a period in April 2021 with respect to deposits into his account. One of the queries is the source of funds where these deposits are being made, particularly in circumstances where he deposes to being unemployed and relying on JobSeeker payments and then transferring the funds of $116,750 to an overseas account. The email goes on to refer to transactions in 2016 and requesting explanations for those. Exhibit 1 also includes further correspondence dated 18 November 2021 which repeats requests for copies of bank statements of the overseas accounts with respect to the transfer of $116,750 and also seeking bank statements of the husband's partner, to whom he transferred $33,200 in May 2021.
The husband was directed to file an affidavit on 24 November 2021 to clarify his intentions with respect to the parenting aspects of the proceedings given he is overseas. Particularly his intentions with respect to when he would be returning and what parenting orders he is seeking. The affidavit filed on 23 November 2021 addresses those matters however, he also complains about the wife reneging on what he says was an agreement with respect to parenting and property matters reached at mediation. These complaints had also been made in his previous affidavits. The wife spoke about the husband’s distress at her refusal to allow him to spend more time with the children, the impact the COVID-19 pandemic had on his employment and financial position, and his isolation in Australia, noting that the husband has always travelled frequently overseas, with family in Country G and having re-partnered to a woman who lives in the Country B.
The further information that he provides in his affidavit of 24 November 2021 with respect to his overseas travel and visa application is inconsistent with the letter he instructed his lawyers to write on 21 May 2021. I note as well, that the husband had previously objected to the subpoena that the wife had caused to be issued to the Department of Home Affairs (that issue now having been resolved). Significantly, in his affidavit he refers to being able to stay with his partner in the Country B free of charge, and also referred to his mother owning a vacant property in Amsterdam which was available to him. Further, he referred to his proposal to spend six months of the year in the Country B, which is enough to comply with the terms of the temporary resident visa he applied for, and six months in Melbourne so that he can spend time with the children.
In his affidavit he referred to being scheduled to travel to Australia on 2 December 2021, though he stated he had been informed that the flight may be cancelled or delayed. He does not provide any annexures to that affidavit documenting the purchased ticket or correspondence from the airline. Whilst I accept that the orders made on 20 October 2021, providing for the filing of the affidavit referred to parenting matters, it is of some significance that the husband sought an adjournment and complained about insufficient notice given the correspondence that I have referred to in exhibit 1. True it is that there was some lack of clarity in the orders sought by the applicant as to the scope of the injunction that she is seeking, though that was made clear in the case outline and confirmed at the hearing today. Again, that has to be seen in the context of him being on notice that two of the transactions the wife was concerned about was the $116,750 transfer and the $33,200 transfer to his partner.
The husband does not refer to either transaction or acknowledge the requests for disclosure relating to those in his affidavit filed on 24 November 2021. He does not tender any correspondence replying to the wife's queries. The husband also gives no indication that he has attempted to provide any information with respect to those matters that he was on notice about, and simply instructs his counsel today that he transferred the $33,200 to his partner overseas for living expenses and that those funds have been expended. I note here, as the wife's counsel did, these are in circumstances where he deposes to living rent-free and his mother having vacant accommodation in the Country B and also the circumstances at the same time he is not paying child support for his two children who remain in Australia.
The husband instructs counsel to say that with respect to the $116,750, his mother either loaned or gifted him those funds during the relationship. I note this is at odds with his financial summary and his statement of truth. He says that his mother had given him or lent him money to repay his car loan. In his financial summary, I note the car loan was some $37,000 and he says he repaid her when he sold the car and asserts he cannot gain that money back from her. The husband urges the Court not to make an injunction against him saying that he would not be able to comply with such an order, due to not having these funds and they being in the hands of third parties. He says there is no evidence that he can comply with such an order.
The position of the husband is somewhat extraordinary in light of his own failure to comply with fundamental obligations of this Court. He is, in effect, inviting the Court to condone non-disclosure. In this regard, I refer to Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) with respect to financial disclosure. The obligations that each party has with respect to financial disclosure is a positive one and an ongoing one. It is not up to the other party to have to guess as to what documents to ask for. Each party has an ongoing and positive obligation. The husband will need to explain why there are, as it appears in his documents, some material omissions.
The husband’s application is at an interlocutory stage and is not at a stage where I can make findings of fact with respect to the issues in dispute. I anticipate one of the issues for the trial will be this issue of non-disclosure and, no doubt, if that matter is not satisfactorily resolved, the wife may make submissions at trial consistent with authorities such as In the Marriage ofBlack & Kellner (1992) 12 Fam LR 343 (“Black & Kellner”) with respect to the steps the Court could take if the Court is satisfied that there has been deliberate non-disclosure.
In Black & Kellner the Full Court held that full and frank disclosure of material facts is a fundamental requirement in financial matters, and that a person who fails to make full and substantive disclosure of their financial affairs cannot then rely on an absence of evidence to prevent the making of orders. Whilst that decision is talking about final orders after the determination of matters at a trial, it has some relevance to the considerations that the Court must make here with respect to the injunction that the applicant wife seeks, and it is clear that the order sought is to have the effect of a mandatory injunction which the Court has the power to make under section 114(3) of the Family Law Act 1975 (Cth) (“Family Law Act”), and there are several authorities addressing the Court's discretion with respect to injunctions and the matters to consider, including Tsiang & Wu and Ors [2018] FamCA 1057, Waugh & Waugh [2000] FamCA 1183, Mullen & De Bry (2007) 36 Fam LR 501, Blue Seas Investments & Mitchell (1999) 25 Fam LR 65 and many others.
I also refer to the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Central Practice Direction – Family Law Case Management, noting that this applies to all matters before the Court, including matters that were filed prior to 1 September 2021.
In particular, I refer to the purposes of the Central Practice Direction – Family Law Case Management which has outlined the core principles applicable to family law proceedings and that:
reduces unnecessary cost and delay in family litigation and facilitates proceedings being conducted with the least possible acrimony in order to minimise harm to children and families;
ensures the safety of families and children; and
achieves the overarching purpose of the family law practice and procedure provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
I specifically refer to 1.3 and 1.4 of the Central Practice Direction – Family Law Case Management, and I note that at 1.5, attention is drawn the consequences should parties or practitioners fail to comply with the requirements:
Any failure to comply with these requirements may attract costs orders against parties and/or practitioners and other consequences including, in appropriate cases, the drawing of adverse inferences, the making of a summary decree pursuant to section 45A of the Family Law Act 1975 (Cth) (Family Law Act), or orders providing that a matter be heard on an undefended basis.
In determining whether or not to grant an injunction, the onus is on the wife to show that there is a serious issue to be tried and must show that the balance of convenience favours making an order. The wife does not need to show that the husband has a positive intention of defeating her claim, but must show a possibility of an event occurring. The Court is not conducting the trial at this stage, but assessing whether or not there is a risk of dissipation of property and whether that risk is real and not remote. Neither of the parties particularise the financial orders that they seek on a final basis.
With respect to the wife, given the issues that she raises relating to the transfers that have yet to be explained, there is a real question as to what the size of the asset pool actually is, and in this regard, her counsel pointed to the fact that the transfers in 2016 total approximately $500,000, and there are other transfers as well as the specific sums that are sought to be paid into the solicitor's account pending further order. That is suggestive of a property pool which could be well in excess of the $500,000, which is more than what the wife initially understood the asset pool to include. There is property in Australia, being the block of land worth approximately $600,000. The wife made submissions that she may seek to keep that property without making any adjusting payment to the husband, given the circumstances, and the wife also submits that the funds that were transferred by the husband without her knowledge and without explanation and should be seen as matrimonial property in the absence of evidence to the contrary.
The wife further submits that if the order is not made, her property claim may be defeated because, looking at the rough figures, assuming that the asset pool is a little over $1 million, if she was to retain the land in Australia, that would be an adjustment of slightly less than 50 per cent, noting, of course, at this stage the wife does not need to establish that she would be successful in making a claim for greater than 50 per cent. It is dealing with whether or not the risks that she is concerned with are real or theoretical. Further noting that in this case, the wife has said from the outset that she received funds from her father for the benefit of the relationship, the relationship lasted 16 years, the husband had control of the finances and there are transactions that he has made, both historically and more recently, that he has not explained. The wife will now seek at trial an order for lump sum child support in circumstances where the husband is living overseas and it is difficult to know when and if he will return, particularly as well, where there is no current method for her to seek payment of child support, and she has 100 per cent care of the children. Based on the circumstances, the wife asserts she may seek a lump sum payment that could be approximately $96,000 and that certainly may change as further evidence comes to light. The relevance is an issue of risk and the seriousness of the issue should an injunction not be made. I am comfortably satisfied that there is a serious issue to be tried in this case, being what property adjustment would be just and equitable between these parties. The wife has established, based on the material and, most significantly, what the husband has sworn to and what the husband is silent about, that there is a real and not theoretical risk of matrimonial assets being dissipated if the injunction is not granted. The husband cannot rely on unsworn submissions in circumstances where I am satisfied that he was on sufficient notice as to the core concerns with respect to the transfers of funds and that he, in the circumstances, particularly given the history as outlined in these reasons, had sufficient notice and has not provided, as I indicated before, any evidence of correspondence attempting to address both concerned. Rather, his position has been and remains that the matter should be adjourned and that it would be procedurally unfair to him to proceed.
Procedural fairness is about parties having the opportunity to be heard. Considering the context of the circumstances in this case, and further noting the deficiencies and inconsistencies in the husband's material and absence thereof, it would be an extraordinary thing if the Court was to accede to his request to adjourn the proceedings and not make any orders. That is in actuality, tantamount to asking the Court to condone obstructive conduct and non-disclosure. He does not place any evidence before me of any attempts to address these deficiencies and inconsistencies and, instead, seeks the Court to accept the submissions from the bar table that he does not have these funds and that these funds are with third parties.
Given references in the affidavit material with respect to the husband’s mother and partner, it may become necessary for both to be joined in the proceedings. An order binding third parties cannot be made without according them procedural fairness, noting in this case those parties are overseas, but that is not the effect of the order that the wife seeks. The effect the order seeks is to preserve, as far as possible pending further order, the funds that, based on the evidence before the Court, appears to be matrimonial funds.
I will vacate the order for the family report which was due to take place in January 2022. It is clear now that it certainly could not occur in January 2022. There is an issue about payment for the private family report, and I note the husband maintains that the parties should pay equally for the report being approximately $11,000 in total.
There are issues regarding the prospects of success with respect to the husband’s parenting claim. It is of some concern that in his Amended Response to Initiating Application filed on 24 November 2021, he seeks to restrain the mother from moving more than 20 kilometres from the children’s school, for example, in circumstances where he, on his proposal, proposes to be overseas for six months of the year.
There are real questions as to whether or not, when and if the husband will be able to return, given he instructs that he is not vaccinated. This will result in issues regarding how the parenting application should proceed. The husband will have a further opportunity to address those issues.
Currently the matter is listed for a two-day trial before me in May 2022. I have concerns about this being contained to two-days, given the nature of the issues raised thus far.
I flagged with the parties during the course of argument that I am of the view this is a matter that should be transferred to Division 1, given the international aspects of this matter. I am urged not to make that order today, nor at this stage in the proceedings, however I put the parties on notice that on the next occasion, one of the issues will be whether or not it should be transferred to Division 1, and that may well depend on matters such as whether or not it becomes necessary to join other parties.
The husband has been on notice of the issues raised and as I indicated previously, noting that it is close to Christmas, it is important that the affidavit is provided well before the adjourned date in February 2022 to allow both parties to properly prepare and know how to best advance this matter, bearing in mind all the principles I referred to earlier set out in the Central Practice Direction – Family Law Case Management and in the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The other outstanding issue is with respect to the wife’s application for costs regarding the subpoena objection hearing on20 October 2021. The husband seeks that the costs issue be adjourned for determination at the final hearing, when various issues such as disclosure and the reasonableness or otherwise of each parties’ conduct can be examined if relevant to the issues in dispute at that time, and, superficially, that has some attraction. However, I note what the wife is seeking is costs limited to the argument with respect to the subpoena objections agitated on 20 October 2021 as well as earlier and that the costs she seeks do not include costs with respect to the subpoena issued to the Department of Home Affairs which was resolved by consent on the basis of the parties paying their own costs with respect to that issue.
The costs that the wife seeks is, on a party/party basis, and in the alternative on an indemnity basis. The husband opposes the costs and says that the wife was not entirely successful in her argument on 20 October 2021 because one of the issues that she sought to agitate was that the disclosure documents she sought should date back to 2015, and not 2016 as have been previously determined by the registrar.
I accept and I have recollection of that dispute before me on that occasion, however it strikes me as somewhat disingenuous to raise that as a serious concern with respect to the costs sought, given the fact that it is apparent from the evidence before the Court that significant transfers of funds which the husband reasonably would have been on notice of, relevant to this dispute, may not have been discovered if not for the wife’s persistence in pursuing the subpoenas and the disclosure orders. The sum she seeks, I accept, is a fairly modest sum in the circumstances and is particularly so looking at the nature of the issues in dispute. When considering whether or not to make a costs order under section 117 of the Family Law Act 1975, one of the issues of particular relevance is the conduct of the parties, and that is an issue that I have addressed in these reasons with respect to the husband.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Dated: 10 December 2021
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