KRUSAROSKI & KRUSAROSKI

[2013] FamCA 388

FAMILY COURT OF AUSTRALIA

KRUSAROSKI & KRUSAROSKI [2013] FamCA 388

FAMILY LAW ─ APPLICATION FOR SECURITY ─ Where the wife sought an order that the court set aside a fund to provide security for the ongoing payment of spousal maintenance ─ Where the Court was not satisfied that it was necessary for security to be provided ─ Application of the wife for security for spousal maintenance dismissed

FAMILY LAW ─ COSTS ─ Where the Court found it was the husband’s failure to pay the arrears of spousal maintenance and the husband’s failure to provide financial disclosure in a timely way to the single expert which necessitated the application of the wife ─ Where the Court found the husband to be in a far superior financial position to that of the wife ─ Where the Court found it appropriate that the husband pay the wife’s costs of the application as agreed or assessed on a party and party basis

Family Law Act 1975 (Cth) s 117(2A)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

APPLICANT: Ms Krusaroski

RESPONDENT: Mr Krusaroski

FILE NUMBER: SYC 626 of 2012

DATE DELIVERED: 20 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Coleman & Greig Lawyers

COUNSEL FOR THE RESPONDENT: Mr Stenhouse

SOLICITOR FOR THE RESPONDENT: Rockwell Olivier Sydney Pty Ltd

Orders

BY CONSENT IT IS ORDERED:

1. That the Husband pay to the Wife within seven (7) days of the date of these Orders the sum of $7,628.28 by way of reimbursement of expenses paid by the Wife though payable by the Husband pursuant to Orders 2.1, 2.2, and 2.3 of the Orders dated 13 August 2012.

2. That the Husband shall forthwith cause his accountant to:

   2.1attend upon D Valuers at all reasonable times and to respond to all reasonable questions in relation to historical trading conditions for the financial year ended 30 June 2013 and secured or projected work in progress in the future;

   2.2complete the Husband’s individual taxation return for the financial year ended 30 June 2012;

   2.3complete the statutory accounts and company tax returns for H Pty Limited and C Pty Limited for the financial year ended 30 June 2012.

3. That the Husband shall or shall otherwise cause his accountant to comply with all reasonable requests for information or documents by D Valuers or any other valuer appointed by either or both parties to prepare a report in relation to any asset, liability or financial resource for the purpose of these proceedings.

4. That the Husband shall within twenty-eight (28) days provide to the solicitors for the Wife information relating to the acquisition or disposal of any assets or liabilities since separation to date including but not limited to the following:

   4.1The date of acquisition/disposal;

   4.2The source of funds for any acquisition; and

   4.3The application of the proceeds of any disposal including particulars as to bank account names and numbers.

5. That on or before the seventh (7^th) day of each month the Husband shall provide to the solicitors for the Wife particulars of any sale or purchase transactions conducted by the Husband in his individual capacity or on behalf of any entity in which the Husband has a direct or indirect interest.

6. That in the event that the Husband fails or neglects to comply with Orders 4 and 5 hereof within seven (7) days then the Husband’s Application for substantive financial relief shall be stayed and the Wife shall have leave to proceed to a hearing in relation to substantive financial relief on an undefended basis.

IT IS ORDERED

1. That the application of the wife for security for spousal maintenance is dismissed.

2. That the husband pay the wife’s costs of the application filed 21 January 2013 including the costs of today, on a party and party basis such costs to be paid within 30 days of agreement or assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Krusaroski & Krusaroski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 626 of 2012

Ms Krusaroski

Applicant

And

Mr Krusaroski

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before the court are financial applications in relation to ongoing proceedings between the husband and the wife.  The issues which have been raised in the hearing today relate to three matters.  One is the payment of arrears of spousal maintenance, those arrears not being arrears of periodic payment but arrears relating to the payment of specified expenses. That issue has been resolved by agreement.

2. The second is the failure of the husband to provide in a timely way the information required by the single expert. That issue has also been resolved by agreement except as to costs.

3. Thirdly, the wife seeks an order that the court set aside a fund of $50,000 or some other fund to provide security for the ongoing payment of spousal maintenance.

4. Dealing firstly with the application for security, I am not satisfied that the wife has made out a case to convince the court that it is necessary for security to be provided. There are no arrears of periodical spousal maintenance, and I do not propose to make that order.

5. Turning then to the issue of costs.  I accept that it is the husband’s failure to comply in a timely way with requests for information that necessitated the filing of the application by the wife on 21 January 2013. I accept that it is the husband’s failure to pay arrears of spousal maintenance, notice of which was given to him, that has necessitated a portion of the proceedings before me today. 

6. In those circumstances, and turning to the provisions of s 117(2A) of the Family Law Act 1975 (Cth), I observe that the financial circumstances of each of the parties are widely disparate, the husband being in a far superior financial position to that of the wife. Neither of the parties is in receipt of legal aid. It is the husband’s failure to pay the arrears of spousal maintenance and the husband’s failure to provide financial disclosure in a timely way which has necessitated the proceedings. Neither party has been wholly successful in relation to today’s decision.

7. In the circumstances which I have outlined, it is appropriate that the husband pay the wife’s costs of the application, but I do not find that the basis on which discretion should be exercised to order the husband to pay indemnity costs, dealing with the tests set down by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, has been made out.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 May 2013.

Associate: 

Date: 31.05.2013