Louis and Boch and Ors (No. 3)

[2007] FamCA 1695

FAMILY COURT OF AUSTRALIA

LOUIS & BOCH AND ORS (NO. 3) [2007] FamCA 1695

FAMILY LAW – COSTS – Application by wife seeking husband pay 80% of her costs and paternal grandparents 10% each – Consent orders previously reached – Financial circumstances of parties – Conduct of husband in proceedings – Husband filed voluminous, unnecessary, over detailed and repetitive material – Significant time and cost incurred by wife to respond – Husband’s failure to comply with orders to file documents in preparation for trial – Truthfulness of parties in proceedings – Consideration of offers made by parties – Trial proceedings not completely wasted – Documentation filed by husband and paternal grandparents most significant and determining  factor – Appropriate for husband and paternal grandparents to pay proportion of wife’s costs

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Louis

RESPONDENT: Mr N Boch

INTERVENOR: Mr W Boch & Ms J Boch

FILE NUMBER: ADF 611 of 2005

DATE DELIVERED: 18 December 2007

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 18 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O'Connor

SOLICITOR FOR THE APPLICANT: Mellor Olsson

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Self-Represented

COUNSEL FOR THE INTERVENOR: N/A

SOLICITOR FOR THE INTERVENOR: Self-Represented

Orders

1. That the husband pay 50% of the wife’s costs of today’s proceedings.

2. That the paternal grandparents each pay 5% of the wife’s costs in relation to today’s proceedings.

3. That those costs be paid in an amount as agreed within 60 days of the date hereof, or otherwise as taxed.

IT IS NOTED that publication of this judgment under the pseudonym Louis & Boch is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 611 of 2005

MS LOUIS  

Applicant

And

MR N BOCH  

Respondent

EX- TEMPORE REASONS FOR JUDGMENT

1. The parties to these proceedings separated in April 2004.  After some discussions and negotiations between them failed to achieve any resolved outcome, the husband instituted proceedings on 3 May 2005.  After a lengthy interlocutory process, the matter eventually came on for trial before me on 8 October 2007 and ran for some 4 days before to their credit, the parties reached agreement late on 11 October 2007.  That resulted in me recording consent orders as to all issues that impacted upon their son … (“[the child]”) born in February 2001.  In relation to property matters, the parties, again to their credit, had resolved all issues by consent orders made by me earlier, namely on 10 October 2007.

2. It is the application of the wife that her costs be paid by the applicant husband and the applicant paternal grandparents with her Counsel identifying the proportions sought as being 80% of the wife’s total costs to be paid by the husband and 10% to be paid by each of the applicant paternal grandparents.

3. In making a determination on a costs application I have to have regard to the provisions of Section 117 of the Act, particularly Section 117 (2A).  The first matter that requires my attention is:-

(a)the financial circumstances of each of the parties to the proceedings;

1. No party today addressed me on the issue of financial circumstances and I assume from that that there are no matters that they wish to put to me as to their capacity to afford to pay the costs.  In any event, having presided over the trial which includes the issues of property settlement between the husband and the wife, I am aware of their individual financial circumstances.  Each of them filed a Financial Statement in the proceedings, the husband on 4 May 2007 and the wife on 22 December 2006.  There was also some evidence traversed on the issue.  In any event, I have been made aware today that the property is to go to auction tomorrow with a reserve of $295,000.  There is a mortgage due of some $100,000 and thus the net return from the sale of the property, if indeed it sells at or about the reserve, will be in the order of $175,000 to $195,000.  The property Orders made on 10 October 2007 record that the husband is to get 40% of that figure, which is a figure of between $70,000 and $78,000 roughly.  I appreciate that the parties may not achieve what they hope in relation to the sale of the property but in any event, I am satisfied that the husband, in combination with his work and his share of the proceeds of sale of the former matrimonial home premises, would have the capacity to meet any order for costs that I make.

2. Mr W Boch, the paternal grandfather, did not make an issue about financial circumstances being a reason why I ought not to award costs and it was evident during the trial of the proceedings that Mr W Boch has expended considerable energy and expertise during his working life and has set up a secure financial situation and future for himself and his family.  Today Mr W Boch has intimated from the bar table that his financial circumstances are not as strong as the impression left during the course of the trial.  He has indicated that whilst he would struggle to find something in the order of $15,000, being a roughly calculated 10% of the total sum being sought by the wife from both himself and his wife, he could nonetheless “at a pinch” find the money.

(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;

1. This sub-section is not relevant to my determination.

(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 pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

1. This is a critically important sub-section within the context of my determination.  In my view, the wife was obliged to expend considerable energy, resources and hence costs in meeting the voluminous materials that were filed by the husband in these proceedings.  The husband, in his list of documents that he asked me to rely upon in the trial of the proceedings, listed a significant number of documents for the Court’s consideration, some 23 in total and most of which were affidavits.   The very nature and form of the applications filed by the husband, which became evident during the course of the proceedings leading up to trial and confirmed during trial, bore the heavy influence of some legal advice and assistance that he had received from somebody other than a lawyer and who, in most likelihood, was Mr Z.  I say “in most likelihood” because Mr W Boch, in his evidence, acknowledged quite appropriately and honestly that assistance and advice had been secured from Mr Z. 

2. The end result though, no matter who prepared the documents, is that they were loquacious, unnecessarily extensive and absurdly over-detailed.  That continued through the entire theme of the documents but particularly the affidavits which are not only substantial as to size but also as to length and the number of annexures attached.  It is my assessment that the husband and his parents could perfectly adequately have presented their case to the Court without the enormous amount of detail and in many instances, repetitive information.  A pattern of some of the documents is not just to annex materials but also to quote at length from other materials that had been provided to the Court in proper fashion.  In any event, and by way of example, the affidavit of the husband filed on 29 February 2007 runs to some 522 paragraphs spread over some 135 pages and then a further 140 pages (approximately) of annexures.  His affidavit of 6 March 2007 was, including annexures, a further 58 pages.  His affidavit of 10 July 2007 ran for some 506 paragraphs and in total with annexures, was constituted by some 215 pages.  Subsequent to that, there were additional further shorter affidavits filed by him and a further affidavit filed on 6 September 2007 which extends for some 94 paragraphs and was 73 pages in total.

3. That is not the only issue of conduct within the meaning of sub-section (c) that the Court needs to have regard to and in that respect, I refer to the husband’s failure to comply with a number of Orders of the Court to file his documents in preparation for the trial of the proceedings.  Dawe J made various Orders at various stages for the filing of documents in order to prepare the matter properly for trial.  The first of those Orders was made on 13 July 2006 when a time table for the filing of Rule 15 Affidavits was set out.  When the matter returned to the Court on 6 February 2007 neither party had complied and the time for the filing of documents was extended to 27 February 2007 for all parties.  When the Court was again seized of the matter on 9 March 2007, the wife had complied as had the paternal grandfather, but neither the husband nor the paternal grandmother had complied.  The matter then returned to Court on 11 May 2007 and again the husband had not complied nor had the paternal grandmother.  They were granted a further 21 days to comply.  On 8 July 2007 when the matter came back before the Court again the husband had still not complied formally but had served an unsealed copy of his proposed affidavit.  He eventually complied on 10 July 2007.

4. A further matter for my consideration is as to the truthfulness of the parties.  I need to be somewhat cautious in that the wife was not cross-examined and if indeed there were occasions when she might not have been truthful with the Court, there was no opportunity for those moments to be exposed.  Having said that though there were a number of clear examples where the husband had not been truthful with the Court and indeed were not just matters exposed during cross- examination but matters which were acknowledged by the paternal grandfather during his evidence.  To his credit he was entirely honest in making concessions against his own son which he would have known at the time did not favour his son.  However, he remained honest and whilst he knew it would be harmful to his son, told the Court that he had been present in Court himself on a number of occasions when his son had lied to the Court and when he knew that the matters being put to the Court by his son were simply not true.  They are matters that I need to consider in terms of the husband’s conduct during these proceedings.

5. A further issue which was raised by Dawe J was as to the husband’s need to secure proper legal advice to assist him.  The suspected involvement of Mr Z, since confirmed by the paternal grandfather during his evidence given at trial, was clearly the matter to which her Honour was referring.  I am confident that the husband would not have been trapped into filing such ridiculously and abhorrently lengthy documentation in the conduct of these proceedings had he been able to afford, or for other reasons been able to secure, proper and adequate legal advice.  The consequences for the wife were significant and serious.  To have to respond to such an absurd amount of unnecessary material required a good deal of time, attention and consequent cost.  It was not for her to take the risk that most of it was irrelevant and inadmissible or unhelpful to the Court.  She needed to consider every piece of that material just in case there was something buried therein that was going to be of significance in the determination of the proceedings.  That is not to say that the matters raised in those affidavits did not properly raise issues that the Court needed to consider and determine, it is simply that the length and form and repetition is a matter of the gravest concern.

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

1. This is not raised as an issue by the parties within the context of this costs application.  It is the husband’s contention that he needed to institute proceedings in order to get orders that were more appropriate for the child but neither party contends that it was as a result of the failure by the other to comply with previous Orders that prompts matters of relevance for the costs determination.  If this sub-section is intended to refer also though to Orders made by the Court requiring compliance with filing regimes and the like, I have already dealt with that comprehensively above.

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

and

(f)whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

1. Sub-section (e) is a matter agitated by each of the parties and both spent a great deal of time and energy in addressing me on those matters.   In my view, sub-section (e) is linked to sub-section (f) and it would therefore be appropriate for me to consider both of these sub-sections together.

2. It is the husband’s contention that he made just such an offer in a letter to the wife’s solicitors dated 2 February 2007.  In that letter of offer, which I now have before me, he referred to the recommendations of Dr J O made in her Family Assessment dated 16 January 2007.  The proposal though was not as to final resolution of all issues between the parties but as to whether or not it was appropriate that there be a three month trial of her recommendations.  The husband says, and it was not disputed by counsel for the wife, that he did not receive any response to that proposal.

3. The next event in terms of offers and counter offers was on 8 March 2007 when the wife’s solicitors forwarded both to the husband and to the paternal grandparents an offer to settle.  I have that document before me today also. 

4. The proposal which the husband sought to adopt for a three month trial amounted to some 10 nights in 28.  The husband has now just handed to me another document dated 29 January 2007 which refers in far greater detail to the report of Dr J O dated 16 January 2007.  Interestingly, the offer of 29 January 2007 is unconditional and does not suggest a three month trial period and yet some four days later, the husband sent a further offer suggesting instead that it be for a three month trial period.  He tells me today that that was because he had received no response to the earlier offer.  The offer made on 8 March 2007 by the wife through her representatives was to the effect of 8 nights in 28. 

5. Ultimately, after the evidence of Ms O had been heard, I expressed some intimations to the parties which led to them having some further discussions and ultimately to a settled outcome.  That settled outcome resulted in the husband receiving, although in a slightly different form, the amount of nights which had been proposed by the wife in her offer of 8 March 2007, namely some 8 nights in 28.  That position had in fact been the case since August 2006.  However, subsequent to the offers of 29 January 2007 and 2 February 2007, the husband filed a further Amended Application on 25 July 2007 which is again quite a voluminous document and setting out a considerable raft of proposed orders, the orders being sought running to some 53 paragraphs.

6. Of critical importance though to this application today is the fact that despite his earlier proposals to resolve the matter on a different basis, on 25 July 2007 he publicly flagged to the Court and more significantly to the wife, that his primary position as set out in paragraph A (2) of the Orders sought by him was that the child live with him.  He then proposed that the child would spend time with the wife, ignoring school holidays and special events about which there was no significant contention by the parties at relevant times, for 3 nights in 14 or 6 nights in 28.  That was the position that the wife was entitled to consider was the application the husband was agitating and was the position he confirmed on the first day of trial.  The eventual outcome was, of course, far removed from that application that he made.

7. He did though raise issues which the Court did consider to be important.  Whilst there was a good deal of contention between the parties about the speech therapy that the child had received and should receive, some of the actions taken by him were justified but in my view, he became obsessed with the issue and there are a number of occasions where I noted, during the trial of the proceedings, that much of what he was doing was more in the nature of controlling actions and behaviour than what the Court would consider to be appropriate concern for his son.  However, that is not to say that in his mind his concern for his son was not properly founded.   The Court received evidence of the child’s development upon seeing 2 DVD’s spaced some months apart, the latter of those was sufficiently proximate to the trial for it to be impossible for the Court to say whether or not the husband’s actions had in some way promoted the child’s rapid development.

8. The Court had no opportunity to assess the wife’s credit as she was not cross-examined because the matters were resolved between the parties prior to that time.  There was though also the issue of property settlement and from the documents provided to me by the husband today, there does not appear to be any evidence that he turned his mind to the issue of property settlement at all in those negotiation stages or if he did he certainly did not set out any detailed offer to cover the issue of property settlement.  The wife though did and it is contained in the offer of settlement forwarded to the husband and the paternal grandparents on 8 March 2007.

9. As to the issue of property settlement, that offer of settlement of the wife proposed that the former matrimonial home property at S be sold and that the net proceeds be divided as to 60% to the wife and 40% to the husband.  That reflects exactly the Orders that were made by the Court by consent on 11 October 2007.  Thus in relation to the property settlement proceedings, it could be said that the wife was wholly successful and the husband wholly unsuccessful.  That though needs to be tempered as to what the husband might have viewed as being an appropriate and necessary outcome.  I do not dismiss the possibility that he was of the view that negotiations on that might have been pointless but in any event his opposition to the proposal put by the wife as far back as March led to the matter needing to reach the trial stage and being agitated at trial for 3 days prior to its resolution and thus putting to the wife the costs in relation to dealing with same. 

10. Overall and in summary, in my view it is appropriate that I make an order for costs in favour of the wife in these proceedings.  In my view the entirety of the trial proceedings were not wasted in that it was necessary to air a number of concerns and a number of grievances and indeed to hear evidence from Dr J O which assisted the parties to being directed to what in my view was the proper outcome.  I therefore do not believe it appropriate that the husband pay all of the costs of those trial proceedings or indeed, the paternal grandparents a significant proportion of the whole.  However the issue in relation to matters leading up to trial is significantly different.

11. The voluminous documentation filed by the husband, and I must add also by the paternal grandparents, is in my view the most significant and determining factor.  Whilst the documents filed by the paternal grandparents were not nearly as voluminous or as frequent and regular as the husband’s, the paternal grandfather’s trial affidavit (by way of example) is some 194 paragraphs long containing numerous sub-paragraphs and extends for some 55 pages, the paternal grandmother’s affidavit covers some 157 paragraphs and 43 pages.  Thus, in my view, on balance I am satisfied that it is appropriate to Order:-

    1.      That the husband pay 60% of the wife’s total costs up to the first day of trial.

    2.      That the paternal grandparents each pay 5% of the wife’s total costs up to the first day of trial.

1. As to the costs of the trial proceedings, in my view it is more appropriate to order:-

   3.     That the husband pay 40% of the wife’s trial costs; and

   4.     That the paternal grandparents each pay an amount of 5% of the wife’s trial costs.

2. I further order:-

   5.     That those costs be paid in an amount as agreed within 60 days of the date hereof, or otherwise as taxed.

   6.     That the husband be restrained and an injunction is hereby granted restraining him from receiving an amount of $50,000 of his share of the net proceeds of sale of the former matrimonial home property pending the final discharge of the agreed or taxed costs ordered to be paid by him.

   7.     That the land broker or solicitor charged with the responsibility of effecting settlement on the sale of the former matrimonial home property be restrained and an injunction is hereby granted restraining him / her from releasing an amount of $50,000 of the husband’s share of the net proceeds of sale of the former matrimonial home property to the husband pending written agreement between the parties or further order of this Court and consequent upon the husband abiding with the Orders for costs to be paid by him at the agreed or taxed amount.

3. Counsel for the wife has now made a further oral application for costs of today’s hearing, a hearing which has extended now for some 2 – 2 ½ hours.  She seeks an amount of $3,000.  Again I need consider the provisions of Section 117(2A) of the Act but in my view the principal issue for my determination is the question of whether or not one party was wholly unsuccessful.  The husband and the paternal grandparents were not wholly unsuccessful on the application for costs before me today in that the wife sought 100% of her costs and it was my determination that it was not appropriate that she receive 100% of the costs.  Certainly though she will receive, by my order, a significant proportion of the same.  I therefore further Order:-

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  18 December 2007