Montesi and Montesi (No. 2)

[2009] FamCA 286

FAMILY COURT OF AUSTRALIA

MONTESI & MONTESI (NO. 2) [2009] FamCA 286

FAMILY LAW – COSTS – Costs Orders made on a party-party basis

Family Law Act 1975 (Cth)

APPLICANT: Ms Montesi

RESPONDENT: Mr Montesi

FILE NUMBER: SYF 3505 of 2006

DATE DELIVERED: 30 March 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 30 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: K P Lawyers and Barristers

SOLICITOR FOR THE RESPONDENT: Miller Goddard Solicitors

Orders

1. That the husband pay half of the wife's costs on a party-party basis of and incidental to her Application in a Case filed 20 February 2009 as assessed and agreed upon, or failing agreement, as taxed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3505 of 2006

MS MONTESI

Applicant

And

MR MONTESI

Respondent

REASONS FOR JUDGMENT

Introduction

1. An oral application for costs is made on behalf of the wife.  The costs so sought are of and incidental to her Application for Review filed 20 February 2009.

2. I find that there is a circumstance which may justify an order being made.  The circumstance is that the husband’s application for interim spousal maintenance was wholly unsuccessful.  In addition, a further circumstance is that orders were made today which are similar in substance to the alternative orders sought in paragraph 3 of the wife’s Response to an Application in a Case filed 17 February 2009.

3. I take into account the following matters:  the income, property and capacity to earn income of the husband is as set forth in my judgment earlier today; the wife’s financial circumstances as set forth in her Financial Statement sworn 4 March 2009.

4. Her available net property is greater than that of the husband but nonetheless relatively modest, subject to one important exception, that is, the valuation yet to be forthcoming by the single joint expert of her shareholding in P Company Pty Limited.  I also take into account that the wife has had the benefit of a financial resource, namely her father, in that counsel appearing for her also appeared for the company of which the father, on the material before me to date, is the controlling shareholder, if not by dint of his shareholding, then having regard to the practicalities of the situation.

5. The husband was wholly unsuccessful in relation to his application for interim maintenance.  He was partly successful in relation to his application for interim costs.  The wife was also partly successful in relation to interim costs because of the alternative orders sought by her in her Response to which I have made earlier reference.

Conclusion

1. I have concluded that an order will be made that the husband pay half of the wife’s costs on a party-party basis in relation to his Amended Application in a case filed 19 March 2009 for the following reasons.

2. The husband’s application for an interim spousal maintenance was seriously flawed.  The fundamental evidence that should have been put forward in relation to the manner and detail of the calculation of all of his contended average weekly expenditure was absent not only from his financial statement but also his affidavit.

3. In addition, it should have been reasonably obvious that an issue would arise in relation to the receipt by the husband of $60,000.00 in the seven-month period already identified in the judgment and that it was to his advantage to set out in his affidavit the manner in which those funds had been utilised by him.  In addition, the husband had received $18,000.00 from the sale of property, which was also not accounted for in his affidavit.

4. The position was further compounded by a lack of evidence given by him in his affidavit dealing with the range of his capacities to earn income referred to in the judgment.  As a result, his application for interim spousal maintenance had little merit, if any.

5. So far as the application for interim costs is concerned, the husband was partly successful and consequently I will not make an order for the wife’s costs that reflect that part of the proceedings.  It follows that an order will be made that the husband pay half of the wife’s costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  20 April 2009