Neville and Neville

[2011] FamCA 869

FAMILY COURT OF AUSTRALIA

NEVILLE & NEVILLE [2011] FamCA 869

FAMILY LAW – Application for variation of interim orders made by consent – Applicant unrepresented when consenting – Applicant seeks to set aside or vary rather than review Registrar’s order – Need to show a change of circumstance – No change shown – Application dismissed

APPLICANT: Mr Neville

RESPONDENT: Ms Neville

FILE NUMBER: MLC 2200 of 2011

DATE DELIVERED: 31 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Goldthorp

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED

1. That the application of the husband filed 17 September 2011 and the wife’s response thereto are dismissed.

2. That the husband pay the wife’s costs fixed in the sum of $5100, such sum to be paid from the proceeds of the sale of the former matrimonial home upon its settlement and such sum be debited from the ultimate share of the husband.

RECORDED  :  NOT TRANSCRIBED

IT IS NOTED that publication of this judgment under the pseudonym Neville & Neville 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 MELBOURNE

FILE NUMBER:  MLC 2200 of 2011

Mr Neville

Applicant

And

Ms Neville

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Neville, which he filed on 12 September 2011.  It is opposed by Mrs Neville.  The genesis of the application appears to be a consent order made by a registrar on 23 August 2011 in a conciliation conference.  That order required Mr Neville to do a number things of a discovery nature but particularly relevant to these proceedings was an order that, pending the sale of the home of the parties, Mr Neville continue to service all principal and interest pursuant to the mortgage as and when it fell due. 

2. In these straitened property times, it was rather fortuitous for the parties that their home sold almost immediately and I am told the settlement of the sale occurs on 9 December. 

3. Thus the problem really only covers the period from the first payment after the orders of 23 August up until the settlement in December.

4. Although the application on its face looked like a review of the registrar’s decision, the reality is that for me to treat it as such I would have to be dealing with the case on the same basis as the registrar was in the conciliation conference.  Neither party had any interim application before the Court on that date. 

5. The only way I can interpret the application is that it is seeking orders to vary the orders that were made on 23 August.  That would then give rise to the question of whether or not there is some act or fact or circumstance that has altered since 23 August and particularly during the period between 23 August and when the application was filed on 12 September.

6. Notwithstanding all sorts of statements that are being made, I am determining the matter on the evidence that is presented to me. 

7. The evidence of Mr Neville is that he is spending more than what he earns.  The difficulty in that statement is that a substantial part of what he spends goes on a credit card which he has elected to pay at the rate of about $4,000 per month.  He noted in his earlier financial statement that his minimum obligation was $73 and I presume that that was on a weekly basis.  On any view, therefore, he is paying more than he needs to.

8. Whilst he points out that if he was to not pay the sum of $4,000 per month the credit card would not be available to him and his wife when the credit facility ran out.  But that seems to me to avoid the real issue which is that there has been no substantial change in circumstances since 23 August. 

9. What Mr Neville sought was that the wife make a monthly contribution of $600 towards the cost of living for the family.  I am not entirely sure what the basis was but I construe it as a maintenance obligation.

10. He then sought that she make a contribution of $1,000 from her savings towards the shortfall of funds which occurred in August where he paid the mortgage payment.  That probably is not a spousal maintenance claim so much as an application for a partial distribution of property on the basis that the money was in the wife’s savings. 

11. The fundamental, undisputable fact in this case is that the husband earns about five times what the wife earns.  They are both living under the one roof and there is a settlement of all of the problems effectively in only five weeks time.

12. In my view, there has been no change of circumstance here that would justify me revisiting the orders that were made on 23 August.  There is no evidence to suggest that the matter cannot wait for a final hearing and on that basis I propose to dismiss the application.

13. There is an application arising out of the orders I have just made for costs. Section 117 of the Family Law Act says that in proceedings in this Court each party shall bear their own costs unless there are circumstances justifying a departure from that principle and in contemplating whether to so depart from the principle the Court is to take into account the matters set out in section 117(2A) of the Act.

14. The justifying circumstance in this case is that the husband was put on notice by five letters over a relatively short space of time telling him that the application was doomed to fail.  His view was that he had no choice but to do it because of the fact that the wife had money in her savings account.

15. Having regard to what I have earlier said about the basis of the application, there are justifying circumstances in this case to make an order for costs. 

16. If I look at section 117(2A) it is clear that the financial circumstances of the parties at the moment are somewhat straitened but, by the same token, they are about to have a windfall in the sense that their home in Suburb B has been sold. There will no doubt be some money freed up for their future purposes from that sale.

17. I am also entitled to take into account questions such as whether a party is governed by a grant of legal aid, and in this case no one is, and also whether the applicant, in this case, has been wholly unsuccessful.  It must be said that Mr Neville has been wholly unsuccessful and in my view his application was most unwise. 

18. In this case there is a justification for an order for costs. The application for costs also seeks to depart from the scale costs set out in the Family Law Rules 2004 and seeks costs on an indemnity basis.

19. I have been provided with a copy of the agreement between solicitor and client dated 31 January 2011 and can see the connection between the schedule given to me and that cost agreement.

20. However, as I pointed out, some of the matters in the wife’s affidavit are extensive and unnecessary.  But that, by the same token, must have arisen because of the confusing nature of the application that Mr Neville filed.  It seems to me, however, that this is a case where it is not appropriate to make an order for indemnity costs, notwithstanding the five letters of advice to Mr Neville that he ought not proceed.  But it is a matter on which the scale should apply. 

21. Rather than go through the exercise of having the parties try and reach agreement about costs, which seems unlikely, having regard to what has occurred up until now, and rather than put them both to the expense of having to undergo an assessment by a registrar, it seems more appropriate that I try and determine the matter within the parameters of the scale, using the units of time in the schedule given to me and working on the basis that the documents I have read certainly are within at least some of the parameters of the dispute today.  I propose to fix the cost at $5100 and that includes counsel’s fees.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 October 2011.

Associate: 

Date:  31 October 2011