Nour & Ackford (No 2)
[2023] FedCFamC1F 1096
•18 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nour & Ackford (No 2) [2023] FedCFamC1F 1096
File number: SYC 5516 of 2018 Judgment of: REES J Date of judgment: 18 December 2023 Catchwords: FAMILY LAW – COSTS – Where the husband is seeking an order for costs against the wife in relation to final property proceedings – Where the trial judge accounted for the parties’ income disparity with an adjustment in the husband’s favour – Where the trial judge made an adjustment in the husband’s favour to account for his greater initial contributions – Where both parties have significant assets – Where the husband seeks that his assessment of contribution entitlement be treated as an offer – Where a departure from the ordinary position that each party bear his or her own costs is not appropriate – Application dismissed Legislation: Family Law Act 1975 (Cth), ss 117(2A), 117(2A)(f)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rules 4.06, 4.09
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 12 December 2023 Solicitor for the Applicant: Karras Partners Lawyers Counsel for the Respondent: Mr Romaniuk Solicitor for the Respondent: Martin Street Lawyers ORDERS
SYC 5516 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NOUR
Applicant
AND: MS ACKFORD
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS:
1.That the application for costs filed 10 November 2023 is dismissed.
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 Nour & Ackford has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Proceedings between Mr Nour (“the husband”) and Ms Ackford (“the wife”) were heard by a judge of this court and determined by reasons delivered and orders made on 13 October 2023.
By an application filed on 10 November 2023, the husband seeks costs from 9 August 2021, that being the date upon which he filed his Financial Questionnaire in the proceedings.
The wife opposes the application.
The husband relies on a Financial Statement and an affidavit annexing his Financial Questionnaire. The wife relies on an affidavit and a Financial Statement. Each has filed written submissions.
On 9 August 2021, the husband filed his Financial Questionnaire. In that document, at Part B, he assessed his claim, at that date, to be 52.5 per cent of the asset pool. As I understand his case, he then contended for a 2.5 per cent adjustment in his favour by reason of his greater initial contribution.
In early 2023, the husband’s employment terminated and, by the time of the substantive hearing, he had not found alternate full time employment but was working as a consultant for two days each week.
The reasons for judgment in the substantive proceedings make it clear that, by the commencement of the hearing, the parties had been able to settle the balance sheet so that all issues of value were agreed. They had also agreed on the disposition of their real and corporate assets. The only issue to be determined at trial was whether there should be a cash adjustment and, if so, from whom, to whom and in what amount.
At the commencement of the hearing, each party relied on a Minute of Orders which each had filed on 29 September 2023.
The husband sought orders that the wife discharge a mortgage under which he was jointly liable with her over a property owned by her in Suburb J and that she pay to him the sum of $468,668. He would then cause the transfer to her of shares in a company controlled by her that were owned by a company controlled by him. Otherwise, each would retain the significant assets owned by each of them.
The wife sought the same order in relation to the shares, an order that each retain his or her property and an order that the husband pay her $550,000. She sought similar orders in relation to the mortgage over the Suburb J property.
The trial judge records in the reasons that, in the course of the hearing, the wife’s position changed and she sought an equal division of the assets, subject to a payment by her to the husband of $75,000.
Ultimately, the trial judge made the orders they both sought in relation to the shares and ordered that the wife pay the husband $375,000 which amounted to an adjustment in favour of the husband of 54 per cent of the agreed asset pool. Orders were made in relation to the Suburb J mortgage in accordance with the wife’s proposal.
In the reasons, the trial judge made an adjustment of one per cent in favour of the husband in recognition of his superior initial contribution and a further adjustment of three per cent in his favour in recognition of the disparity in the parties’ respective incomes.
This application is to be determined according to the provisions of s 117(2A) of the Family Law Act 1975 (Cth) which is reproduced below:
SECTION 117(2A)
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid;
(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;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The husband relied on a Financial Statement sworn on 24 November 2023 where he deposed that he had property with a net value of $5,758,715. Counsel for the wife conceded that she had net property of approximately the same value.
The husband sought to rely on the fact that he currently has income of $2,811 per week whereas the wife’s income is $7,365.
I do not consider that the disparity in income founds an order for costs in circumstances where, firstly, the disparity has already been recognized in the adjustment of their property and, secondly, where the husband has significant net assets.
Neither party was in receipt of legal aid.
The husband relies on the comment in the substantive judgement to the effect that the wife’s case, in seeking 55 per cent of the asset pool, was misconceived and points to her failure to acknowledge his greater initial contribution which was ultimately conceded.
Before me, the husband relies on the position stated in his Financial Questionnaire and asserts that, because he there represented that he would settle the matter on the basis that he received 52.5 per cent of the asset pool, the wife was wholly unsuccessful.
It is not asserted that either party failed to comply with orders.
The husband contends that the wife was wholly unsuccessful in that,
Ultimately, the husband sought an adjustment of 54% of the assets in his favour and unusually for contested proceedings of this nature the Court was compelled to make an Order reflecting the husband’s Application seeking 54% of the asset pool, and a finding that the “husband has made out his case”. (J48)
That was not, however, the husband’s position at the commencement of the trial when, in his Minute of Orders, he sought an order that the wife pay him $468,668. He may have changed his position in the course of the day (the matter was concluded in a day) but I was not provided with any evidence that he sought a distribution of 54 per cent in his favour at any time before the trial commenced.
The husband contends that the assertion in his Financial Questionnaire that his contribution entitlement was 52.5 per cent should be treated as an offer.
For the reasons which follow, I do not accept that proposition.
At the time the husband signed the Financial Questionnaire there was a significant dispute about both the quantum of the respective initial contributions and the present value of the assets. The assertion that the husband was entitled to 52.5 per cent was not one capable of acceptance because, one asks rhetorically, 52.5 per cent of what?
The reference in s 117(2A)(f) to offers in writing to settle the proceedings is reflected in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Rule 4.06 provides:
4.06 How to make an offer
(1)A party may make an offer to another party to settle all or part of a proceeding by serving on the other party an offer to settle at any time before the court makes an order disposing of the proceeding.
Rule 4.09 provides:
4.09 How to accept an offer
(1)A party may accept an offer to settle by notice, in writing, to the party making the offer.
(2)A party may accept an offer to settle at any time before:
(a)the offer is withdrawn; or
(b)the court makes an order disposing of the application or appeal.
(3)If an offer to settle is accepted, the parties must lodge a draft consent order.
If the husband sought the advantages provided in s 117(2A)(f) of making an open offer, he could have made one. He did not.
I am not persuaded to depart from the ordinary position that each party should bear his or her own costs and the application will be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 18 December 2023
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