ODETTE & LOTTO

[2018] FamCA 733

FAMILY COURT OF AUSTRALIA

ODETTE & LOTTO [2018] FamCA 733

FAMILY LAW – ENFORCEMENT OF ORDERS – where the wife seeks the enforcement of final property orders – undefended hearing – where the husband withdrew instructions from his solicitor and counsel during the day and left the Court precincts –  where the husband has failed to comply with final orders – orders made enforcing final orders.

FAMILY LAW – COSTS – order that the husband pay the wife’s costs on a solicitor/client basis.

Family Law Act 1975 (Cth) ss 105, 106A, 117
Family Law Rules 2004 (Cth) r 19.18

Hand & Bodilly [2013] FamCAFC 98
I and I (1995) FLC 92-625

APPLICANT: Ms Odette

RESPONDENT: Mr Lotto

FILE NUMBER: MLC 11704 of 2015

DATE DELIVERED: 14 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Salamanca

SOLICITOR FOR THE APPLICANT: Berry Family Law

THE RESPONDENT: No Appearance 

Orders

1. That pursuant to Section 106A(1)(b), the wife, Ms Odette be appointed to execute all documents in the name of the husband, Mr Lotto in order to:-

   (a)      effect the transfer of the property known as B Street, Suburb C (“the B Street property”) to the wife, pursuant to order 3 of the orders dated 8 June 2017 (“the Final Orders”), such documents including but not limited to the State Revenue Office Digital Duties, Transferor Statement and Client Authorisation Form as mandated by the Australian Registrar National Electronic Council (“ARNECC”);

   (b)      assign the Residential Tenancy Agreement with respect to the B Street property to the wife pursuant to order 7 of the Final Orders;

   (c)      effect the rollover of $200,000 from the wife’s entitlements in the D Super into her E Super account, member number #25 pursuant to order 16(e) of the Final Orders.

2. That the husband by himself, his servants and agents be and is hereby restrained from selling or further encumbering the property at F Street, Suburb G (“the F Street property”) and the wife be permitted to lodge a caveat against the property.

3. That forthwith the wife be appointed as trustee for the sale of the F Street property, such sale to be at auction by H Real Estate with the reserve price of $820,000 and upon completion of the sale, the proceeds of sale including the deposit be distributed in the following priority:-

   (a)     First, to pay all agents’ commissions and marketing costs of sale;

   (b)     Second, to discharge any encumbrances affecting the F Street property (if any);

   (c)     Third, to reimburse the wife rental income with respect to the B Street property from 22 June 2017;

   (d)     Fourth, interest of $5,500.00 to the Wife;

   (e)     Fifth, all land tax, rates and outgoings with respect to the B Street property;

   (g)     Sixth, 50 per cent of the arrears of school fees, school uniforms, books and medical expenses payable by the husband pursuant to order 25(b) of the Final Orders;

   (h)     Seventh, the legal costs of J Lawyers associated with the transfer of the B Street property and the sale of the F Street property;

   (i)     Eighth, the wife’s costs of and incidental to her Applications in a Case filed 19 April 2018 and 20 July 2018 as agreed between the parties and in the event of no agreement as assessed on a solicitor/client basis; and

   (j)     Ninth, the balance to the Husband.

4. That the husband co-operate to the fullest extent and do all such acts and things and sign all necessary documents to facilitate the F Street property.

5. That until further order the husband by himself, his servants and/or agents each be and are hereby restrained from;

   (a)     dealing with, disposing of or encumbering the F Street property;

   (b)     interfering with the sale process of the F Street property;

   (c)     coming within a radius of 50 metres from the boundary of the F Street property;

   (d)     dealing with any asset including any cash deposits held by D Super.

6. That Order 4 of the Orders dated on 9 May 2018 be discharged.

7. That the husband and wife jointly retain J Lawyers to conduct the conveyancing for the sale of the F Street property.

8. That the wife have liberty to apply with respect to the implementation of these orders.

9. That the wife’s Applications in a Case filed 19 April 2018 and 20 July 2018 and the husband’s Response to an Application in a case filed 7 May 2018 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11704 of 2015

Ms Odette

Applicant

And

Mr Lotto

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before the Court upon the application of the wife to enforce final property orders.

2. The matter proceeded before me on an undefended basis in the Judicial Duty List.

3. At the commencement of the hearing, the husband was represented by both counsel and solicitor. By agreement, the matter was stood down at approximately 10:10am to enable the parties to have discussions.  The hearing resumed at approximately 12:11pm.  At that stage, counsel for the husband sought leave to withdraw both on her own behalf and on behalf of the husband’s solicitor.  The husband’s counsel informed the Court that the husband had withdrawn his instructions, stating to her:

   Send me the bill. Do whatever you like. I’m not doing it

   Thereafter the husband left the Court precincts and did not return to the Court.  In the circumstances I granted leave for the husband’s counsel and solicitor to withdraw.

4. As a result of those events the wife sought that her application proceed on an undefended basis.

5. Given that the husband was represented at the commencement of the day, and attended Court for the hearing, I am satisfied that he had notice of the proceeding.  The orders sought by the wife were those contained in her Application in a Case filed 20 July 2018, save that she did not seek to press her application for orders in the terms of paragraph 6 and 7 of that application.  In addition, the wife sought injunctions in the terms of a handwritten minute of order which had been presented to the husband’s lawyers during the course of the morning.  Having regard to those matters, I am satisfied that the husband had notice of the wife’s application.  In the circumstances, I granted leave for the wife to proceed with her application on an undefended basis.

Background

1. The wife is aged 47 and the husband is aged 49. The parties married in 2001 and separated on 19 December 2014.

2. There are four children of the marriage, W aged 14, X aged 13 and Y and Z, twins, aged nine. X, Y and Z have various disabilities. Final parenting orders were made by consent on 9 June 2017 with further parentings orders made on 8 May 2018.

3. Final property orders were also made by consent on 9 June 2017 by Cronin J (“Final Orders”).

4. The wife has an intervention order against the husband made on 22 June 2017 which expires on 15 May 2020.  

5. On 19 April 2018 the wife filed an Application in a Case seeking the enforcement of the Final Orders. The wife asserts in her affidavit filed the same date that the husband is in breach of a number of the Final Orders, in that he has failed to:

   ·    Transfer the property at B Street, Suburb C (“the B Street property”) to her (Pursuant to Order 3 of the Final Orders);

   ·    Assign the residential tenancy agreement for the B Street property to her and for her to receive all rental income (Pursuant to Order 7 of the Final Orders);

   ·    Provide a clearance certificate with respect to land tax and documentation that all rates and outgoing are paid with respect to the B Street property (Pursuant to Order 5(b) of the Final Orders);

   ·    Rollover her entitlements in the D Super (Pursuant to Order 16-23 of the Final Orders);

   ·    Pay half of the children’s school fees and expenses including tuition fees, tuition levies, books, uniforms, excursions and curricular activities (Pursuant to Order 25(b)(ii) of the Final Orders).

6. The Application in a Case of 19 April 2018 was originally listed before Cronin J on 9 May 2018 and orders were made by consent (“May 2018 Orders”) that day. Those orders provided, amongst other things:

   [B Street]:

   1.The parties forthwith jointly retain [J Lawyers] to act for them to effect the registration of the Transfer of Land of [B Street, Suburb C] into the name of the Wife as sole proprietor and share the costs of that firm equally.

   2.The Husband sign all documents and do all things necessary to assign the residential tenancy agreement for the [B Street] property to the Wife and the Wife shall receive all future rental income into her nominated account and she shall be solely responsible for any expenses and taxes in relation to the property from the date of assignment.

   Superannuation Rollout:

   3.The parties forthwith upon presentation of appropriate documents sign all documents and do all things necessary to effect a rollover of $200,000.00 from the Wife's member interest in the [D Super] into her nominated [E] Super account number #25 in partial satisfaction of paragraph 16 (e) of the Orders of 8 June 2017.

   4.That the husband do all acts and sign all documents necessary to effect a sale of the property situated at [F Street, Suburb G], which is currently listed for sale by auction on 7 July 2018, and from the proceeds at settlement of the sale the husband shall pay such sums as are necessary to enable the [D Super] to roll out the balance of the Wife's member interest to her super fund as specified in 3.

7. The May 2018 Orders also provided:

   13.That the matter otherwise be referred to the case management judge for fixing as an interim hearing relating to the enforcement of orders after 2 August 2018.

   14.The Wife's Application in a Case and the Husband's Response be adjourned to a date to be fixed after 3 August 2018 in the Judicial Duty List.

8. On 20 July 2018 the wife filed a further Application in a Case seeking additional orders to enforce the Final Orders. In her affidavit filed in support of that application the wife deposed that the husband had failed to comply with the May 2018 Orders. The wife deposed that the husband had failed to transfer the B Street property to her and that $200,000 has not been rolled into her nominated superannuation fund. Further, she deposed that the property at F Street, Suburb G (“the F Street property”) went to auction on 7 July 2018, but that the husband had set the reserve price at $900,000 despite a sworn valuation of the property in April 2017 valuing the property at $820,000. The F Street property was passed in at auction for $855,000.

9. The husband filed no responding material to the wife’s Application in a Case filed 20 July 2018.

10. On the day of the hearing before me I made the following injunctions:

    1.That the husband, by himself, his servants and agents be and is hereby restrained from selling or further encumbering the property at [F Street, Suburb G] (“the [F Street] property”) and the wife be permitted to lodge a caveat against the property.

    2.That the husband, by himself, his servants and/or agents each be and are hereby restrained from:

    (a)Dealing with, disposing of or encumbering the property at [F Street Suburb G]; and

    (b)Dealing with any asset including any cash deposits held by [D Super].

11. These are my reasons for judgment with respect to those orders and others I will make enforcing the Final Orders.

Material relied upon and orders sought

1. The wife relied on the following documents:

   ·    Application in a Case filed 20 July 2018;

   ·    Affidavit of the wife filed 19 April 2018;

   ·    Affidavit of the wife filed 20 July 2018; and

   ·    Affidavit of Ms K filed 20 July 2018.

2. The wife sought the following orders, as contained in her Application in a Case:–

   1.…

   2.That pursuant to Section 106A(1)(b), [Ms Odette] be appointed to execute all documents in the name of the husband, [Mr Lotto] in order to:-

   (a)transfer the property known as [B Street, Suburb C] (“the [B Street] property”) to the wife, including but not limited to the State Revenue Office Digital Duties, Transferor Statement and Client Authorisation Form as mandated by the Australian Registrar National Electronic Council (“ARNECC”);

   (b)assign the Residential Tenancy Agreement with respect to the [B Street] property to the wife;

   (c)rollover $200,000 together with interest the wife’s entitlements in the [D Super] [E Super], member number #25.

   3.An injunction be granted restraining the husband, his servants and agents from selling or further encumbering the property at [F Street, Suburb G] (“the [F Street] property”) and the wife be permitted to lodge a caveat against the property.

   4.That the wife be appointed forthwith as trustee of the sale of the F Street for the sale at auction by [H Real Estate] with the reserve price of $820,000 and upon completion of the sale, the proceeds of sale including the deposit be distributed in the following priority:-

   (a)First, to pay all agents commissions and marketing costs of sale;

   (b)Second, to discharge any encumbrances affecting the F Street property (if any);

   (c)Third, to reimburse the wife rental income with respect to the [B Street] property from 22 June 2017;

   (d)Fourth, interest of $5,500.00 to the Wife;

   (e)Fifth, all land tax, rates and outgoing with respect to the [B Street] property;

   (f)….

   (g)Sixth, 50 per cent of the school fees, school uniforms, books and medical expenses;

   (h)Seventh, the legal costs of J Lawyers associated with the transfer of the B Street property and the sale of the [F Street] property;

   (i)Eighth, the wife’s legal costs from September 2017 to date; and

   (j)Ninth, the balance to the Husband.

   5.That Order 4 of the Orders made on 9 May 2018 be discharged;

   6.…

   7.…

   8. That the husband and wife jointly retain [J Lawyers] to conduct the conveyancing for the sale of the [F Street] property.                 

3. The wife also sought the following orders in a minute handed up during the hearing:

   1.That the husband co-operate to the fullest extent and do all such acts and things and sign all necessary documents to facilitate the sale of [F Street Suburb G] (“[Suburb G]”)

   2.That the husband by himself, his servants and/or agents each be and are hereby restrained from;

   (a)dealing with, disposing of or encumbering [Suburb G];

   (b)interfering with the sale process of [Suburb G];

   (c)coming within a radius of 50 metres from the boundary of [Suburb G];

   (d)dealing with any asset including any cash deposits held by [D Super].

   3.Reserve liberty to the wife to apply with respect to the implementation of the orders made this day.

   5(a).That the husband pay the wife’s costs of and incidental to the Application in a Case filed 19 April 2018 and 20 July 2018 within 28 days of the date hereof and in the event that the husband fails to pay such costs they be paid out of the proceeds of sale of [Suburb G].

   (b).Such costs to be paid by the husband to the wife are fixed at

   6.That the wife’s Application in a Case filed 19 April 2018 and 20 July 2018 together with the Husband’s Response filed 7 May 2018 be otherwise dismissed.

   7.Certify for Counsel.

Discussion

1. Section 105(1) of the Family Law Act 1975 (Cth) (“the Act”) considers enforcement of Court orders. It states:-

   Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.

2. Pursuant to the provisions of s 105 of the Act the Court has a discretion as to whether to enforce orders. The exercise of that discretion requires the Court to take into account the facts arising subsequent to its final orders. If a party seeks an indulgence such that an order ought not be executed, the onus falls on that party to demonstrate that it would be inequitable for the order to be carried out in its literal terms.

3. Chapter 20 of the Family Law Rules 2004 (Cth) (“the Rules”) sets out the process for enforcing obligations in financial cases. Rule 20.07 of the Rules sets out the various orders that a court may make, which include orders in aid of an enforcement of an obligation, staying the enforcement of an obligation and varying, suspending or discharging an enforcement order. The Court has wide powers of enforcement.

4. The standard of proof with respect to such matters is the balance of probabilities. 

5. The wife seeks to enforce the final orders with respect to:-

   (a)the transfer of the B Street property to her;

   (b)the assignment of the tenancy agreement in relation to B Street property to enable her to receive rentals from that property;

   (c)a clearance certificate with respect to land tax and documentation confirming payment of rates and outgoings on that property;

   (d)the rollover of her superannuation entitlements in the parties’ self-managed superannuation fund; and

   (e)the payment of arrears of expenses in relation to the children.

6. The husband filed a Response to Application in a Case on 7 May 2018 in respect of the wife’s first Application in a Case.  That response sought interim parenting orders, a departure order in respect of child support and discharge of child support arrears and the dismissal of the wife’s Application in a Case.  The husband’s response was supported by his affidavit filed the same date.

7. In that affidavit, the husband deposed that there were difficulties and delays in effecting a transfer of the B Street property to the wife.  The husband sought to sheet home responsibility for those delays to the wife’s solicitor. 

8. Further, the husband complained that the delays had been compounded due to the failure of the wife to remove caveats lodged by her in respect of properties in Suburb G pursuant to paragraph 11 of the Final Orders.  That order provides that the withdrawals of caveat are to be provided by the wife contemporaneously with the whole of the payment being made to the wife pursuant to paragraph 4 of the Final Orders. The payment by the husband to the wife pursuant to paragraph 4 of the Final Orders was outside of the time provided by the Final Orders. Nonetheless, it is conceded by the husband at paragraph 41 of his affidavit that those caveats were withdrawn by the wife in mid- to late-December 2017.  The husband proffers no explanation as to why the Final Orders have not been complied with by him since that date. 

9. As to the wife’s application to enforce the rollover of her superannuation entitlements, the husband’s explanation is that both he and the wife had been “tardy” in providing relevant documentation to the parties’ accountant to implement those orders.  At paragraph 64 of that affidavit the husband deposed, “I remain agreeable to fully cooperate with the accountant to implement the relevant orders”.  Some four months since that affidavit was filed, the husband remains non-compliant with that order.

10. Finally, as to the child support orders, the husband deposes that he is not currently in employment, that his health has declined and that his financial situation is weak.    Accordingly, he sought a discharge of the orders relating to non-periodic child support. Given the husband’s departure from the Court prior to the commencement of the hearing, no submissions were made to advance that part of his application.  In the circumstances, I propose to dismiss that application.

1. That husband’s affidavit was filed on his behalf prior to the May 2018 Orders.  The purpose of the May 2018 Orders was to facilitate the implementation of the Final Orders.  They provided for the appointment of lawyers to register the necessary transfer of land in respect of B Street property.  They also made further provision for the husband to execute documents necessary to assign the residential tenancy agreement for the B Street property to the wife.  Similarly, orders were made in relation to the superannuation fund to enable execution of the rollover of the wife’s interests to a fund nominated by her.  Significantly, the May 2018 Orders were made by consent.  At the time those orders were made, the husband was represented by Mr Edmunds of counsel. 

2. The evidence of the wife in her affidavit filed 20 July 2018 is not challenged.  She deposes that notwithstanding the husband’s consent to the May 2018 Orders he has persisted in his non-compliance both with those orders and the Final Orders.  At paragraph 10 of that affidavit, the wife deposes as to text messages received by her from the husband on the day of the auction of the property at F Street property.  She deposes that at 11.59am on 7 July 2018, being approximately one hour after the auction she received a text from the husband which read: $$$ not today JJJ. 

3. In my view, that communication provides a clear indication as to the husband’s insolent attitude towards the wife and the orders of this Court.

4. The wife also relies on the unchallenged evidence of Ms K contained in her affidavit filed 20 July 2018.  Ms K is a legal practitioner with J Lawyers, the lawyers appointed by the parties to effect the transfer of the B Street property from the husband to the wife.  She deposed as to her communications with the husband since the May 2018 Orders were made. 

5. At paragraph 3 of her affidavit Ms K deposed as to a conversation between her and the husband which occurred on 16 May 2018 following the May 2018 Orders.  She deposed that when she informed the husband of her role in the matter he retorted with “When am I going to see my kids?”  When she reiterated the purpose for her call the husband responded saying, “When am I seeing my fucking kids?  I am doing nothing.”  When Ms K reminded the husband that he consented to the May 2018 Orders the husband replied, “Did I? I am doing nothing.”

6. Ms K also deposed that she wrote to the husband informing him of her fees for the transfer and requesting that he confirm his mobile telephone number, email and address and requesting him to provide his date of birth.  She also requested that he attend her offices with his passport and driver’s licence for verification of his identification.  Ms K deposed that she did not receive a response to that correspondence. 

7. Ms K deposed that she forwarded a further email to the husband on 23 May 2018 regarding arrangements for the transfer of the B Street property.  She deposed that she also attempted to telephone the husband that day.  She deposed that upon introducing herself to him, the husband ended the call.  Ms K deposed that she left further telephone messages with the husband on 25 May 2018 and 30 May 2018 to which he did not respond. 

8. I am satisfied having regard to the unchallenged evidence of Ms K that the husband has taken no steps to cooperate with her in order to give effect to the May 2018 Orders.

9. Further, I am satisfied having regard to the unchallenged evidence of the wife and Ms K that they have taken all necessary steps to facilitate execution of the Final Orders and the May 2018 Orders.  I am also satisfied that the husband has failed to comply with those orders and further that in his communication with both the wife and Ms K has indicated a defiant attitude towards his obligations under those orders. 

10. The wife is entitled to the fruits of the Final Orders she consented to in June 2017.  I am satisfied that the orders sought by the wife will enable completion of those orders to ensure that she receives that which she is entitled to pursuant to the Final Orders made by consent.

11. It is against that backdrop that the wife now seeks orders enabling her to be appointed pursuant to s 106A(1)(b) of the Act to execute documents in the name of the husband so as to effect the transfer of the property at B Street property to her and the assignment of the residential tenancy agreement. An order in those terms will also enable her to execute documents necessary to rollover her entitlements in the self-managed superannuation fund to a fund nominated by her.

12. She also seeks to be appointed as trustee for the sale of the F Street property which was ordered to be sold pursuant to paragraph 4 of the May 2018 Orders.  Upon sale of that property, the wife seeks that the costs and commissions of sale be met and the mortgage affecting that property be discharged.  Thereafter, the wife seeks payment of her entitlements under the Final Orders being:-

    ·    Reimbursement of rental income with respect to the B Street property as from 22 June 2017, being 14 days after the Final Orders were made and the date upon which the transfer of the B Street property to her was to be effected;

    ·    Interest in respect of the payment due to her pursuant to order 4 of the Final Orders.  The wife deposes that the payment due pursuant to paragraph 4(b) of the Final Orders was due on 8 August 2017 but in fact was not made until 7 October 2017.  Accordingly, the wife seeks interest in respect of the late payment ($5,500); and

    ·    Reimbursement in respect of the husband’s one half share of the school fees, school uniforms, books and the medical expenses for the children she has met since the Final Orders were made.  Pursuant to paragraph 25(b) of those orders, the husband is required to meet those expenses. 

13. As I have already noted the husband does not take issue with his obligations pursuant to the Final Orders. The husband does not deny the late payment pursuant to order 4(b) of the Final Orders.  Rather he attempts to apportion blame for his non-compliance in relation to those orders to the wife and her lawyers.  I do not accept the husband’s explanation for his non-compliance. 

14. Having regard to the husband’s ongoing non-compliance with the Final Orders and the May 2018 Orders I am satisfied that orders in the terms sought by the wife are appropriate.

15. Given the tone of the husband’s communications with the wife and Ms K, I am satisfied that it is appropriate that there be orders requiring his co-operation with the sale and restraining him from interfering with the sale process.   

16. In addition to those orders, during the course of the hearing oral application was made on behalf of the wife for injunctions restraining the husband from dealing with the F Street property and the assets of the self-managed superannuation fund pending his compliance with the Final Orders.  I made orders in those terms at the conclusion of the hearing.  I am satisfied that such orders were warranted in circumstances where:-

    ·    The husband’s non-compliance with the Final Orders was ongoing;

    ·    The unchallenged evidence of the wife and Ms K was that the husband was refusing to cooperate with the orders made by consent in May 2018 to enable execution of the Final Orders;

    ·    The husband deposed in his financial statement filed 7 May 2018 that he has transferred a one-half interest in the F Street property to his brother, Mr L Lotto.  A title search of that property conducted by the wife’s lawyer indicates that the sole registered proprietor of that property is the husband;

    ·    The husband has refused to effect a sale of the F Street property notwithstanding order 4 of the May 2018 Orders made by consent; and

    ·    The husband’s disengagement with the proceedings, choosing to leave the Court precincts prior to the commencement of the hearing before me;

    ·    The conduct of the husband identified in the preceding paragraph satisfies me that those injunctions are necessary to ensure that the husband does not take action which may have the effect of thwarting the completion of the final orders.

Costs

1. The wife also made an application for costs in relation to the hearing before me and the hearing in May 2018 in which costs were reserved.

2. The question of costs is governed by s 117(1) of the Act which provides:-

   Subject to sub-section (2), subsection 70NF(b)(1) and sections 117AA, 117AC and 118, each party to proceedings under this act shall bear his or her own costs.

3. That is, the general rule in proceedings under the Act is that subject to the provisions of s 117(2) of the Act, the parties to the proceedings shall bear their own costs of the proceedings.

4. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to sub-sections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.

5. Section 117(2A) of the Act provides that in determining what order (if any) should be made under sub-section (2) the Court must have regard to the following:-

   (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 and, if so, the terms of the grant of that assistance to that party;

   (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.

6. Costs are not awarded as punishment of the unsuccessful party, but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party as a result of having been required to participate in the legal proceedings.

7. The discretion in s 117 of the Act is broad and the relevant factors in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs but all factors must be taken into account and balanced (I and I (1995) FLC 92-625).

8. The Rules provide that the court may make an order for costs on a number of different bases and r 19.18 of the Rules sets out the method of calculation of costs, providing that:-

   (3) In making an order under subrule (1), the court may consider:

   (a)the importance, complexity or difficulty of the issues;

   (b)the reasonableness of each party’s behaviour in the case;

   (c)the rates ordinarily payable to lawyers in comparable cases;

   (d) whether a lawyer’s conduct has been improper or unreasonable

   (e) the time properly spent on the case, or in complying with pre-action procedures; and

   (f) expenses properly paid or payable.

9. The wife relies upon her financial statement filed 26 May 2017.  That statement discloses that the wife is engaged in home duties.  Her primary source of income is Centrelink benefits. 

10. The husband filed a financial statement on 7 May 2018.  In that document he deposed that he was unemployed.  Notwithstanding his unemployment, he continued to receive rental income from the properties at B Street and F Street.  In addition, he receives rental income from a factory owned by M Pty Ltd.  He also deposed to having property valued at approximately $1.923 million and liabilities of approximately $431,000.

11. Neither party is in receipt of legal aid.

12. The wife relies upon the conduct of the husband in the proceedings as the basis of her claim for costs.  It is submitted that these proceedings have been necessitated as a result the failure of the husband to comply with the Final Orders and the May 2018 Orders.  I accept that submission. 

13. The husband has been wholly unsuccessful in the proceedings.

14. Having regard to the above factors, I am satisfied that there are circumstances which justify an order for costs against the husband.  The wife seeks costs not only of the hearing before me but also the costs reserved following the hearing on 9 May 2018.  Again, that hearing was necessitated due to the husband’s failure to comply with Court orders.  It was submitted and I accept that the husband’s breach of the Final Orders commenced 14 days after those orders were made, when he failed transfer the B Street property to the wife, and has continued to this date. 

15. It was submitted that the wife has incurred costs totalling approximately $39,000, being fees of $33,500 to the day of the hearing before me together with counsel and solicitor fees of $5,800 for the hearing before me.  The wife sought that costs be paid by the husband on a solicitor/client basis. 

16. In Hand & Bodilly [2013] FamCAFC 98 the difference between party/party costs and solicitor/client costs was accepted to be:

    91.…

    … that on a taxation between parties on a solicitor and client basis, the unsuccessful party has to pay all the costs incurred by his opponent excepting in respect of (1) costs and expenses incurred prior to the institution of the action; (2) journeys and expenses of which the party liable could have no knowledge, and which would not ordinarily be performed or incurred; (3) the employment of more counsel, or the payment to them of larger fees than the circumstances of the case warrant, including the giving of special retainers.

17. Their Honours went on to compare solicitor/client costs with indemnity costs in the following manner:

    102.… Sometimes that discussion equates “solicitor and client” costs with “indemnity” costs but as Santow JA said in Bouras v Grandelis (2005) 65 NSWLR 214:

    125. The weight of authority is that solicitor and client costs and indemnity costs are distinct, though the difference between them has been eroded by practice and by inconsistent amendments to the various legislative instruments that make up the costs assessment regime.

    126. An order for solicitor and client costs will allow all reasonable costs or all costs as fair justice to the other party will allow. The onus of proving that the costs are reasonable falls on the receiving party.

    127. Historically, solicitor and client costs were somewhat more generous than party/party costs. …

18. The distinction between indemnity costs and solicitor/client costs, is that the former order provides a complete indemnity for costs actually incurred, with no enquiry as to the reasonableness of the costs incurred whilst an order for solicitor/client costs requires an enquiry as to the reasonableness of the costs.

19. It is open to the Court to make a costs order on the basis of party/party costs, solicitor/client costs or indemnity costs.

20. I am satisfied given the nature of the proceedings that an order that the husband pay the wife’s costs on a solicitor/client basis is appropriate.  The wife has had to issue two separate applications and have lawyers represent her at two hearings in order to secure the husband’s compliance with the Final Orders.  The husband in his affidavit acknowledges his non-compliance with those orders.  Nonetheless, it has been necessary for the wife to issue a further application in order to address the husband’s breaches of those orders.  In my view, such circumstance justifies an order that the husband pay the wife’s costs on a solicitor/client basis.

21. Accordingly, I will order that the husband pay the wife’s costs of and incidental to her Applications in a Case filed 19 April 2018 and 20 July 2018 as agreed and failing agreement, as assessed on a solicitor/client basis, such sum to be paid from the proceeds for sale of the F Street property. 

22. In his Response to Application in a Case filed 7 May 2018 the husband also sought interim parenting orders and orders in relation to child support.  Final parenting orders were made by consent on 9 June 2017.  In circumstances where the husband has elected to absent himself from the proceedings and presented no submission in support of that application, I propose to dismiss the husband’s Response to Application in a Case.

23. Accordingly, the orders I make, subject to submission as to form, are as above.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 14 September 2018

Associate: 

Date:  14 September 2018