Ogilvie & Ogilvie

FAMILY COURT OF AUSTRALIA

OGILVIE & OGILVIE AND ORS

[2012] FamCA 519

FAMILY LAW - ORDERS – Contravention

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

APPLICANT:

Ms S Ogilvie

RESPONDENT:

Mr I Ogilvie

SECOND RESPONDENT:

Mr H Ogilvie

THIRD RESPONDENT:	Ms M Ogilvie
FOURTH RESPONDENT:	Mr A Ogilvie
FIFTH RESPONDENT:	Ms U Ogilvie

FILE NUMBER:

MLC

1184

2012

DATE DELIVERED:

29 May 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

29 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cantwell

SOLICITOR FOR THE APPLICANT:

John Finlayson Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Hession

SOLICITOR FOR THE RESPONDENT:

Amicus Lawyers

COUNSEL FOR THE SECOND TO FIFTH RESPONDENTS:

Ms Elliott

SOLICITOR FOR THE SECOND TO FIFTH RESPONDENTS:

Elliott Stafford &
Associates

IT IS ORDERED THAT

All applications be adjourned to the Judicial Duty List at 10:00am on 31 July 2012.
On or before 29 June 2012 the husband file and serve the following documents:
(a)statement of claim setting out the precise nature of the husband’s claim or claims against the respondents including but not limited to:-
(i)the basis of such claim or claims and whether they are made pursuant to accrued jurisdiction, s78, s79 and/or Part VIIIAA of the Family Law Act or otherwise;
(ii)the precise legal basis and nature of the claim or claims and the relief at least sought in respect of each such claim or claims (such as constructive trusts, expressed trusts etc); and
(iii)the propositions of law and fact asserted by the husband in respect of each such claim or claims and sufficient particulars to enable the wife and respondents to identify what the husband alleges against the wife and/or the respondents including the issues to be determined in respect of each such claim.
(b)Affidavits setting out the factual evidence upon which the husband relies in support of the contentions, pleadings and particulars contained in the statement of claim AND IT IS NOTED if the respondent husband seeks to rely on the material contained in the affidavits upon which he has already filed he should notify the other parties in writing accordingly.
The second, third, fourth, and fifth respondents file and serve a response and any affidavits upon which they seek to rely in relation to the claims on or before 12.00 noon on 20 July 2012 and that response contains a statement of defence in respect of each and every claim contained in the husband’s statement of claim.
The applicant wife shall file and serve any reply to the material contained in the statement of claim and file any further affidavit evidence upon which she seeks to rely on or before 12.00 noon on 20 July 2012.
Within 48 hours of the date of this order the wife’s solicitors provide to the husband’s solicitors in writing the names of all accounting firms who have conducted the business and taxation affiars of the family partnership H & M & S & I & U & A Ogilvie.
The husband and the wife provide full and frank disclosure of all information relevant to this matter pursuant to Rule 13.01 of the Family Law Rules 2004 by 20 July 2012.
Within 14 days, the aplicant wife provide full and frank disclosure regarding her involvement in the family partnership ABN …, including but not limited to:
a.a copy of the partnership deed;
b.a copy of any business names registered to this ABN;
c.a copy of all profit and loss statements, bank records and employee records; and
d.tax returns for the partners in the business for the last years prior to the sale.
The husband and the wife exchange market apprasials of the following properties within 28 days:
a.… Property 1, C Street, Suburb B;
b.… D Street, Suburb B;
c.… W Street, Melbourne Suburb L;
d.… P Street, Suburb B; and
e.Apartment 1, O Street, Gold Coast Suburb G, Queensland.
In the event that the husband fails to comply with order 2 herein, the husband shall immediately withdraw the caveats registered on the following properties:
a.Property 1, N Street, Suburb E Volume … Folio …;
b.Property 2, N Street, Suburb E Volume … Folio …;
c.F Street, Suburb B Volume … Folio …;
d.Property 2, C Street, Suburb B Volume … Folio …;
e.Property 3, C Street, Suburb B Volume … Folio …; and
f.J Street, Suburb K Volume … Folio …
and thereafter the second to fifth respondents be excused from participating in these proceedings.

BY CONSENT IT IS ORDERED THAT

The material produced by the Commonwealth Bank pursuant to the subpoena issued by the husband on 2 May 2012 be released to the legal practitioners only for inspection and copying.
The solicitor for the husband shall advise the solicitor for the second to fifth respondents in writing within 7 days of the date of these orders as to which of the accounts he intends to rely upon, including the dates of the particular statements relied upon.

IT IS FURTHER ORDERED THAT

The husband pay the wife’s costs of this day fixed in the sum of $2560, such sum to be paid out of the husband’s entitlement to property settlement upon the conclusion of these proceedings.
The husband pay the costs of the second to fifth respondents fixed in the sum of $1500 such sum to be paid out of the husband’s entitlement to property settlement upon the conclusion of these proceedings.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ogilvie & Ogilvie and Ors 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 1184 of 2012

Ms S Ogilvie

Applicant

And

Mr I Ogilvie

Respondent

REASONS FOR JUDGMENT

I have before me today the wife’s initiating application filed in the Federal Magistrates’ Court on 14 February 2012. The wife sought final orders for a property settlement in general terms and interim orders, including an order for sole use of the property at Property 1, C Street, Suburb B. The matter was transferred to this Court on 5 March 2012. On 16 March 2012, the husband filed a response to the initiating application in which he sought to join the second to fifth named respondents, sole use and occupation of Property 1, C Street, Suburb B, various injunctions against the wife and the second to fifth named respondents, and a lump sum payment of $100,000 by the wife and/or the other respondents.
When the matter came on for hearing before Benjamin J on 27 March 2012 he made orders, by consent, which provided for the wife to have sole use and occupation of Property 1, C Street, Suburb B, and for the husband to have sole use and occupation of the property at P Street, Suburb B, which essentially concluded the interim issues from the wife’s perspective. He further ordered, not by consent as follows:
8. On or before 12.00 noon on 28 April 2012 the husband file and serve the following documents:-
(a) a statement of claim setting out the precise nature of the husband’s claim or claims against the respondents including but not limited to:-
(i) the basis of such claim or claims and whether they are made pursuant to accrued jurisdiction, s78, s79 and/or Part VIIIAA of the Family Law Act or otherwise;
(ii) the precise legal basis and nature of the claim or claims and the relief at least sought in respect of each such claim or claims (such as constructive trusts, expressed trusts etc); and
(iii) the propositions of law and fact asserted by the husband in respect of each such claim or claims and sufficient particulars to enable the wife and respondents to identify what the husband alleges against the wife and/or the respondents including the issues to be determined in respect of each such claim.
(b) Affidavits setting out the factual evidence upon which the husband relied in support of the contentions, pleadings and particulars contained in the statement of claim AND IT IS NOTED if the respondent husband seeks to rely on the material contained in the affidavits upon which he has already filed he should notify the other parties in writing accordingly.
9. The second, third, fourth, and fifth respondents file and serve a response and any affidavits upon which they seek to rely in relation to the claims on or before 12.00 noon on 22 May 2012 and that response contains a statement of defence in respect of each and every claim contained in the husband’s statement of claim.
10.The applicant wife shall file and serve any reply to the material contained in the statement of claim and file any further affidavit evidence upon which she seeks to rely on or before 12.00 noon on 22 May 2012.
The husband has not complied with those orders and before me today he seeks an adjournment of at least one month to enable him to comply with Benjamin J’s orders. On 30 April 2012, the wife’s solicitor was advised by the husband’s solicitor that he had had some issues finalising the husband’s documents but that the statement of claim and husband’s affidavit would be filed the following morning. That did not happen and on 7 May 2012, as a result of the husband’s failure to comply with the order, the wife filed a contravention application which is also returnable today.
On 9 May, the husband’s solicitor attempted to fax a letter to the wife’s solicitors enclosing copies of three subpoenas which were issued on 2 May 2012, returnable on 11 May 2012, and advising as follows:
Furthermore, I refer to the orders made by Benjamin J regarding the filing and service of a statement of claim against the other respondents. I note we have been unable to do so in time and will be seeking an extension on the next occasion. We will not be pressing our interim applications at this stage, either for injunctive relief or for litigation funding. Please advise whether you agree to an adjournment of the matter by consent, with a new timetable, by way of proposed minutes of orders agreed by the parties.
It is common ground that the wife’s solicitor did not receive the letter and on 18 May 2012, a further letter was forwarded to the wife’s solicitor by the husband’s solicitor by email, in which he advised that he would be issuing an application in a case seeking an adjournment in chambers of the next court date shortly. It is agreed, firstly, that there was no response received to the husband’s email and secondly, that he did not make the foreshadowed application. I am urged by both counsel for the husband and the wife, subject to a new timetable for the filing of documents, to progress this matter as expeditiously as possible in all the circumstances.
Ms Elliott, on behalf of the second to the fifth respondents, expressed what are in all of the circumstances legitimate concerns about what she would say is the unnecessary involvement of the second to fifth respondents in these proceedings. It was submitted that they are bound by caveats which are based upon them being a party to these proceedings and documents are being sought, pursuant to subpoena, which are documents relevant to them alone. Mr Cantwell, taking a pragmatic view and subject to an application for costs, does not seek to proceed with his application for contravention today and I note, in that regard, that the husband is not in attendance today.
It was put to my by the husband’s counsel that he was unwell. However, I am also told by Ms Elliott that inquiries have been made of his place of employment and in fact he is at work today. Clearly, I can’t make any findings of fact in relation to that matter. However, I do take into account the fact that the pragmatic view taken by Mr Cantwell may have something to do with the fact that the husband is actually not in attendance today. The husband’s case is that it turned out that the case itself is more complicated than initially anticipated and I am told that his solicitor has had difficulty obtaining instructions and obtaining the necessary information to prepare the statement of claim and the husband’s affidavit.
I have been advised that counsel was instructed to draft the statements of claim but required further information in order to do so. This does not explain, to my satisfaction, why in late April the wife’s solicitor would have been advised that the documents were to be filed the following day. It was as a result of the request for further information, it was submitted on behalf of the husband that subpoenas were issued and notices to admit facts were filed. I note, with some concern, that the notices to admit facts have been served upon both the second and third respondent at a time when it is not clear what, if any, part they are to play in these proceedings.
I also note that there was no appearance on the first and second return dates of the subpoenas issued on behalf of the husband. It was submitted that on 11 May 2012, the husband’s solicitor was late and that on 22 May 2012, the husband’s solicitor decided that it would be appropriate to wait for today’s hearing, rather than attend and seek the release of the documents. I have been provided with a minute of proposed orders by counsel for the husband. Although it is superficially attractive, in light of the husband’s failure to comply with the orders made 27 March 2012, to release the second to fifth respondents from further participation in the proceedings I am satisfied that it would be more appropriate to adopt the course suggested by counsel for the husband, that is, to adjourn the matter to my duty list in July to give the husband a further period of one month in which to file the documents he is required to file pursuant to the orders made by Benjamin J and in the event that he fails to do so to then to release the second to fifth respondents from any further appearance in the matter.
To release them from a further appearance today would be likely, in the event that the husband did file the statements of claim, to require a further adjournment of the matter which, if possible, I wish to avoid. In those circumstances I am proposing to make orders in terms of the minute of proposed orders that was provided to me by counsel for the husband, to adjourn the matter and list it for interim hearing in the Judicial Duty List before me at 10 am on 31 July, and on or before 29 June for the husband to file the documents outlined in paragraph 2.
I also have before me an application for costs by both the wife and the second to fifth respondents. The wife seeks her costs fixed in the sum of $2,560. It is submitted on behalf of the wife that those costs can be paid out of the husband’s property settlement entitlement at the conclusion of the proceedings. The second to fifth respondents seeks costs thrown away in the sum of $1500.
The general rule is that each party to proceedings in this court shall bear his or her own costs. That general rule is subject to section 117(2) of the Family Law Act 1975 (Cth) which provides that if the court is of the opinion that there are circumstances that justify it in doing so the court may make such order as to costs as it considers just. Section 117(2)(a) sets out the factors the court must have regard to, insofar as they are relevant, in determining what if any order should be made for costs. The weight to be given to these factors is a matter for the court in each case.
In this case neither party is in receipt of a large income although it is also clear that the wife has the three youngest children living with her including two who are still at school age and although the husband has been assessed to pay child support of $67 per week the wife has as yet not received any child support from the husband. Neither party is in receipt of Legal Aid.
It is submitted on behalf of the husband that the wife and the second to fifth respondents were on notice as to the proposed adjournment, however that notice consists of a letter of 9 May 2012 which was clearly not received, and an email of 18 May 2012 which advised that the husband was proposing to make an application seeking an adjournment which he did not make. There is little by way of explanation as to why the husband has not filed the material he was required to file pursuant to the orders made 27 March 2012 and his explanation for not complying is far from satisfactory.
That failure to comply with those orders led to the issue of the contravention application which is returnable today. The conduct of these proceedings by the husband has resulted in the wife and the second to fifth respondents incurring the costs of the hearing today and the necessity for a further hearing. No submissions have been made on behalf of the husband as to the quantum of the costs that is sought by either the wife or the second to fifth respondents and in all of the circumstances I propose to accede to the application of the wife and the third parties for the costs thrown away today.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 29 May 2012.

Associate:

Date: 9 July 2012

[2012] FamCA 519

29 May 2012

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Remedies