Oliver and Oliver

[2018] FamCA 206

FAMILY COURT OF AUSTRALIA

OLIVER & OLIVER [2018] FamCA 206

FAMILY LAW – PROCEDURAL ORDERS – Costs – husband given an opportunity to provide written submission.

Family Law Act 1975 (Cth)

APPLICANT: Ms Oliver

RESPONDENT: Mr Oliver

FILE NUMBER: MLC 3139 of 2017

DATE DELIVERED: 16 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swan

SOLICITOR FOR THE APPLICANT: RNG Lawyers

THE RESPONDENT: No appearance

Orders

BY CONSENT IT IS ORDERED THAT

1. That the Husband do all acts and sign all such documents as may be required to transfer to the Wife at the expense of the Wife all of his interest in the real property known as B Street, Suburb C being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the home”) on or before 27 March 2018 (‘the date”).

2. That the Husband shall vacate the home on or before the date and thereafter the wife have the sole right to occupy the home to the exclusion of the Husband.

3. That contemporaneously with the transfer of the home provided for in order 1:

(a)the Wife do all such acts and things and sign all such documents and pay all monies as may be required to refinance D Bank loans … and … secured by mortgage … on the home and she otherwise indemnify the Husband against any liability pursuant to the mortgage and all rates, taxes and outgoings of or with respect to the home of whatsoever nature and kind;

(b)the Wife pay to the Husband the sum of $75,000 (“the payment”).

1. That the Wife forthwith do all such acts and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her interest in the following:

4.1The real property known as E Street, E Town being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the E Town property”);

4.2The parties’ shareholdings with CommSec in account …97;

4.3Her shares in the company F Pty Ltd ACN …;

4.4Utility motor vehicle registration number …;

4.5Motor vehicle 11 registration number …;

4.6Trailer registration number …; and

4.7metal boat registration number ….

1. That the Husband be liable for and indemnify the Wife against all payments in respect to:

5.1The mortgage to the Commonwealth Bank of Australia registered number … secured over the E Town property (if any);

5.2All rates and like apportional outgoings of the E Town property;

5.3All actions, claims, suits and demands as may be made against the Wife in relation to any liability including any taxes, fines or penalties in respect of the company F Pty Ltd, the Oliver Trust, the business “E Town Pty Ltd” or the property at E Street, E Town.

1. The Wife is the sole owner and the Husband relinquishes any interest in:

6.1       The Wife’s 4WD registration number ...;

6.2       The furniture and contents in the home;

6.3       Funds held in the Wife’s name in any bank account;

6.4       The Wife’s superannuation held in G Superannuation and Insurance Fund.

1. The Husband is the sole owner and the Wife relinquishes any interest in:

7.1The shipping container tools including hoist, welders, and compressor located at B Street, Suburb C and H Street, J Town.

7.2Motor vehicle 1;

7.3Motor vehicle 2 (shell only);

7.4Motor vehicle 3;

7.5Motor vehicle 4;

7.6Motor vehicle 5;

7.7Motor vehicle 6;

7.8Motor vehicle 7 (semi restored);

7.9Motor vehicle 8;

7.10Motor vehicle 9;

7.11Motor vehicle 10;

7.12Tractor;

7.134 metre boat;

7.14Ride on mower 1;

7.15 Ride on mower 2;

7.16Car trailer;

7.17Mover trailer;

7.18     Funds standing to the credit of the Husband in any bank account;

7.19The Husband’s superannuation held with G Superannuation and Insurance Fund.

1. That in the event that the Wife defaults in her obligations under order 3 herein, then the home be sold and the proceeds from the sale be distributed as follows:

(a)first, to pay all costs, commissions and expenses of the sale;

(b)secondly, to discharge the mortgage and any other encumbrance affecting the home;

(c)thirdly, the payment plus interest calculated from the date at the rate prescribed by the Family Court Rules to the Husband;

(d)fourthly, the balance to the Wife.

1. That the Wife’s Application filed 3 April 2017 and the Husband’s Response filed 17 October 2017 be dismissed.

ORDERS OF THE COURT

1. That the wife have liberty to apply in relation to the alteration of the settlement date in the event of any dispute.

2. That the reasons this day be transcribed.

3. That the wife’s costs of the day are fixed in the sum om $1939 and reserved as set out next.

4. If the husband does not file a written submission by 4.00pm on 22 March 2018 as to why the fixed costs ought not be paid by him and, failing a satisfactory explanation which shall be determined in chambers, the husband is otherwise ordered to pay those fixed costs.  If he files a response, the matter shall be determined in chambers.

5. That the wife’s solicitor advise the husband by email of this order.

6. That any costs so ordered shall be adjusted against paragraph 3 of the minutes of orders made this day..

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 Oliver & Oliver 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 3139 of 2017

Ms Oliver

Applicant

And

Ms Oliver

Respondent

REASONS FOR JUDGMENT

1. This morning is the return date of an application that was filed by Ms Oliver, to whom I shall refer in these reasons as “the wife”.  The respondent to those proceedings is Mr Oliver, to whom I shall refer as “the husband”. 

2. This application began with an application for final orders filed on 3 April 2017.  It has wandered through the Court system over almost the last 12 months.  A cursory examination of the various attendances would show that, at times, the husband, was present and represented by lawyers.  At other times, he did not participate. 

3. As a result of all of that, Registrar Sudholz, on 2 February 2018, transferred the matter to the judicial duty list on 13 March.  On that day, the husband attended without legal representation. 

4. As a result of discussion, the parties compromised their property dispute and came up with a set of orders.  I was reluctant to make the orders on that day because I was not at all comfortable about the language that the husband was using and, in particular, he had not had legal advice about whether it was prudent to enter into those arrangements.  With everybody’s agreement, I adjourned the matter to today to enable him to get legal advice and he said he could do that from solicitors who had previously acted for him.

5. The substance of the conversation that day was very clear.  The adjourned date was only three days away.  The husband made it clear that he could get the legal advice in the interim.  It was put to the husband in open Court by counsel for the wife, that if he did not confirm agreement in writing by Thursday afternoon, the wife and her counsel would have to attend on the Friday morning to pursue the matter and, indeed, if that occurred, the wife would seek her costs thrown away.  I discussed that with the husband in open Court and he agreed that he would attend to the matter quite comfortably. 

6. This morning, it now being 20 minutes to 10 am, there has been no appearance of the husband.  An email has been handed to me which shows that yesterday, Thursday, 15 March at 11.37 am, the husband received from his solicitor, an explanation as to the orders.  For my part, this document would hardly be advice.  It is in dot point summary of the orders.  That was not the reason I adjourned the proceedings but, in any event, that is a matter between the husband and his lawyers. 

7. What then followed was that at 8.33 pm on Thursday night, the husband sent to my associate confirmation that he had received legal advice and that he accepted the terms of agreement made between he and the wife as binding.  Those were his words.  There is no explanation as why it took him all of that time to write to the court.  But, more importantly, my understanding was that it was not so much advising the court, but advising the solicitors for the wife, that he accepted the terms of the agreement based on legal advice, because they would then not have to attend.  The email was not sent to the wife’s solicitor confirming he had had legal advice and/or confirmation of accepting the agreement as binding. 

8. Therein lies the dilemma.  The husband had been warned that if he did not advise the solicitors for the wife by close of business on the Thursday night, they would have no choice but to attend court today because, otherwise, they would not have obtained the orders that had been their understanding of the agreement.  That has now activated the application for costs thrown away today. 

9. The amount of counsel’s brief is marked at $2200.  But, as she concedes, the scale would only permit, at the top end of it, the sum of $1939.  I am not addressed, nor do I think I could be addressed, on the question of indemnity costs here.  To the extent that this is an application for costs, it could only be for $1939.  This also shows that the wife has been not only inconvenienced by having come here today but, also, having to pay costs to her lawyers as a result of a problem created by the husband.  The application, therefore, is that I make an order for costs thrown away for the day. 

10. One of the dilemmas is that I do not know whether the husband would oppose such an order being made notwithstanding he was put on notice.  I can solve that problem by giving him until next Friday, by written submission, and I stress written submission, rather than by oral presentation – to indicate why he ought not pay the costs that I propose to fix.  If I obtain that written submission and am satisfied that there is no satisfactory explanation that will need to address the reasons why he did not respond to the request to provide the solicitors but, also, in any event, why he only notified the Court at 8.33 pm, having received the advice at 11.37 am, then as ought be sensibly understood, the costs order would be made. 

11. One of the problems in this case is that the orders that I now propose to make mean that the wife has to pay the husband $75,000.  If I make an order for costs in due course, the appropriate way to deal with that dilemma is that the quantum of what she has to pay him will be reduced. 

12. Section 117 of the Act provides that in proceedings under the Act, each party shall pay their own costs unless there are circumstances that justify a departure from that principle.  The circumstances here that justify that principle are, clearly, that the husband was on notice about a costs application if the wife had to attend with counsel today.  In addition, he did not notify the solicitors in any event, even if he inappropriately notified the court at 8.33 pm last night, having received the advice that he did yesterday morning. 

13. In those circumstances, there is a justification to depart from the principle.  The court must, however, consider the matters set out in section 117(2)(a) of the Act.  And those matters include the financial circumstances of the parties, whether there is Legal Aid considerations, compliance with court orders and the like.  Having considered all of those matters, I could not find that there are any Legal Aid considerations here and each of the parties has property, albeit of some limited value.  Neither of these parties could be seen to be impecunious. 

14. The conduct of the parties relates to the way in which they deal with the court and each other in relation to the proceedings.  What I was endeavouring to do earlier in the week was to make it simpler and cheaper for the parties.  For reasons that remain unexplained, the husband has not assisted. 

15. Under those circumstances, it is appropriate that I fix the costs.  I will only do so on the basis of the scale figure of $1939.  I will give the husband an opportunity to respond to that application in the form of a written submission, which has to be received by the Court by no later than 4 pm on 22 March 2018.  In the event that his explanation is not received or it is not a satisfactory explanation, then I shall make the order for costs in chambers, including an order that the quantum of the property settlement be appropriately adjusted.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 March 2018.

Associate: 

Date:  5 April 2018