Oxley and Oxley

[2011] FamCA 1035

FAMILY COURT OF AUSTRALIA

OXLEY & OXLEY [2011] FamCA 1035

FAMILY LAW – COSTS – Husband’s application for costs or indemnity costs – where orders made by consent in substantive proceedings – where Wife’s position under consent orders worse than under Husband’s original offer – purpose of costs order is not to punish – where consent orders deal in part with consequences of Wife’s unilateral removal of superannuation funds – improper to then impose costs order – s 117(2A) factors considered – costs application refused

Family Law Act 1975 (Cth), ss 117(1), 117(2), 117(2A)

APPLICANT: Mr Oxley

RESPONDENT: Ms Oxley

FILE NUMBER: CAC 509 of 2011

DATE DELIVERED: 2 September 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 2 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dixon SC

SOLICITOR FOR THE APPLICANT: Farrar, Gesini & Dunn

COUNSEL FOR THE RESPONDENT: Mr Tregilgas

SOLICITOR FOR THE RESPONDENT: Stuart Beal Solicitors

Orders

1. The husband’s application for costs and for indemnity costs is refused.

IT IS NOTED that publication of this judgment under the pseudonym Oxley & Oxley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 509 of 2011

Mr Oxley

Applicant

And

Ms Oxley

Respondent

REASONS FOR JUDGMENT

1. In this matter, I am asked to make an order for costs, either indemnity or otherwise, in relation to the proceedings before the Court relating to the wife’s unilateral act in removing money from the parties’ superannuation fund, contrary to her duties as a director, contrary to her duties as trustee and applying the money to her own use and benefit by putting them into another account.

2. The matter has been the subject of extensive material filed on behalf of each of the parties in which all of the various consequences have been long rehearsed. 

3. The parties have been fortunate today, with the assistance of their counsel, in being able to reach agreement on orders to be made by consent which, after reciting the matters to which I have just referred, agree upon comprehensive (and, as I suggested previously during submissions from Mr Dixon) ingenious arrangements which provide for the repayment of the sum; for the allocation of the consequences of the wife’s removal of the funds; for the finalisation of various interim applications, including the application by the wife for interim spouse maintenance and some payment by way of advanced costs or a Barro Order.  (The precise nature of that application was not entirely clear to me.)

4. That brings about a situation which, as has been referred to in the correspondence mentioned before me in submissions today, accords with a position somewhat less than that originally offered by the husband to resolve the proceedings.  It is less than the amount that he maintains she is entitled to.  At the end of these proceedings, there have been a lot of legal fees involved and a lot of other fees incurred. 

5. The question remains: where are the parties as a result of the arrangement they have now entered into, other than to the immediate detriment to the wife as a result of the penalty she will pay in terms of the orders and the costs that have been incurred by each of the parties in relation to these proceedings.

6. It would have been far more sensible for the wife to have entered into an arrangement of the sort that was agreed today back in May before she took the money from the parties’ superannuation fund.  Her taking the money was not only foolish but obviously contrary to her duties and has provoked a lot of pain and lot of time and a lot of energy and a lot of money.  

7. However, the purpose of costs orders is not to punish people who are guilty of acts which are perhaps inadvisable.  In these circumstances, I am left with a situation where I have been asked to make orders by consent, which purportedly take into account the fact that the wife has carried out the actions referred to - nominated and set out in quite great detail (and clearly acknowledged by the wife, which surprised me when I saw it) the extent of her inappropriate actions and the consequences of them.

8. The consequences were in part dealt with by the minutes of consent Orders and in the ordinary course of events, I do not believe I can properly go behind the terms of consent Orders to then impose an Order for costs.  This is so particularly as I drew the attention of the parties to the fact that this might be a consequence when the matter was raised with me earlier this day.  I have looked at the provisions of s 117 and I agree with Mr Dixon of senior counsel in his submission that s 117(1) does not override the provisions of s 117(2).  

9. I accept that in the circumstances which justify it, taking into account matters under s 117(2A), I could properly make an order as to costs, which could include an order by way of indemnity costs if considered to be appropriate.

10. In this matter, as is apparent, the financial circumstances of each of the parties are not matters which is relevant to my consideration. 

11. Neither party is in receipt of legal aid. 

12. The conduct of the parties to the proceedings, on the wife’s case, the conduct in removing the fund was not conduct in relation to the proceedings. 

13. Each of the parties subsequently had an opportunity to resolve the matter and chose, for whatever reason, not to do so.  Each of the parties instituted proceedings before me seeking the return of money and other matters.  Those are factors which can be weighed generally in the overall consideration of the question of costs at the end of the proceedings.  It is not appropriate to make an Order at this point.

14. The proceedings were not necessitated by the failure of the wife to comply with the previous orders of the Court and while I would be tempted to say that the wife has been unsuccessful in her part of the proceedings, it was not she who instituted the proceedings, and the husband in the end has, quite correctly in my opinion, cooperated and properly so in the arrangements that are set out in the minutes of consent Orders. 

15. There are no offers in writing which are relevant to my determination and there are no other matters that I consider to be relevant.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 2 September 2011.

Associate:

Date:  31 January 2012