Pastern and Pastern

FAMILY COURT OF AUSTRALIA

PASTERN & PASTERN

[2008] FamCA 560

FAMILY LAW - PROPERTY - Settlement in relation to marriage
FAMILY LAW - COSTS - Jurisdiction and generally
FAMILY LAW - SELF REPRESENTED LITIGANTS

Family Law Act 1975 (Cth)

Fitzgerald v Fish (2005) 33 Fam LR 123

APPLICANT:

MR PASTERN

RESPONDENT:

MS PASTERN

FILE NUMBER:

NCF

1371

2001

DATE DELIVERED:

22 July 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

21 July 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Mr Gary Fox
SOLICITOR FOR THE RESPONDENT:	Ms Pastern in person

Orders

The Wife do all acts and things to cause to be delivered to the Husband at W in the State of New South Wales at the Husband’s cost, the following items:
1.1the secretaire;
1.2the […] photographic print; and
1.3the set of fire tools.
The application by the Husband for costs be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF 1371 of 2001

MR PASTERN

Applicant

And

MS PASTERN

Respondent

REASONS FOR JUDGMENT

Before me for hearing are applications in relation to items of personalty including items of furniture and furnishing. The Applicant is Mr Pastern who I shall refer to as the Husband. The Respondent is Ms Pastern who I shall refer to as the Wife.
On 23 January 2007 an Application in a Case was filed on behalf of the Husband in which he seeks the following:
1 That the wife pay the husband’s costs of and incidental to the wife’s Form 2 Application in a Case filed on 23 June 2006, such costs to be agreed or as assessed.
2 That the wife be ordered to be caused to be delivered to the husband at [W] in the State of New South Wales at the wife’s cost, the following items:
2.1the secretaire;
2.2antique desk;
2.3a collection of [relevant] professional books and journals including reference books;
2.4[…] photographic print;
2.5 Set of fire tools.
On 15 July 2008 a Response to an Application in a Case was filed on behalf of the Wife and she seeks that the application by the Husband be dismissed. However, it will be seen shortly that the Wife in fact seeks other orders.
The Husband relied upon affidavits he swore on 25 March and 30 April 2008. The Wife relied upon two affidavits she swore on 4 April 2008 and an affidavit of 10 July 2008. I also had the benefit of written submissions on behalf of the Husband.
The Wife appeared before me without legal representation and the Husband was represented by his solicitor.
The hearing before me proceeded in a truncated way in that neither party was cross-examined. I was concerned, given the extent history of proceedings and the nature and extent of the issues that the hearing be conducted in as summary a way as possible.

BACKGROUND

On 28 June 2005 pursuant to s 79 of the Family Law Act1975 (Cth) I made the following property settlement order:
1. By way of alteration of interests in property pursuant to Section 79 of the Family Law Act 1975 (Cth) order that:
1.1By 4 pm on 24 August 2005 the wife sign all deeds, documents, instruments and writings and do all acts and things necessary to transfer and assign to the husband the whole of her right title and interest in:
1.1.1the issued share capital of [X] Pty Ltd ACN […];
1.1.2any loan account that she has with [X] Pty Ltd and/or the [Pastern] Family Trust
And further the wife sign all deeds, documents, instruments and writings and do all acts and things necessary to resign from any office that she holds in [X] Pty Ltd save that prior to resigning and transferring shares she shall if requested in writing to do so by the husband attend a meeting of the company and vote in favor of any resolution proposed by him that has the effect of approving any proposed transfer of shares pursuant to this paragraph, the appointment of any new director that he may nominate or amending the constitution of the relevant company so as to permit the company to operate with a single director and shareholder.
1.2By 4 pm on 24 August 2005 the wife sign all deeds, documents, instruments and writings and do all acts and things necessary to transfer and assign to the husband all of her right title and interest in the home at [W] in New South Wales subject to the mortgage.
1.3By 4 pm on 24 August 2005 husband sign all deeds, documents, instruments and writings and do all acts and things necessary to transfer and assign to the wife all of his right title and interest in each of:
1.3.1The rural property known as “[B]” at C in New South Wales unencumbered.
1.3.2The assets of the [business] partnership of the husband and the wife styled “[Y & Z]” including all livestock and plant and equipment.
1.4By 4 pm on 24 August 2005 the husband pay to the wife, or as she shall direct in writing the sum of $550,000 and in the event that he should fail, neglect or refuse to do so then interest shall accrue thereafter on such part as remains outstanding until paid in full, such interest to be calculated at such rate as may be from time to time prescribed pursuant to the Family Law Rules.
1.5All orders for spousal maintenance be discharged upon compliance by the husband with paragraph 1.4 hereof.
1.6By 4 pm on 24 August 2005 the husband pay all moneys, sign all deeds, documents, instruments and writings and do all acts and things as may be required by the Commonwealth Bank in order to secure a release in writing from the Commonwealth Bank for all obligations of the wife pursuant to the mortgage secured on [W residence], the farm loan secured on “[B]” and all secured and unsecured liabilities of the husband and or the wife, [X] Pty Ltd and the [Pastern] Family Trust and all guarantee(s) that she has granted for such liabilities and for the avoidance of doubt, the delivery of a letter to the solicitors for the wife from the Commonwealth Bank expressed in unconditional terms as to such release shall be sufficient compliance with this obligation; and in the event that the husband fails, neglects or refuses to obtain such release by the date stated, then on or before the date stated the husband pay all such moneys as may be necessary to discharge or refinance such liabilities.
1.7The husband henceforth pay all moneys, sign all deeds, documents, instruments and writings and do all acts and things as may be necessary to indemnify and keep indemnified the wife against all claims, actions, suits or demands that may be made against the wife in respect of or in relation to the liabilities in paragraph 1.6.
1.8The [business] partnership of the husband and the wife styled “Y & Z” be dissolved as and from 30 June 2005.
1.9The husband henceforth pay all moneys, sign all deeds, documents, instruments and writings and do all acts and things as may be necessary to indemnify and keep indemnified the wife in respect of all claims, actions, suits or demands that may be made against her by or on behalf of any of [Y & Z] Pty Ltd, the [Pastern] Family Trust, the [Pastern] Superannuation Fund, the [S business] partnership and the [V] trust including but not limited to her allegedly being indebted to any of them pursuant to a loan account or on any other account whatsoever other than any specific obligation arising pursuant to this order.
1.10The wife henceforth pay all moneys, sign all deeds, documents, instruments and writings and do all acts and things as may be necessary to indemnify and keep indemnified the husband in respect of any claims, actions, suits or demands that may be made against him by or on behalf of the grazing partnership of the husband and the wife in respect of his allegedly being indebted to the partnership pursuant to a loan account or on any other account whatsoever other than any specific obligation arising pursuant to this order.
1.11The husband henceforth pay all moneys, sign all deeds, documents, instruments and writings and do all acts and things as may be necessary to indemnify and keep indemnified the wife in respect of any claims, actions, suits or demands that may be made against the wife by any person, corporation or entity arising by reason of her having been a shareholder and/or officer of [Y & Z] Pty Ltd and/or a beneficiary of the [Pastern] Family Trust and/or a member of the [Pastern] Superannuation Fund and/or by reason of her having guaranteed the payment of any moneys or the performance of any duties by or on behalf of any of [Y & Z] Pty Ltd and the [Pastern] Family Trust and the [Pastern] Superannuation Fund.
1.12The husband pay all monies, sign all deeds, documents, instruments and writings and do all acts and things necessary to indemnify and keep indemnified the wife in relation to any liability for income tax assessed for all financial years up to and including the year ended 30 June 2005 for the partnership of the husband and the wife and [X] Pty Limited and the [Pastern] Family Trust and the [Pastern] Superannuation Fund or for any liability for personal income tax for income received from any of the said entities for any financial year up to and including the financial year ended 30 June 2005.
1.13Other than any action taken by the wife to ensure compliance with this order the wife is permanently restrained from doing any act or thing to make any claim whether at law or equity against such person or entity as may from time to time hold the office of trustee of the [Pastern] Family Trust or otherwise against such trust claiming any entitlement, right, power, interest or debt arising in any manner whatsoever arising from her having been a beneficiary.
1.14Subject to the foregoing provisions of this order each of the husband and the wife is as against the other declared the sole owner of all items of property in their respective names, possession or control as at the date of this order.
1.15The parties be granted liberty to apply in relation to the implementation of this order.
1.16In the event that any party fails, refuses or neglects to execute any document or instrument required to give efficacy and effect to the provisions of these orders then a Registrar of the Court is hereby appointed pursuant to s 106A of the Act to sign such document in lieu of the defaulting party.
2.All applications for final orders be removed from the list of cases awaiting finalisation.
The hearing took place for nine days between 12 August 2004 and 28 April 2005. The Wife subsequently appealed to the Full Court of the Family Court against the order and the appeal was dismissed.
In paragraphs 286 to 289 of my judgment delivered on 28 June 2005 in relation to substantive property proceedings, I said:
286In the spreadsheet there was an amount of $16,620 contended for by the husband as the value of his furniture and an amount of $18,000 contended for by the wife. The husband relied upon a valuation of [Ms D] (Exhibit O).
287On behalf of the wife it was submitted that in addition to the furniture at [W] referred to in the valuation report of [Ms D], the husband will receive [specified items] located at [B] and that the items should be added to the total furniture as valued by [Ms D] and deducted from the value of the contents of [B].
288It was also submitted that [Ms D] was requested to value all of the furniture at [W] but declined to so as the husband’s current wife claimed ownership of a significant number of items which were far more extensive than those referred to in an affidavit of the husband. It was said that as these items were not valued there was no point in the wife calling evidence as to their ownership. Frankly, I am not sure what all of this means.
289I will include an amount of $16,620 for the husband’s furniture.
Thus by consent, the [specified items] are included as part of the Husband’s property
At paragraph 290 of my judgment, the antique desk is also included as part of the Husband’s property pool. I stated:
In the spreadsheet there was an antique desk of the husband which was said to have an agreed value of $2,500. I will assume that this was agreed as no submissions were made on behalf of either party. Thus I will include the item [in the valuation of the Husband’s furniture].
No specific reference was made in the judgment to the “[…] photographic print” or the professional journals of the Husband.
As to other items of personalty in my judgment I said:
291There was an issue about the value of the contents at [B]. The husband contended the value is $71,040 and the wife contended the value is $54,920. There was also an issue about missing items. This is another example of the problems with this case and the way in which it was conducted.
292On behalf of the wife it was submitted that she gave evidence as to the contents of [B] sold since the valuation of [Ms D] in 2001. As well, she gave evidence of items included in the valuation which are in fact the property of the parties’ son. It was also submitted that [Ms D] reduced the total value of the contents by reference to the depreciation in electrical items. In addition, the husband will receive the antique secretaire and the [specified items]. Further, a garden seat valued by [Ms D] at $120 was included in the valuation of plant and equipment by [Mr R].
293It was submitted that the wife gave evidence that the proceeds of sale of items sold were used to pay for living expenses and legal fees which are notionally included in the list of assets and that therefore the valuation of [Ms D] should be reduced by $13,400 to arrive at the figure of $57,000.
294It was also submitted that of the items valued by [Mr N] two are with the husband and four are with the wife and that [Mr N]’s valuation of the items with the wife, by reference to photographs, is subject to the same qualification recognised by [Ms D] as was his valuation of items, by reference to photographs, now retained by the husband. [Mr N] was required to attend for cross examination but did not give evidence. The wife wrote to the husband’s solicitors after receipt of Mr [Mr N]’s valuation pointing out errors in the description of various items. It was contended that the wife will admit to a total value of $2,680 for the items valued by Mr [Mr N], by reference to photographs that have been retained by her. It was contended that adopting those figures the total amount for her furniture should be $54,920. In her Financial Statement she admitted to furniture and contents of a value of $57,000.
295On behalf of the husband it was submitted that he relies upon a combination of the valuations of [Ms D] (Exhibit Q) and [Mr N] (Exhibit P). The wife gave evidence of items she either sold or gave away (Exhibit Y). It was submitted that regardless of whether the wife has sold or given away various items of furniture being part of the valuation of [Ms D] and regardless of how the wife expended the proceeds as the husband was not consulted either as to their sale or being gifted to other parties the reduction in value should be added back to the wife and there should be no reduction for the purpose of the determination of these proceedings in the identity and value of the contents as at the date of the valuation.
296I am not going to deal with this matter any further and I will adopt the figure of $54,920. I accept the submissions of the wife.
In paragraph 370 of my judgment, I identified the assets of the parties which included furniture of the Husband of a value of $16,620 and an antique desk of a value of $2,500.
In paragraph 408 of my judgment, I outlined the assets which would be received by the Husband, which included the furniture of the Husband of a value of $16,620 and the antique desk of a value of $2,500.
In paragraph 411 of my judgment I stated: “I will leave it to the parties to affect the handover of items of personalty such as the desk and fire dogs”.
On 23 June 2006, the Wife filed an Application in a Case for costs of and incidental to the proceedings concluded on 28 June 2005. In a judgment delivered on 4 December 2006, I dismissed the Wife’s application filed on 23 June 2006.
Subsequent to the making of these orders, in an application filed on 2 January 2007 the Husband sought that the Wife pay his costs of and incidental to the application for costs filed by the Wife on 23 June 2006. The orders sought by the Husband were as follows:
1. That the wife pay the husband’s costs of and incidental to the wife’s Form 2 Application in a Case filed on 23 June 2006, such costs to be agreed or as assessed.
2. That the wife be ordered to be caused to be delivered to the husband at [W] in the State of New South Wales at the wife’s cost, the following items:
2.1the secretaire;
2.2antique desk
2.3a collection of […] professional books and journals including reference books.
2.4[…] photographic print
2.5 [Other items]
In a judgment delivered on 9 August 2007, I ordered that the Wife pay the Husband’s costs of and incidental to the Wife’s Application in a Case for costs filed on 23 June 2006.
In my judgment, in ordering that the Wife pay the Husband’s costs in relation to the 23 June 2006 application, I made no reference to the Order 2 sought by the Husband in his application dated 2 January 2007, set out above.
In a letter addressed to my Associate, dated 23 November 2007, the solicitors acting on behalf of the Husband, referring to the judgment dated 9 August 2007, stated the following:
With all due respect to His Honour, it appears that he may have omitted to deal with that part of my client’s Application by which he sought orders relating to a number of chattels. An order in those terms was sought on my client’s behalf by way of paragraph 2 of the Application filed on 2 January 2007. [emphasis in the original]
This in turn relates back to my client’s Amended Application for final orders as to property settlement, and it was also referred to in paragraph 411 of His Honour’s reasons for judgment dated 28 June 2005 relating to substantive property settlement proceedings.
I would be grateful if you would bring this aspect to His Honour’s attention at your earliest possible convenience and then advice me accordingly.
It may be that it was His Honour’s intention to decline to make any order in respect of the chattels, although (again with all due respect to His Honour) this would appear unlikely in light of His Honour’s comments in paragraph 411 of the judgment dated 28 June 2005 where His Honour said “I will leave it to the parties to effect the handover of items of personalty such as the desk and the [other items].
So far as I am aware the chattels remain in the possession of the wife.
In a letter to my Associate dated 26 February 2008, further to the above letter, the solicitors acting on behalf of the Husband further stated:
At a costs assessment conference on 18 February 2008, the wife indicated that it was her intention to sell all of her property in Australia and relocate to New Zealand in the near future. Accordingly the content of my previous letter to you is now relatively urgent.
Would you please raise with His Honour the essential question posed in my previous letter, namely whether His Honour in fact intended to make no order in respect of the specified chattel or whether this was an “oversight”.
The matter was then listed for a case management hearing (by telephone) before me on 11 March 2008, and the following was ordered:
1.The Husband file and serve by 4 pm on 25 March 2008 an affidavit setting out his evidence in chief in relation to the orders he seeks in respect of five items of personalty.
2.The Wife file and serve by 4 pm on 8 April 2008 an affidavit setting out her evidence in chief in relation to the issues with respect of personalty.
3.The matter be listed before me at 10 am on 15 April 2008.

The matter was again listed for case management before me on 15 April and 6 May 2008.
In his affidavit of 25 March 2008 the Husband noted that there was a mistake in relation to the items of personalty set out in the application dated 2 January 2007, such that item 2.1, “the secretaire” and item 2.2, “antique desk” are in fact the same item.
In this affidavit the Husband described each item of personalty that was referred to in his application dated 2 January 2007. He stated that the antique desk referred to in 2.1 and 2.2 was an inheritance received from his father. He stated that the professional books referred to include about a dozen text books and several series of professional journals belonging to him. He stated that the photographic print was a gift to him. He described the other items as having been in his family for as long as he can remember and having been given to him and the Wife after they married. He also deposed that not mentioned in his application filed 2 January 2007 was a chest of mahogany drawers that had been situated at the premises in W, where he was residing after separation, which he seeks that the Wife return to him. He stated that at some time early in 2003, the Wife removed this chest of drawers from his home. The chest of drawers is no longer sought by the Husband.
In Annexure “A” to the Wife’s second affidavit of 4 April 2008 she provided a copy of a Response to an Application for Final Orders that was before me at the hearing of the applications for final orders. There was set out some thirteen items of personalty that the Wife sought (paras 3 (e) and (f) (iv), (vii), (viii), (ix), (x), (xii), (xiii), (xiv), (xv), (xvi), (xvii) and (xx)). The item the Wife particularly sought was in paragraph 3 (f)(xvii). The Wife submitted that there was no resistance, objections or any dispute raised at the trial to paragraph 3 of her Response, which set out the items that she sought be returned to her from the Husband “at the expense of the husband”.
In her first affidavit of 4 April 2008, the Wife noted that it was agreed by her, as revealed in the transcripts of the hearing on 20 August 2004, that the antique desk and the other items would be returned to the Husband and that in my judgment of 28 June 2005, I stated that it would be up to the parties to determine the handover of these items.
In relation to the items set out in the Husband’s affidavit dated 25 March 2008, the Wife states that she has:
no opposition, nor ever had, in returning the items, except for the items in paragraph 5, which he refers to as professional books and journals, which I do not have, nor do I have any recollection of, except they may have been in the many boxes which were stored at the farm [B] prior to separation, and which were removed some three months post separation along with many other items, from the house and sheds at [B], when I was absent for a number of days.
She deposed that these books and journals are a “new” request and that they were not mentioned or raised at the trial or requested on any “notice to produce”.
The Wife referred to a letter sent to the Husband’s solicitors, dated 13 November 2006 and attached as Annexure “B” to her affidavit, which she stated was not answered by the Husband. In this letter the Wife requested the parties exchange a “list” of goods they expected to receive and the reasons for their expectations. In this letter she also wrote the following:
I insist the exchange take place when I can employ help with lifting of furniture and when requirements are satisfied, such as particulars of exchange items and agreement to engage one only carrier.
In her affidavit, the Wife made reference to a further letter to the Husband’s solicitors, dated 19 March 2007 and attached as Annexure “C”. This letter referred to items that the Husband agreed to return but, the Wife claimed, had not been returned at that time, including frequent “air points”, sums of money and an air conditioner belonging to the Wife.
The Wife deposed that at the trial on 17 August 2004, the Husband agreed to transfer some 350,000 “air points” to the Wife. She annexed as Annexure “D” a copy of a letter from the Husband’s solicitors dated 16 March 2005, where they stated that the Husband was willing to give the Wife the benefit of some “air points” but suggested that since the points are not transferable, the bookings for air travel be made by the Husband on behalf of the Wife, through the Husband’s solicitor. There is then a request that the Wife promptly advise of her travel dates such that the Husband may make the appropriate bookings on her behalf.
The Wife also deposed that the Husband made the payment of the $550,000 ordered to be paid to the Wife on 26 August 2005, two days later than was ordered at Order 1.4 made on 23 June 2005.
The Wife also referred to the chest of mahogany drawers- deposed to in the Husband’s affidavit. She stated that this item was accounted for by me when summarising the items that were retained at B where the Wife is currently residing. She attached as Annexure “E” a document which she submitted sets out that the mahogany chest of drawers would remain at B.
The Wife further deposed to an air conditioner belonging to her, which was formerly at the W residence (of the Husband) and she stated was not valued. She annexed as Annexure “F” copies of letters which state that she may pick up the air conditioner from the veterinary practice of the Husband at an appropriate time.
The Wife stated (at paragraph 14 of the affidavit) that it has always been her intention, with the appropriate instructions, to return the secretaire, the other items, an old Persian rug and the photograph. However, she stated that these items would be returned in exchange for the following “long outstanding” items, required to be given to her by the Husband:
·$650 maintenance payment;
·350,000 airpoints transferred to a designated plan;
·the air-conditioner or value there-of;
·$81.37 as interest on the late payment of the lump sum payment to her by way of order 1.4 in the trial judgment;
·items that were listed in the above Response to an Application for Final Orders:
(iv)one Elizabeth David pate dish
(vii)one Doulton whiskey jug
(viii)one Blue and White Chinese plate
(ix)one Scrimshaw game.
(x)one old Persian rug
(xii)One 19^th Century reproduction painting of a pig
(xiii)two silver plate trays
(xiv)one ornate mirror
(xv)one small ceramic vase
(xvi)one Parian ware jug
(xvii)two stainless steel pots (belonging to her mother)
(xx)one small sterling silver double oval photoframe.
The Wife then deposed that counsel for the Husband stated that the Husband did not have any of the above items, which she disputed, and requested that if the Husband has disposed of these items post-trial, that the Court make orders for compensation. She estimated the air conditioner is worth approximately $500 and the remaining items are worth $800.
The Wife further requested that I make orders for a reciprocal arrangement for the transferring of the goods by carrier should there be an exchanging of chattels. The Wife sought that if her chattels have been disposed of, then the Husband alone pay for transporting and manpower for his items.
In his affidavit filed on 2 May 2008 the Husband submitted that it was his belief that at the trial all the items sought by the Wife in her application, and which the Husband was willing for the Wife to retain, were already in her possession in consequence of her picking them up from the Husband’s W residence in January 2003, and further, as a consequence of the Husband’s engagement of a carrier to transport certain items from W to the Wife’s residence at C in early 2003. The Husband contended that the items transported to the Wife at that point are listed in Annexure “ADP1” to the Husband’s affidavit. The Husband further deposed that upon delivery of those items, the deliverer was unable to contact the Wife and thus delivered them to a storage depot at C for the Wife to collect.
The Husband contended that the items collected by the Wife in 2003 included:
·a pine table
·a ceder hall table
·a red rug
·2 original paintings
·a mahogany chest of drawers
·a Art Deco bronze and ivory figurine
·a collapsible wooden tray
·a reproduction painting of a pig.
The Husband contended that in regards to other items set out in the Wife’s affidavit, that he has a Chinese chequers game which may be the game described by the Wife as scrimshaw, but to the best of his knowledge, he now has no other items sought by the Wife.
The Husband further deposed that he believes the air conditioner the Wife refers to is the unit that was installed in the W home “well before separation” and that the old air conditioning unit, which the current air conditioner replaced, may have been disposed of, due to it being beyond economical use on account of its age.
In relation to “air points”, the Husband contended that he believes that the Wife is making reference to frequent flyer points accumulated with Ansett Airlines which have ultimately became worthless due to the liquidation of that company.
The Husband disputed that the amount of $550,000 owed to the Wife was not paid on time, and stated that it is his recollection that this amount was paid by 24 August 2005.
The Husband further stated that he believed he was entitled to discontinue maintenance payments made at the rate of $650 once he had paid the property settlement of $550,000 to the Wife. Further, he did not accept that he would be required to make the final periodic payment to the Wife, even if he had failed to do this (which he did not admit).
The Husband further stated that of those things described by the Wife as owing to her, the Wife is either not entitled to them, or those things are not in the possession of the Husband.
The Husband further states that he believes the outcome of the trial was such that the items which remained at the W property at the time of valuation were intended to belong to him.

CONCLUSION

I am going to make the orders sought by the Husband in relation to the delivery up to him of three items being the secretaire; the photographic print and the set of specified items. The Wife contends, and I accept, that she does not have the books and journals and they may have been in many boxes which were stored at B prior to separation, and were removed some three months after separation.
For a number of reasons I am not going to make the orders sought by the Wife in relation to the $650 maintenance payment, the 350,000 frequent flyer points, the air-conditioner or value there-of; the amount of $81.37 as interest on the late payment of the lump sum payment or the thirteen items listed in the Wife’s Response to an Application for Final Orders:
The Wife has not commenced enforcement proceedings in relation to the arrears of spouse maintenance of one week or the interest on alleged late payment of the lump sum property settlement amount. Further, there is an issue about whether or not there was a breach of orders. Further, even if there was a breach given the amounts involved I would exercise the discretion not to enforce.
As to the frequent flyer points there is no evidence that what the Husband contends for is incorrect and thus they no longer exist.
As to the air conditioner, again the evidence of the Husband is that it no longer exists and in any event there is no evidence that if it does exist it has or had any material value.
As to the thirteen items again there is an issue as to whether the items are in the possession of the Husband. His evidence is that he has none of the items, and I assume this also means his present Wife. On this basis the evidence does not enable me to safely conclude that they exist and could be given to the Wife. In any event, according to the Wife, the items have a value of only $800.
Finally, I have grave doubts that I would have the jurisdiction and power pursuant to s 79 of the Act to make any orders about such items with the exception of the items the Husband seeks about which there is no issue I have made an order pursuant to s 79 which included a provision (pa 1.14) that covered personalty.
I am of the view that the Husband should pay the costs of his obtaining the his items.

COSTS-RELEVANT PRINCIPLES

Section 117(1) Family Law Act provides that subject to s 117(2) and s 117AA and s 118, each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) provides that if, in proceedings under the Act, I am of opinion that there are circumstances that justify me in doing so, I may, subject to sub secs (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs whether by way of interlocutory order or otherwise, as I consider just.
Section 117(2A) provides that in considering what order (if any) should be made under s 117(2), I shall have regard to the matters set out in paras (a) to (g).
In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123 the Full Court said at p 130:
[41].…The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subsection 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

CONCLUSION-COSTS

The Husband seeks an order that the Wife pay his costs of an incidental to the application filed on his behalf.
In all the circumstances, I am not going to deal seriatim with each of the statutory considerations. I accept that the Husband has been wholly successful and the Wife has been wholly unsuccessful. However, I also take into account the financial circumstances of the parties and the nature of the issues before me.
I am hopeful that this is the end of what has been extraordinarily protracted and difficult litigation. However, notwithstanding the difficulties I have always had the impression that the Wife, who for a significant part of the proceedings has not had legal representation, has been bona fide and has not sought to mislead me or unduly delay the resolution of the controversies.
The Wife was of the view that there remained for consideration her application for the delivery to her of the thirteen items. There was a controversy about the frequent flyer points and as a result of representations on behalf of the Husband, the Wife thought she would get some benefit from the points. So also with the air conditioner, which may no longer exist, representations were previously made to the Wife that she would get it. I also accept that the Wife believes that the Husband was in breach of orders for the payment of money. I also accept that the Wife thought that she was entitled to raise all these matters in opposition to the claims by the Husband.
I have come to the conclusion that the general rule specified in s 117(1) should apply and that each party should pay their own costs.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate: …

Date: 22 July 2008

[2008] FamCA 560

22 July 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Remedies