Pourdis & Pourdis (No 3)

[2012] FamCA 167

FAMILY COURT OF AUSTRALIA

POURDIS & POURDIS (NO 3) [2012] FamCA 167

FAMILY LAW - COSTS – application for costs by the wife – whether the circumstances justify the making of a costs order – consideration of section 117(2A) factors – where the wife was wholly successful in her application – where the Court took into consideration the husband’s conduct – orders that the husband pay the wife’s costs of and incidental to her application.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Pourdis

RESPONDENT: Mr Pourdis

INDEPENDENT CHILDREN’S LAWYER: Northern Territory Legal Aid Commission

FILE NUMBER: DNC 552 of 2010

DATE DELIVERED: 20 March 2012

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 20 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Truman

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Bowen

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHLDREN’S LAWYER: Ms Palavra

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Northern Territory Legal Aid Commission

Orders

UPON NOTING

1. The trial to commence before the Honourable Justice Dawe on Thursday 22 March 2012 at 10.00 am allowing five [5] days (if trial does not conclude in this sitting, the matter will be adjourned part-heard to the next Judicial Sittings in Darwin commencing on Monday 2 July 2012 OR if only the evidence left to hear is briefly the evidence in relation to plant and equipment and closing submissions, special arrangements may be made to call on earlier by way of video-link from Adelaide).

2. The affidavit of witness Mr C will be before the Court without the necessity for Mr C to give oral evidence.

IT IS ORDERED THAT

1. By 2.00 pm today the husband provide to the wife’s solicitor in writing a full list of all plant and equipment owned by him or any of the entities which he is connected and the specific location of each item for the purposes of the valuation in the property settlement proceedings and that the husband by 12 Noon Wednesday 21 March 2012 provide and continue thereafter to make arrangements for the valuer to have full access to all places necessary and access to the plant and equipment necessary for the purposes of valuation.

1. The time required for compliance for both parties with paragraph 3 of the Order of 12 March 2012 is extended to 10.00 am on Wednesday 21 March 2012.

1. The time is extended to 2.00 pm today for the husband to file and serve his Affidavit and Financial Statement.

1. The husband pay the wife’s costs of and incidental to the Application in a Case filed by the wife on 16 March 2012 such costs to be agreed within twenty-one days [21] days and failing agreement within that time as assessed by a Registrar of this Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pourdis & Pourdis (No 3) 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 DARWIN

FILE NUMBER: DNC 552 of 2010

Ms Pourdis

Applicant

And

Mr Pourdis

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The fourth paragraph in the application was in relation to the husband making arrangements for the real estate valuer to gain access to the property at F Street, Suburb B.  Since the filing of the application, I am told that the access has been granted and, therefore, the order is not necessary. 

2. However, in relation to the application for costs, it is relevant that, at the time of the filing of the application and supporting affidavit, that access had not been granted.

3. The explanation, or purported explanation of the husband, is set out in his affidavit filed on 19 March 2012.  He acknowledges that he was aware of Mr GG’s attendance at 9.00 am on Tuesday, 13 March, and says that he was present at the property.  He does not explain in that affidavit whether he saw Mr GG at the property.  He simply says that, if he was to attend at any time, he was expecting telephone arrangements.

4. In paragraph 5, he refers to a missed call.  That the missed call was on Wednesday, and it was his practice not to answer any of those calls.  He then says that he contacted Mr GG on Sunday and arranged for the attendance at the property at 9.00 am on Monday.  This is a time after the application.  Monday, 19 March 2012 is, obviously, days after 16 March 2012, when the application by the wife’s solicitors was filed.

5. In relation to the valuation of the plant and equipment, again, he refers to missed calls and, again, says that he was able to obtain a list of plant and equipment on Sunday, 18 March.  His explanation for failing to attend to it more promptly is inadequate. 

6. The provisions of section 117 are that, normally, each party would bear their own costs of the application, except where the Court considers it is otherwise just, in all of the circumstances. In particular, the Court is referred to the provisions of subsection (2A) of section 117, setting out various factors to be considered.

7. In this case, the significant factors are the success of the wife in the application and the conduct of the husband in not responding to telephone calls or providing appropriate information for the provision of details and access.  The husband was in Court when the orders were made on 12 March 2012, with a view to preparing this matter for the completion of the hearing in relation to both children’s and property settlement issues, which are due to commence before me this week. 

8. Therefore, I am satisfied that there are circumstances which justify the making of an order for costs, and particularly bearing in mind the financial circumstances of the parties, as presently before the Court.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 March 2012.

Associate: 

Date:  22 March 2012