Roberts and Roberts
[2008] FMCAfam 1169
•31 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBERTS & ROBERTS | [2008] FMCAfam 1169 |
| FAMILY LAW – Property – modest asset pool – contributions – s.75(2) factors – caveat by third party – costs. |
| Family Law Act 1975, ss.75(2), 79(4), 106A, 117(2), 117(2A) |
| Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Russell v Russell (1999) FLC 92-877 Hayne and Hayne (1977) FLC 90-265 Hodges Hall v Jovanovic and Markov (1995) FLC 92-661 |
| Applicant: | MS ROBERTS |
| Respondent: | MR ROBERTS |
| File Number: | MLM 8234 of 2005 |
| Judgment of: | McGuire FM |
| Hearing dates: | 14 & 15 October 2008 |
| Date of Last Submission: | 15 October 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cantwell |
| Solicitors for the Applicant: | Gibson & Gibson |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms Jenkinson |
| Solicitor for the Independent Children’s Lawyer: | Macgregor Solicitors |
THE COURT ORDERS:
That the husband shall:
(a)Within 28 days of the date of these orders transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(i)The property at Property G in Victoria and comprised in Certificate of Title Volume [9] and Folio [1] and do all such things and sign all such documents necessary to effect that transfer within the said time;
(ii)All personalty and chattels in the possession of or under the control of the wife as at the date of these orders including but not limited to any motor vehicle registered in the wife’s name, the trailer, and the wife’s [omitted] business;
(iii)Any bank account or like investment in the name of or to the benefit of the wife as at the date of these orders.
(b)Be solely responsible for and indemnify the wife in respect of the following:
(i)The husband’s Visa card liabilities;
(ii)Any and all liabilities incurred by the husband since separation in either joint names or in his name alone;
(iii)Any and all liabilities attaching to any of the assets to be retained by the husband pursuant to these orders.
That the wife shall:
(a)Contemporaneously with the transfer orders referred to in paragraph (1) hereof, transfer and/or vest all her right, title and interest in the following to the husband absolutely:
(i)All personalty and chattels in the possession of or under the control of the husband as at the date of these orders including but not limited to the caravan and the boat in his possession or control;
(ii)Any bank account or like investment in the name of or to the benefit of the husband as at the date of these orders.
(b)Contemporaneously with the transfer to her of the property at Property G, do all such things and sign all such documents so as to obtain a Release for the husband from his obligations under the National Australia Bank mortgage number [A].
(c)Be solely responsible for and indemnify the husband in respect of the following:
(i)National Australia Bank mortgage number [A] secured by the title to the property at Property G;
(ii)The debt of $20,000.00 owing by the parties to Mrs L;
(iii)The wife’s Visa card liability;
(iv)Any and all liabilities incurred by the wife since separation in either joint names or in her name alone;
(v)Any and all liabilities attaching to any of the assets to be retained by the wife pursuant to these orders.
(d)Contemporaneously with the transfer orders in paragraph (1) hereof, pay to the husband a lump sum of $5,262.00.
That within 28 days of the date of these orders, the husband and the caveator, Wendy Esther Maitland-Smith do at their expense provide
a withdrawal of caveat [D] to the wife’s solicitors on the record, such caveat lodged on the title to the property at Property G.
Pursuant to an order made in the Federal Magistrates Court of Australia on 13 February 2008, in proceedings between the parties, the husband pay the wife’s costs of and incidental to the application for Recovery Orders filed by the wife on 31 January 2008 in the quantum
of $4,251.65 and such amount to be set off against the moneys to be paid by the wife to the husband pursuant to order (2)(b) hereof.
AND THE COURT DECLARES:
That these orders are intended to finally determine the financial relationships between the parties with respect to Part VIII of the Act.
IT IS NOTED that publication of this judgment under the pseudonym Roberts & Roberts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 8234 of 2005
| MS ROBERTS |
Applicant
And
| MR ROBERTS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant wife initially filed an application on the 30 September 2005 seeking parenting orders in respect of two children, namely [J] born in 1995 and [K] born in 1997. The wife also sought orders as to a property settlement.
The husband filed a response on 22 November 2005.
Orders were made by consent on 7 June 2006 providing that the children [J] and [K] reside with the wife and have contact with the husband.
The application in respect of property orders was further adjourned for hearing.
The wife filed a further application on 31 January 2008 effectively seeking a recovery order in respect of the child [K]. Orders in respect of [K] were made on 13 February 2008 returning the child to the care of the wife.
The wife filed an amended application on the 13 March 2008 whereby she sought to vary the children’s orders made on 7 June 2006 by removing the provisions for time spent between the children and the husband midweek.
The children were represented when the matter came before me for hearing on 14 October 2008.
The Court also had the benefit of a family report dated 25 September 2008.
The wife was represented at the hearing. The husband appeared in person having discontinued his instructions to his solicitors on the
31 March 2008.
To the credit of the parties and ultimately to the benefit of the children, the husband and the wife were able to resolve the children’s matters
at an early stage of the hearing. A minute of consent orders was provided and the Court made orders accordingly.
The property application proceeded to hearing.
Background
The parties commenced cohabitation in 1986. They were married in 1990. Final separation occurred in September 2005.
At the time of the hearing the husband is 53 years of age. He is in receipt of a disability pension. He is in a new relationship although he does not concede that the relationship has achieved the formal status of being a de facto relationship.
The wife is currently 43 years of age. She has qualifications as a [omitted] which brings her a small income. She receives a Centrelink carer’s benefit in relation to the care of her elderly grandmother Mrs L. The wife has also re-partnered. Similarly, she does not concede that her relationship has achieved the status of being a de facto relationship.
The wife remains resident with the two children in the former matrimonial home situate at Property G in Victoria.
In March 2002 the husband suffered a work related injury when in the employ of [omitted]. The unchallenged evidence is that he received weekly WorkCover payments for a period. He settled the claim in September 2004, receiving approximately $32,000.00 gross, but only approximately $12,000.00 net after a repayment to Centrelink. The Terms of Settlement in relation to the husband’s personal injuries claim was tendered as an exhibit. The evidence is that the husband has no pending or potential further common law claims.
Orders sought
The husband had not filed a response at the time of the hearing. He made it clear, however, that he sought in general terms an order that he receive 40% of the net property and that the wife receive 60% of that property.
The wife sought orders in respect of property in the following terms:
a)That she retain the property at Property G, but subject to any mortgage;
b)That she indemnify the husband in respect of an alleged joint liability in the sum of $20,000.00 being a loan to the parties from the wife’s grandmother, Mrs L;
c)A consequential order providing for the removal of a caveat lodged by the husband’s former solicitors Maitland-Smith & Associates against the title of Property G;
d)A general order for a further cash adjustment in favour of the wife dependent upon the status of the evidence as to the husband’s WorkCover and/or common law claims;
e)Determination of the wife’s costs reserved from the abovementioned recovery order proceedings, the costs of which were reserved on the 13 February 2008.
The law
The proper approach to the determination of an application for property settlement is now well established. In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener)[1] the Full Court of the Family Court of Australia said at [78,386]:
That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss. 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s. 79(4)(e), the matters referred to in s. 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
[1] (2003) FLC 93-143.
Section 79(4) of the Family Law Act 1975 (“the Act”) sets out those matters to be taken into account in making orders for alteration of property interests as between the parties. They are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The Full Court of the Family Court of Australia in Russell v Russell[2] said at [86,439]:
Furthermore, it must be remembered in this regard that under
s 79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties’ assets. Indeed we take the opportunity to emphasise that in what his Honour has termed “the fourth stage”, that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not the percentage distribution which must be considered.
[2] (1999) FLC 92-877.
Assets and liabilities
It is relevant to note that this matter is characterised by a relatively small pool of assets consisting primarily of the former matrimonial home at Property G.
There are other miscellaneous items of property being:-
·Caravan
·Boat
·Trailer
·Furniture and contents
·Wife’s [omitted] business
There is no formal valuation in respect of the home. The husband adduced no evidence as to valuation. The wife tendered appraisals from two real estate agents. In his submissions, counsel for the wife urged me to determine that the property has a value of $250,000.00. That is the best evidence before me.
There are no valuations of the caravan, boat, trailer, furniture or contents, or wife’s “[omitted] business”. There appears to be agreement, however, that the value of each of these items of property is nominal at best, and that the only asset of any significance is the former matrimonial home.
There is a National Australia Bank mortgage liability of $177,376.00
as at 30 September 2008.
There are other liabilities. Each party in their financial statements deposes to a credit card liability. The wife claims a liability of $8,000.00. The husband claims a liability of $4,000.00. Neither party was tested as to their evidence, and consequently I accept the evidence as set out in their financial statements. There was however no evidence or suggestion that either liability was a pre-separation liability and
I can only assume that each party has accrued these debts separately and since separation.
On the 22 November 2004, a deposit was made into the National Australia Bank mortgage account of the parties in the sum of $20,000.00. The evidence is that this money came from the wife’s grandmother, Mrs L. Mrs L gave evidence accordingly. She also corroborated the wife’s evidence that the advance was by way of loan and that she requires repayment. The husband did not challenge this evidence. Accordingly, I am prepared to find that there is a debt owed by the parties to Mrs L in the sum of $20,000.00.
Neither party has any superannuation entitlements.
Consequently the assets are as follows:
Property G
$250,000.00
Wife’s [omitted] Business
Nominal
Wife’s Trailer
Nominal
Husband’s Boat
Nominal
Husband’s Caravan
Nominal
Furniture and contents
Nominal
Total
$250,000.00
The liabilities of the parties are as follows:
National Australia Bank mortgage
$177,376.00
Wife’s Credit Card
$8,000.00 E
Husband’s Credit Card
$4,000.00 E
Debt owing to Mrs L
$20,000.00
Total
$209,376.00
Contributions
At the commencement of the relationship the wife had a motor vehicle and $10,000.00 in her bank account. Interestingly, in cross-examination the husband suggested that the wife’s bank balance may, in fact, have been more than $10,000.00. This was just one of the many oddities in the evidence as it came out during the hearing.
The husband says that he owned two motor vehicles, a racing bike worth $25,000.00, and some furniture as at the date of commencement of cohabitation.
The evidence is undisputed that the husband was not substantially employed between 1986 and obtaining work with [omitted] in 1995. During this time he was for a period a [occupation omitted] and brought in some income including $3,000.00 from winning [omitted] in 1987.
The wife worked as a [omitted] until the birth of [J] and has worked on a part time basis since.
From 1995 until his accident in 2002 the husband was employed by [omitted]. Any accrued superannuation was apparently received prior
to separation under the hardship provisions.
In 1995 the parties purchased a property at Property S. The purchase price was $65,000.00.
It is clear that the parties had little savings at the time of the purchase and required assistance with the deposit and costs of purchase.
The wife says her parents gifted the parties $10,000.00. Under cross-examination the husband reluctantly conceded at least some monies from the wife’s parents, saying: “I remember her parents saying that she would get money to pay legal fees for the house like her brother and sister also received money.” I accept the evidence of the wife as
to this gift by her parents.
The husband’s evidence is that he received a loan of some $6,000.00. He says the $4,000.00 came from his father and that a further $2,000.00 from a Mr D who was his father’s employer. The wife disputed this evidence.
The husband’s father, Mr R, swore an affidavit shortly before the hearing and was cross-examined specifically as to this issue. Whilst I considered Mr R to be generally a forthright and honest witness, part of his evidence was at best unusual. That evidence was that he received the sum of $4,000.00 from the wife’s parents, Mr and Mrs M. He says that he in turn loaned that money to the husband and the wife. He says that he then repaid the money to Mr and Mrs M with interest. Mr R was asked why he should effectively be used as a conduit for a loan from the wife’s parents to the husband and wife. He was unable to give a satisfactory explanation.
Whilst it is clear from documents tendered in evidence that there was a loan made by Mr and Mrs M to Mr R, I remain unconvinced that these moneys found their way to the husband and wife, particularly given my findings that Mr and Mrs M made a direct loan to the parties to assist with the purchase of their home.
Further Mr R evidence was that he had not sought repayment of the moneys from the parties. I am therefore left with a lingering suspicion as to the claim of the husband that there was in fact a contribution of $6,000.00 or at all from his father. Consequently, and in the circumstances of a lack of effort or intent to recover the alleged debt, I am not prepared to accept that there is such a debt of the marriage owing to Mr R.
In June 2001 the parties purchased the property at Property G. The purchase price was $172,000.00. There followed some complicated refinancing as they did not contemporaneously dispose of Property S. That property has since been sold, and the equity now sits in the property at Property G.
In about August 2004, the wife’s grandmother, Mrs L, came to live with the parties at Property G. She paid for the placement of a “granny flat” on the property for her own use. Whilst the cost of the “granny flat” was $50,000.00, it is not disputed that it has added some $25,000.00 to the value of the property. I have no hesitation in finding this to be a contribution by or on behalf of the wife.
At around the same time the parties agree that Mrs L transferred to the parties by way of loan the sum of $20,000.00. This was paid into their mortgage account, thereby creating an availability for re-draw.
Mrs L gave evidence that she considered these moneys to be on loan and she expected repayment. As previously mentioned, I accept her evidence.
The evidence of the wife is that Mrs L further contributed in a number of ways including the purchase of a caravan and other incidentals.
Mrs L corroborated this evidence. I accept this evidence.
The wife has lived in the former matrimonial home since separation.
It was put to me that she has paid the mortgage including reducing the principal owing on the mortgage. She has, however, had the sole benefit of the use and occupation of what is a jointly owned asset whilst the husband has been obliged to pay rent.
The wife has had the major responsibility for the financial support of the children since separation. The husband does not currently pay child support and apparently does not even pay a statutory minimum amount. The husband has contributed child support for only approximately six months since separation and then only in a nominal amount.
There is another strange aspect to this case. In or about May 2005,
a matter of months before final separation, the husband drew-down on the National Australia Bank mortgage in a sum of $16,888.00. He was able to do so because of the abovementioned deposit by Mrs L of $20,000.00 made to the parties’ mortgage account.
The husband proceeded to pay out a number of liabilities including two personal loans. The wife says she had no knowledge of the redraw or the transaction. Given that these would normally have been considered as debts of the marriage in any event, I have no reason to disbelieve the wife.
The husband then deposited a sum of $7,609.17 into an account in the name of the parties’ daughter [J] on 11 May 2005. He then used the balance of this account to make a number of mortgage payments. His reason for doing so escapes me. His explanation under cross-examination was unsatisfactory.
The husband says that the remainder of the “draw-down” being approximately $2,684.00 “would have been paid to a credit card”.
The result of this series of strange transactions is that the husband paid personal loans during the course of the marriage and a number of mortgage instalments. I can only assume that he thought he may have been obtaining some financial advantage prior to the final separation. It is not apparent to me that he did so, and I do not intend to make any adjustments accordingly.
The wife has been the primary carer of [J] and [K] since separation in both a physical and financial sense.
As his Honour Justice Pawley said in the well-known decision
of Hayne and Hayne[3]at [76,415]:
In matters such as this one cannot approach the problem with an eye for meticulous detail. It should rather be dealt with broadly so that the end result can be said to be just and equitable.
[3] (1977) FLC 90-265.
Considering all of the above, I conclude that the wife’s contributions alone are such than an adjustment of 25% in her favour would
be appropriate.
However, s.79 of the Act makes it clear that such matters are not determined only on the basis of contributions, but I am also to consider the relevant matters under s.75(2) of the Act and an order that is just and equitable in all the circumstances.
Section 75(2) factors
The husband is 53 years of age. He receives a disability pension.
The wife brought a Mr E to Court by way of subpoena. No issue was taken by the husband with Mr E giving evidence. Mr E is a long term friend of the husband. His evidence was that the husband frequents his tobacconist shop at Property G up to four times per week and for four or five hours on each occasion. Mr E says that the husband performs many of the duties of an employee but according to Mr E he does not receive a wage. Rather, the husband has benefited by way of “loans” from Mr E currently standing at about $7,000.00 as well as free cigarettes. There is a suggestion now by Mr E of the possibility of a partnership for the husband in his business.
The submission on behalf of the wife is that husband has some capacity for employment and may, in fact, be engaged in employment with the evidence of “loan payments” being simply a sham. I must say that I find some merit in this suggestion, given the consistency and frequency of Mr Roberts’ attendance at the tobacconists’ shop together with the unchallenged evidence that he does, in fact, perform the tasks of an employee.
At the very least, the consistent evidence between Mr Roberts and
Mr E that there is a partnership possibility must lead me to conclude that Mr Roberts has some potential capacity for employment or self-employment.
The wife receives a nominal income from her [omitted] skills.
She is a designated carer for Mrs L.
The wife has the primary care for the two children of the marriage.
The husband does not contribute child support.
The husband and his father were both cross-examined as to whether the husband might have a further financial resource In the form of an interest in the estate of a late grandparent.
Mr R gave evidence that it was in fact a brother of the respondent husband who was the beneficiary due to his own particular close relationship with that grandparent. I have no reason not to accept that evidence.
Giving proper consideration to all of the relevant factors under s.75(2) of the Act, I am of the view that a further adjustment in favour of the wife of 15% would be appropriate.
I must look at whether any proposed order is just and equitable in all of the circumstances. In this case I see those circumstances as including:-
a)The very limited net pool of assets;
b)The significant contribution made by Mrs L to the major asset being the former matrimonial home;
c)The continued residence of Mrs L on the property at Property G.
Conclusions - property
Taking all of these matters into account, I am of the view that the wife should receive 90% of the available equity in the property at
Property G in Victoria but taking into account the debt to Mrs L. The value of the property is $250,000.00. The mortgage is $177,376.00. There is the debt of $20,000.00 to Mrs L. The net figure is therefore $52,624.00. The husband is to receive a payment from the wife equivalent to 10% or $5,262.00.
I intend to order that the wife be solely responsible for, indemnify, the husband, and obtain a release for the husband from his liability under the mortgage.
I intend to order that the wife be solely responsible for and indemnify the husband in respect of the debt in the sum of $20,000.00 owing
to Mrs L.
Pursuant to these orders, the husband will retain the caravan and the boat. The wife will retain the trailer and her [omitted] business. Each party will retain those items of personalty and chattels currently in his or her possession.
Each party will retain his or her own credit card liabilities.
The caveat
The wife seeks an ancillary order that the husband and/or his former solicitors Maitland-Smith & Associates, at the expense of the husband, do all things necessary and sign all such proper documents as may be required to withdraw caveat number [D] lodged by those solicitors against the title to the property at Property G, in respect of liabilities for legal fees owing by the husband to that firm
The husband made no submissions against the orders sought by the wife.
The evidence is that the caveat is properly lodged and was done
so pursuant to an equitable charge against the husband’s interest in the property at Property G.
Counsel for the husband helpfully referred me to the authority
of Hodges Hall v Jovanovic and Markov,[4] being a judgment of the Full Court of the Family Court of Australia.
[4] (1995) FLC 92-661.
That judgment discusses the rights of a third party against the property of the parties.
My reading of that judgment discloses that the major issue was that the solicitors in that matter had received no notice that orders relating
to the withdrawal of the caveat were sought. In the case before me, there is clear evidence tendered to the Court and in the form of a letter dated 14 October 2008 from the wife’s solicitors addressed to
Messrs Maitland-Smith & Associates. That letter confirms a prior telephone conversation giving notice of the hearing in this Court. Indeed, the letter acknowledges a request from the husband to his former solicitors to produce their file at this Court for the hearing. The letter gives notice of the orders sought by the wife in respect of the caveat. The letter notes the inclination of the husband’s former solicitors not to attend at this hearing. I am therefore satisfied that there has been sufficient notice to the caveator. For the record, there was no appearance by or on behalf of the caveator.
The Full Court in Hodges Hall v Jovanovic and Markov stated, at [82,097]:
We do not doubt that in a proper case and on proper notice the Court can make orders which have the effect of nullifying any priority or “proprietary” interest created by a charge and protected by a caveat.
Consequential orders
The wife seeks a further and consequential order in respect of the transfer to her of the property at Property G. She seeks an order that the registrar pursuant to s.106A of the Act be permitted to sign all documents to effect the transfer.
Counsel for the wife submitted that such an order should be made based on the history of non-compliance by the husband with court orders. There is no doubt that the husband, who was represented in these proceedings until the 31 March 2008, has conducted himself in a less than satisfactory manner so far as compliance is concerned.
He was cross-examined at some length as to his conduct at the proceedings. His responses, such as they were, were in my view generally unsatisfactory. Nevertheless, the husband will be a beneficiary of these orders in the sense that he will be indemnified and/or released from the mortgage liability. As such, I think it proper that he play a role in the execution and implementation of the orders. Consequently, I do not accede to the application by the wife that the registrar sign any documents necessary for the transfer of the property at Property G to her.
Reserved costs
There is a final matter left for my determination. This is an application by the wife that the husband pay her costs reserved from the proceedings of the 13 February 2008.
On that day, Federal Magistrate Connolly made an order that had
the effect of the father being required to return the child [K] to the mother. The mother had filed an application on the 31 January 2008 seeking a Recovery Order pursuant to s.67Q of the Act.
Counsel for the wife tendered a document entitled “Ms Roberts – calculation of costs” being the costs allegedly incurred by the wife in obtaining the orders of the 13 February 2008. That document was not challenged either in its tender or its quantum by the husband.
The quantum of costs sought amounted to $5,241.65.
Section 117(1) of the Act sets out a general principle that each party to proceedings shall bear their own costs.
This general principle is subject, however, to s.117(2), which states that an order for costs in a quantum as the court considers just, may
be made if there are justifying circumstances in so doing.
Section 117(2A) sets out the matters that a court shall take into account in determining what order, if any, is to be made as to costs.
I am to consider the financial circumstances of each of the parties
to the proceedings. It is fair to say that neither party is in a strong financial position. I have made findings and observations above as
to the capacity of each of the parties for employment.
The evidence is that neither party is in receipt of a grant of legal aid.
I am to consider the conduct of the parties to the proceedings
in relation to the proceedings. The unchallenged evidence was that the wife was obliged to prosecute her application for a recovery order only after no less than two separate letters were sent to the husband through his solicitors seeking the return of [K]. I emphasise that at this stage the husband was represented by solicitors. The husband did not accede to those quite proper requests.
Further, the husband in cross-examination agreed with the wife’s counsel that he had been informed of the ramifications of non-compliance with a court order.
As such, I find some merit in the submissions of counsel for the wife that the conduct of the husband was reprehensible. He did not initiate an application to change the existing orders. He simply retained “possession” of the child. He did so, on his own admission, contrary
to the advice of his own legal representatives. As a result, the wife was obliged to bring and prosecute her application for return of the child.
The wife was completely successful in her application.
After considering and balancing all of the matters referred to in s.117(2A) of the Act, I am persuaded that there should be an order that the husband pay the wife’s costs of, and incidental to, the proceedings leading to the order of the 13 February 2008. I accept the unchallenged submissions of counsel that a sum inclusive of counsel’s fees for the
13 February 2008is appropriate, save and except, however, that
a claim is made for counsel’s fee for the 17 March 2008. On that day, an order was made for the appointment of an Independent Children’s Lawyer and did not apparently relate to the recovery order proceedings. Consequently, I intend to make an order for costs in a quantum of $4,251.65.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate: Ann Creek
Date: 28 October 2008
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