Schneider and Nugent - [2016] FCCA 1769

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHNEIDER & NUGENT

[2016] FCCA 1769

Catchwords:
FAMILY LAW – Costs – Costs application by respondent wife who seeks indemnity costs – applicant husband withdrew property proceedings – examination of s.117 considerations particularly conduct of the wife throughout the proceedings – failure to comply with her obligations of disclosure – wife’s conduct resulted in wasted court time and additional expense for the husband – wife makes allegations of fraud in relation to documents validating a marriage in 2012 without foundation and based on her own speculation – wife’s Barrister makes allegations of fraud throughout submissions without foundation contrary to Barristers Conduct Rules – no order as to costs – referral to the Bar Association.

Legislation:

Family Law Act 1975, s.117

Cases cited:
Collins & Collins (1985) FLC 91-603
Kohan & Kohan (1993) FLC 92-340
Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225

Applicant:

MS SCHNEIDER

Respondent:

MR NUGENT

File Number:

ADC 3423 of 2011

Judgment of:

Judge Willis

Hearing date:

23 March 2016

Date of Last Submission:

23 March 2016

Delivered at:

Cairns

Delivered on:

14 July 2016

REPRESENTATION

Counsel for the Applicant:

Mr Wrenn (direct brief)

Solicitors for the Respondent:

self-represented

ORDERS

The Wife’s application that the Husband pay her costs of and incidental to these proceedings is dismissed.
That the Principal Registrar of the Federal Circuit Court refer this decision to the Bar Association of Queensland for whatever action they think appropriate.
All outstanding applications are removed from the pending cases list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

ADC 3423 of 2011

MS SCHNEIDER

Applicant

And

MR NUGENT

Respondent

REASONS FOR JUDGMENT

This is an application for costs following on from property proceedings that were finalised on 16 February 2015. On that date I made the following Orders (as amended on 14 April 2015):
1. All outstanding Applications and Responses are dismissed and removed from the active pending cases list NOTING that a Notice of Discontinuance was filed on 11 February 2015.
2. The trial dates of 9, 10, and 11 March 2015 before Judge Coker are hereby vacated.
3. The Application in a Case submitted to the Court on 10 February 2015 is to be returned to the Registry to be dealt with in the usual way noting that there are now no applications on foot and therefore the Application in a Case would need to be filed using an Initiating Application. If the application is re-lodged, noting the nature of that application being to declare a divorce order void, the matter should be filed in the Family Court of Australia.
NOTATION:
A. The Applicant filed a notice of discontinuance on 16 February 2015. The only orders sought by the Respondent in the response was to dismiss the application.
B. THE COURT NOTES that neither party has appeared at the compliance check listed today.
Since that date, an Application in a Case was filed by those representing Ms Schneider[1] (“the wife”) on 9 March 2015 (the respondent in the substantive application) which sought orders for costs against the Mr Nugent (“the husband”) and further, that the costs ought to be assessed on an indemnity basis. At the hearing of the costs application Mr Wrenn of Counsel appeared by way of a direct brief for the wife. Mr Wrenn has not been involved for most of the history of this litigation. The respondent has been initially represented by Mr Mirotsis, a solicitor who said he appeared as a “friend of the Court” who then became the solicitor on the record for a period. Then the wife was represented by a solicitor from Farrellys, Mr Taft, who engaged Mr Victoire of Counsel and they appeared for the respondent wife for a period. Then around February 2015 as the matter approached the trial, Mr Wrenn of Counsel appeared by way of a direct brief. Mr Wrenn’s submissions focused almost exclusively on the period from February 2015 onwards, whereas this matter had been litigated since 2013. Mr Wrenn seeks a costs order, and his first position is that costs should be awarded on an indemnity basis. The fees Mr Wrenn refers to have, according to the wife, been charged by her former lawyers, though as will be seen, most of the fees remain outstanding.
[1] I have adopted the spelling of the wife’s surname with an ‘(omitted)’, however, I note throughout the Court documents, including the wife’s that she interchangeably ends her surname with an ‘(omitted)’ or a ‘(omitted)’.
This property application has been in my docket since 2013 and there is quite a history which needs to be examined since that time. As Mr Wrenn submits that “throughout the entire proceedings the respondent has committed a false claim and seeks the entirety of the wife’s costs”. The matter from its inception has involved various court appearances and procedures, mentions and applications which involved the applicant incurring these legal fees, and the respondent also incurring legal fees prior to the Notice of Discontinuance being filed, in order to determine this costs application.
This matter has involved much Court time. Each time these parties have appeared, the Court has organised (at no expense to the parties) an interpreter as English is not the first language of either the applicant husband or the wife. A (language omitted) or (nationality omitted) interpreter has been organised for each Court event though as will be seen, this expense at time has been questionable. For the period when Mr Mirotsis a solicitor of Omega Lawyers appeared for the wife, he indicated that his client, the wife did not need an interpreter, however it seemed from the wife’s exchanges during the first mention on 6 March 2013 in the telephone appearance, that she had an inability to comprehend fully what was happening. Thereafter, the Court organised for an interpreter to assist the wife. The husband also did not speak English as his first language either, though he was generally assisted by a friend he bought to Court who spoke both languages.
The Court noted that wife’s documents prepared by her solicitor Mr Mirotisis did not include a jurat confirming that the contents of the documents had been translated for her. As bizarre as it sounds, when this contradiction was pointed out to Mr Mirotsis, he turned to the wife and queried the position with the wife as to whether or not she understood English and the contents of her affidavit. Mr Mirotsis then informed the Court that the wife said she had “forgotten” how to speak English. This position of the wife in fluctuating between whether she could or could not speak English, like many other aspects of the respondent’s conduct as a litigant was ultimately time wasting and unsatisfactory.
These parties started their history in their family law dispute by obtaining a divorce. The Divorce application was filed in the Adelaide Registry where the husband was living at the time. I will come back to this issue. However, Mr Wrenn seeks to make significant issue of the wife’s draft application prepared by Mr Wrenn in February 2015, which alleges fraudulent behaviour by the husband in providing or falsifying documents related to the Divorce in 2012. The draft application sought to set aside the divorce. Mr Wrenn’s application for costs, and moreover indemnity costs stems from his lengthy submissions that the husband has committed a fraud in providing what his client believes to be a false marriage certificate to support their divorce in 2012.
I should say at the outset, the application drafted by Mr Wrenn has never been accepted for filing in the Federal Circuit Court. Further whilst that Mr Wrenn has made submissions about his client’s own belief as to the authenticity of documents filed in relation to her divorce, there is a distinct lack of any credible or independent evidence to support the submissions. It is at best a case theory.
Mr Wrenn has developed the theory, which he has propounded throughout the costs application. The theory is that the husband only withdrew his application for property division when the husband was faced with an application to set aside the divorce order in February 2015, prior to the final property hearing which was listed to be heard in March 2015. The theory continues that because the husband’s solicitors filed a Notice of Discontinuance after being sent a draft application and draft affidavit to support a proposed Application in Case by the wife, it is therefore obvious and without doubt, that the husband has committed the alleged fraud and therefore the Court should make an order, not only for costs, but for indemnity costs.
I have attempted to explain to Mr Wrenn a few important issues in relation to his strong submissions regarding his hypothesis. First, that the Application in Case prepared by him on behalf of the wife, has never even been filed or listed for a court event. Second and importantly that there has been no hearing of the application and therefore no finding by any Court that the husband has falsified documents. I have attempted to explain to Mr Wrenn the seriousness of him making these allegations. Nonetheless Mr Wrenn has maintained his position. I have explained to Mr Wrenn that it is inappropriate for him to make allegations of fraud about matters that have never been tested and that this Court was certainly not going to commence a hearing, in the midst of a costs application, based on allegations of Mr Wrenn. I have explained that as Counsel, he should only do so on very solid and convincing evidence, and that it is improper for him to make the allegation based on inferences. These explanations have quelled Mr Wrenn’s enthusiasm for his allegations of fraud by the husband only to a minor degree.
Mr Wrenn claims the sum of $71,365.37 by way of indemnity costs. I am told by Mr Wrenn that this amount was taxed as correct however, on querying this, I am informed that the taxation officer is a Mr G, the nephew of the wife who is not a lawyer. I would add that the alleged “bill of costs”[2] which Mr Wrenn says was prepared has been prepared by Mr G, consists of only 3 items as follows:
[2] Affidavit of Ms Schneider filed 13 July 2015, annexure S5.

Amount taxed off	Item No.	Date	COSTS Description of work done including item number under Schedule 1 Part 1 Federal Circuit Court Rules 2001	Amount
1.	17/5/13-10/12/13	Solicitor Client Costs Omega Lawyers under Costs Agreement Paid by the Respondent Outstanding account Respondent	$5,500.00 $11,619.10
2.	28/2/14- 9/2/15	Solicitor Client Costs Farrellys Lawyers without a Costs Agreement Paid by the Respondent Outstanding account Respondent	$10,000.00 $44,246.27
3.	10/2/15	Fee for Counsel Mr Andrew Wrenn Paid be (sic) Respondent *Sub-total (this page only)* Less taxed off Add taxed on *Taxed and allowed (this page)*	$5,000.00 *$71,365.37*

Costs and disbursements	Amount claimed	Amount taxed and allowed
*Total costs*	*$71,365.37*

I certify that the additions in this bill of costs are correct

Date: 13/7/15
Signed by Respondent – Ms Schneider

Prepared by Mr G

Although the document purports to include reference to the Federal Circuit Court Rules schedule 1, it is abundantly clear that the bill of costs has been prepared without recourse to Schedule 1 of the FCC Rules. I made subsequent directions for the proper preparation of a schedule of costs.
At the first mention of this application, when the costs issue was first agitated by Mr Wrenn, I was not satisfied that the two previous solicitors for the wife were even aware that the costs application was being heard. Through a process of careful inquiry by the Court, I was not satisfied that there was service upon the solicitors who were allegedly still owed significant sums. I therefore made further orders that proper service, with proper notice (not the afternoon before), be given to Farrellys and Omega Lawyers.
Omega lawyers have allegedly been paid $5,500.00 by the respondent but those lawyers are still owed funds according to a one line entry “Outstanding account Respondent” $11,619.00. I have not seen evidence of the actual account.
Similarly according to the document “S5” (which is an annexure prepared by the non-lawyer nephew of the respondent) the respondent has paid $10,000.00 to Farrellys and still owes (according to a one line entry) $44,246.27. I am told that the payment has been secured through the wife delivering up four (country omitted) rugs to her solicitors. The wife has been attempting to have these rugs returned to her. I have copies of what are alleged to be letters sent on behalf of the wife, by her nephew, to a partner at Farrellys demanding her (country omitted) rugs back and delegating authority to her nephew Mr G to collect them on her behalf.
In reference to the quantum of the wife’s claim for costs, Mr Wrenn includes his own fees $5,000.00 (single line entry – no details). I note that in relation to the bill of overall costs claimed, the non-lawyer nephew of the wife has stated “taxed and allowed” $71,365.37. The suggestion that the costs have been taxed, is as can be seen, entirely inaccurate. Mr Wrenn of Counsel did not volunteer that the “taxing” had occurred by a non-lawyer, this was noted by the Court on examination of the documents being relied upon by Mr Wrenn. In addressing this query, Mr Wrenn said words to the effect that he did not know too much about the quantum of costs. It ill behoves Counsel to make submissions that the bill of costs was taxed in circumstances where this is utterly incorrect.
As can be seen, the bulk of the legal fees being pursued on an indemnity basis, have not been paid by the wife to her former solicitors.

Costs – Section 117 of the Family Law Act

Section 117 of the Family Law Act 1975 is the relevant section. S.117 (1) provides essentially for each party to pay their own costs.
S.117(2) provides that the Court can make an order for costs, and when considering whether to do so, the Court is required to consider certain matters set out in s 117 (2A) together with any other relevant matter.
In Collins and Collins (1985) FLC 91-603 at page 79,877 the Full Court said:
“In deciding whether the circumstances justify an order for costs, there is a broad discretion to be exercised, having regard to the factors set out in subs. (2A) so far as relevant. Those factors… are not to be read in a restrictive way, however, the discretion remaining is a broad one: Penfold v Penfold (1980) FLC 90-800 at pp 75,053-75,054 (High Court); quoted in Mallet v Mallet (1984) FLC 91-507 at pp 79,123-79, 124 (by Wilson J).”
In Penfold v Penfold (supra), the High Court overturned a decision of the Full Court of the Family Court who upheld an appeal against the trial judge’s decision to order that the husband pay the wife’s costs in relation to a maintenance application. Importantly the whole of the High Court (who unanimously overturned the Full Court’s decision) held that:
Stephen, Mason, Aickin and Wilson JJ –
“It is an accurate description of section 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to sec. 117(2). As subsec. (1) is expressed to be subject to subsec. (2), the former must yield whenever a judge finds a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an application for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s.117 (2) in “a clear case.””
Justice Murphy of the High Court also added:
“The general rule expressed in s.117 (1) is that each party shall bear his or her own costs; this is subject to the exception expressed in sub-s. (2). The phrases, “in a particular case” and “circumstances that justify it in doing so” emphasise that s. 117(1) expresses the general rule, which is not to be departed from unless the court forms the opinion in a particular case “that there are circumstances that justify it in doing so”.”
And further:
“Presentation of a false statement of financial circumstances, which puts the other party to the trouble and expense of disproving it, is a circumstance which justifies an order for costs. Courts should regard such circumstances which tend to undermine the integrity of proceedings with great concern, and should do everything in their power to determine who is responsible in order maintain that integrity.”
I will now turn to each of the considerations referred to in Section 117 (2) and cavass the relevant history of the litigation.

Section 117 (2)(a) The financial circumstances of each of the parties

I have had regard to the financial statement filed on behalf of the applicant on 18 January 2013. He does not have his own home or any assets at all. His income is an aged pension of $380.00 out of which $150.00 per week is paid for rent. At the time he completed his Financial Statement he had $101.00 in the bank. He lives with friends and moves around it seems from Adelaide to Cairns.
I have had regard to the financial statement of the respondent filed on 15 February 2013. It indicates that the respondent wife is also in receipt of an aged pension of $270.00. The respondent says she owns a home at Property S and that it is valued at $310,000.00. She swears to the fact that there is no mortgage on the home.
I am satisfied however, that the wife is in a much stronger financial position than the husband. The wife has been less than honest with the Court in relation to her financial position. The financial statement swears to the fact that the home is unencumbered. During the course of this litigation, contrary to what was in her sworn financial statement, when queried the wife advised that the home was mortgaged. As with much of the wife’s evidence in this matter, information had to be extracted from her, whether or not she was legally represented. There was significant time wasted through trying to clarify what the property pool as will be seen in these reasons. The wife’s subsequent evidence that the home was mortgaged to “a friend” in Darwin who paid the repayments for her, was completely at odds with what she had sworn to. There were significant financial dealings with former matrimonial funds and bank accounts subsequently revealed through the Court processes, which the wife had made no mention of in her sworn financial statement or accompanying affidavit, nor through disclosure.
The wife is in a significantly greater financial position than the husband. She has at least one home and an interest in another. Her bank accounts and dealings suggest that she is far more financially secure than she attempted to portray to the Court.

(b) Whether either party is in receipt of Legal Aid

Neither party to the proceedings is in receipt of Legal Aid. Each of the parties has been either self-represented or privately represented throughout the proceedings. The wife has had various legal representatives and Counsel. The husband has been self-represented, then he was privately represented by Vaisi Lawyers from Adelaide who were heavily involved with much of the forensic enquiries necessary to establish what had become of the sale proceeds from a home owned by both the husband and wife in Property K and what the true financial position of the wife was.

(c) The conduct of the parties to the proceedings in relation to the proceedings including without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, direction to answer questions, admissions of facts, production of documents ad similar matters.

This provision relates to the conduct of the parties as litigants. This is a very significant matter in this application for costs. As I have said, there has been a long history in this litigation prior to the involvement of Mr Wrenn the current direct brief Counsel.

6 March 2013

The actual physical attendance of the respondent wife in the Federal Circuit Court became quite an issue starting with the first return date of 6 March 2013 onwards. As the transcript and orders will show, the wife did not appear on the first return date though the Court was satisfied that she had been served, contrary to what the wife asserted.
At the time the application was filed the respondent was aged 83 and the applicant was 67. The applicant and respondent were married for some 40 years. They married in (country omitted) (or (country omitted) as the parties often refer to). The husband and wife came to Australia and finally divorced in 2012.
On the first return date in the Federal Circuit Court relation to the property proceedings, the husband was self-represented and assisted by a friend who was able to speak (language omitted). The wife had filed some documents but made no appearance. Due to the non-appearance of the wife, the Court telephoned the wife to query why she was not in Court. The wife answered the call and said she was sick and she could not get out and about and that she will ask her nephew to send a solicitor. She then continued to say however, that her solicitor would be in Court by this stage. It was explained to her that no solicitor was present to represent her. Mr Anthony Mirotsis solicitor turned out to be her solicitor in subsequent mentions though he was not shown as her solicitor on her documents. Mr Mirotsis though was seen to have witnessed all her documents.
On inquiry by the Court, it was clear that those assisting the respondent wife had filed but not served any of her documents and accordingly, to expedite matters, the Court made copies to hand to the applicant. Given the wife wanted to then call her solicitor, the matter was adjourned until later in the day to allow her to do this.
The Court called the matter back on again in the afternoon of the same day. The wife was not much the wiser, but insisted that her solicitor was in fact in the Courtroom. On doing another check for Mr Anthony Mirotsis, or anyone called “Tony” (which the wife said was her solicitors name) the Court confirmed that no lawyer was in the Courtroom to represent the wife. It was explained to the wife again, that no solicitor appeared for her. The wife then sought an adjournment. The wife then said she didn’t get any documents about Court, however I was satisfied from the affidavit of service filed by the husband, that the wife was personally served. Upon inquiry by the Court through the interpreter, the wife advised that she was not in a wheelchair or bedridden and is mobile and does move about in the community. During that Court event conducted by phone, the husband alleged that the wife had fallen in a bus and was suing “the government for $2 million”. Through the interpreter the wife explained to the Court that whilst travelling on a bus in (omitted) she fell in the bus. The wife said that her nephew sued the bus company for $10 million. There were different versions of how much the wife received in a personal injuries, ranging from her own admission $10,000.00, but as high as $100,000.00 as referred to by her nephew.
Orders were subsequently made for the wife or her solicitor to attend in person on 14 March 2013. The Court refused the wife’s application to adjourn the matter for three or six months.
Given the wife’s age and seeming difficulties in understanding the Court processes, the Court directed the Registrar of the Court to contact the solicitor who was shown as having witnessed the wife’s documents (Mr Anthony Mirotsis) and who the wife believed was acting for her, to explain that if he was the solicitor for the wife as she told the Court, he needed to appear on 14 March 2013. The respondent was also ordered to provide an affidavit from her treating practitioner if she was to again allege that she could not come to Court. The Court time that day was wasted due to the conduct of the wife.

14 March 2013

On 14 March 2013 the wife appeared self represented, sitting at the bar table. After the matter started though, Mr Anthony Mirotsis appeared out of the gallery and said he was a solicitor with a practicing certificate. He said that he had previously represented the wife and her family. Mr Mirotsis said he had a practice certificate relating to “corporate matters as I work as in-house Counsel”. Mr Mirotsis said he had been contacted by the wife’s nephew some time earlier but he was not in a position until May 2013 to take instructions. Mr Mirotsis seemed to be in a position of moving out of employment as “in house counsel” into setting up his own practice. Mr Mirotsis said opening his own practice at the beginning of May 2013 and then he would be able to take instructions in relation to the matter. It seems therefore that he was witnessing the wife’s documents, but says he was not acting for her, though according to the wife “Tony” was her solicitor.
In relation to the property matter before the Court Mr Mirotsis explained to the Court that, “the wife had not had anything to do with Mr Nugent for 15 years and did obtain a culturally-accepted divorce in 2000, which she felt at the time was sort of the end of matters and since then hasn’t kept full records readily available.”
Mr Mirotsis assured the Court that he was saying this based on instructions of the wife Ms Schneider and the nephew Mr N. Mr Mirotsis asked for time so that the wife could obtain particulars and financial records which she says are quite old, in terms of preparing her response to the property application of the husband. In response to questions from the bench, Mr Mirotsis then told the Court that he had in fact picked up Ms Schneider today and brought her to Court. He advised that the wife did own a dwelling at Property S saying, “It’s a freestanding dwelling, which is on a very small block of land in Property S”.
The Court attempted to find out what property was in existence to divide between the parties noting they had been separated for some time. Through a series of questions through the interpreter and through the wife’s solicitor Mr Mirotsis (as the transcript will show) the wife admitted to owning a house but said she didn’t remember how much she paid for it. When pressed she said that it was purchased for $225,000.00 and her family paid half. On checking that there was no mortgage, the wife said there was a mortgage and the mortgagee was (omitted) Bank in (omitted). The wife couldn’t remember who did the conveyance or whether the solicitor was in (omitted) or elsewhere. She couldn’t remember how much money she obtained through her personal injuries claim (which Mr Mirotsis said, contrary to the wife’s recollection, that he personally did not have carriage of the personal injuries matter but that it had been referred to Shine Lawyers in 2011). The wife said that since she fell over on the bus, she has “forgotten everything”. The transcript will show that the wife said she forgot she had a mortgage but when pressed, knew she had a mortgage. The transcript shows that the wife had not indicated that there was a mortgage on her sworn financial statement, nor had she indicated that she had received funds from a personal injuries claim.
Through an excruciatingly long process of questions and answers, the wife finally said that the house was mortgaged but that she didn’t pay the mortgage repayments. When asked who paid the mortgage, she said a friend. Ultimately this was determined to be a Ms N. The wife said that she thought the friend lived in Darwin. It was explained to the wife that if “a friend” paid the mortgage that such friend would have to give affidavit evidence explaining her involvement.
Through the interpreter the wife had it explained to her that she needed to include all of her financial information about her bank accounts and credit cards and assets on her financial statement, regardless of what she thought of the merits of the husband’s application.
Her response to the husband’s application for a division of property, was that his application was to be dismissed. I subsequently ordered that the respondent had to file an affidavit setting out the financial and non-financial contributions during the marriage, the assets at separation, if those assets are no longer in existence, what happened to them, if they were sold or transferred, where did sale proceeds go and what was the source of funding for the assets which are currently held in the wife’s name. I also ordered that when disclosure pursuant to the Court’s rules was attended to, that a mediation would be organised so that the husband and wife could try and settle the matter. The matter was adjourned until 21 May 2013. This date in particular was to allow the wife’s solicitor to be in a position to act for her and to accommodate his own timetable of setting up his sole practice on 1 May 2013.

28 June 2013

On the next Court date 28 June 2013, Mr Mirotsis solicitor appeared for the wife and Mr Vaezi appeared for the husband. The matter was listed on the duty list with many other matters. It occupied over an hour. When Mr Mirotsis addressed the Court it was apparent that his client had not attended to disclosure. Whilst submitting that he was working to a tight time timeframe and that he set up practice on 1 May, the Court noted all of those issues, however, pointed out that it was now 28 June 2013 and the process of his client producing disclosure documents was still not complete.
Mr Mirotsis said that in relation to the personal injury claim of the wife, it seemed that there was a payout to the wife. He said that the personal injuries litigation was taken on by Farrellys after Shine Lawyers and he explained that he did not have carriage of that matter, even though he was in private practice at the time with another firm (being Preston Law). Mr Mirotsis said that the personal injuries matter must have been handed on to Farrellys. This issue occupied much time and was the source of there being a stalemate with regards to the disclosure. Mr Vaezi for the husband advised the Court that he had been provided with a document regarding the wife’s home loan, however, without any reference to the Court, Mr Mirotsis had provided to him a redacted version with much crossing out on the document. This was typical of the slow extraction of documents and obstacles that the Court was faced with at most if not all mentions in just trying to get the matter ready for a trial. It was primarily attributable to the reluctance of the wife to be forthcoming about her financial circumstances and history since separation in 2000.
This included disclosure from the respondent wife in relation to the mortgage on the home at Property S. This mortgage issue should have been dealt with expediently as the wife had successive lawyers acting for her. However, many issues remained unanswered about the mortgage as it stood in 2008 with some records showing that the mortgage was taken out in 2006. The husband sought to make clarification and had been asking questions from the beginning of the matter. However, the wife had not provided documents in answer to the call for full disclosure of the mortgage and other documents. A stream of excuses for this failure were provided by those representing the wife. Subsequently Orders were made for the wife to provide an affidavit providing commentary in relation to the home loan application and the mortgage on the Property S property. Orders were made for the wife to provide the original unaltered home loan application to the solicitor for the applicant. This process was so frustrating and time consuming that I noted for the record that “there is nothing that Mr Vaezi has asked for that is not reasonable and there have been months, not weeks that have passed” when noting the failure of the wife to comply with her obligation of disclosure.
I also made a direct statement to the wife that it would cost her a lot of money to have arguments about documents not produced, and that she must provide all of the documents relating to mortgages, insurance documents and so on, and that I had made allowances since March this year for the fact that she had difficulties with transport and difficulties with English, and that the matter had been in my docket for 3 months, and that she had not complied with her obligations to date, and that the Court was not going to allow this non-compliance to continue. As a result of the delays by the wife, an extended period of time was allowed for her to once again comply completely with her obligation of disclosure. I permitted another extended time of a further 8 weeks to accommodate the alleged difficulties the wife had in her mobility and being able to use local transport, which was raised by those representing her as being a practical difficulty for the wife.
I also ordered that the respondent was to re-execute all filed documents in the presence of a NAATI certified (language omitted) ((language omitted)) interpreter and affirming that she understands the pleadings filed in this matter. That was because Mr Mirotsis who represented the wife and filed documents on her behalf, did not include a jurat or any sworn document stating that the contents had been translated to her. The Court was disturbed at the wife’s fluctuating position about being able to understand English or not and did not wish this issue to be the course of any misunderstandings by the wife of the Court’s requirements. Mr Mirotsis explained to the Court that he did not have the necessary jurat included because up until that very morning, he was not aware that his client did not speak English or, that she had “forgotten” how to speak English, as the respondent wife told the Court through the translator that day in Court. A notation precisely to this effect was placed on the Orders of 28 June 2013. This bizarre situation amounted to more time wasting by the wife. It was not just costly and time wasting for the applicant husband and his solicitors but it was expensive for the Court in terms of the use of the Court’s time being wasted at every event over issues about which the respondent wife was uncooperative.
I also reserved the costs thrown away in relation to the scheduled Financial Conference that did not occur despite Orders made to by the Court, due to failure of the wife to comply with financial disclosure. It appeared from the figures before the Court, that there was at least $90,000.00 of equity in the wife’s property, if what she alleged about a mortgage was correct.

6 September 2013

The next Court date was 6 September 2013. Mr Mirotsis solicitor appeared for the respondent and Mr Vaezi for the applicant. Much time was spent on that day dealing with issues between Mr Mirotsis and his client the respondent wife. Mr Mirotsis swore an affidavit to the effect that he sought leave to withdraw as the respondent wife was not co-operating with all his requests for conferences and attendances. He deposed that scheduled appointments were made which the wife failed to attend. Efforts were made to obtain a translator for the appointments, further scheduled times were made with the interpreter to translate the affidavits to the wife and on both occasions the wife did not attend. Ultimately the Court was satisfied that Mr Mirotsis had been placed in an impossible situation and that wife would not co-operate so as to enable him to properly represent the respondent wife. An Order was made that Mr Mirotsis had leave to withdraw.
Mr Mirotsis wished to tender before he withdrew, an affidavit which he said was, “reduced and settled by Mr N” subject to correspondence with Mr Vaezi’s office. It was incorrectly witnessed, it was executed and certified as a copy of an original document and not actually witnessed correctly. It does have information that could assist the Court from the person in Darwin”. That was tendered and Mr Mirotsis withdrew.
The mention proceeded and the respondent then acted for herself. The Court then noticed that the wife started then speaking in English to the interpreter. Given the cost to the Court of a (language omitted) Interpreter being incurred at each mention and the time taken subsequently at the mention, I queried how it was she was speaking English given that she had previously informed the Court that she “had forgotten how to speak English.” I asked the respondent wife why the Court had organised an interpreter if she could speak English to which she replied “I don’t know.”
Ms Schneider then assured the Court she could speak English. Mr Mirotsis had confirmed that he had attended at the respondent’s house on three consecutive days and went through various documents and verbal instructions and that this was all done in English. Thereafter followed a protracted mention in which the failure of the wife to provide full disclosure regarding the mortgage and mortgagee eventually lead to the conclusion that leave would be granted to issue more than 5 subpoenas. Because of the failure of the respondent wife to comply with her disclosure obligations, the Court directed that time would be allocated on that day for the respondent wife to be asked questions under oath regarding the myriad of questions surrounding disclosure, the mortgage and the proceeds of sale of their Property K house. These and other questions remained unanswered by the wife. She had also failed to comply with Orders to file an affidavit giving commentary and providing documents which fully explained her financial resources, income, mortgage and repayments and the sale of the previous house which was owned by the husband and wife. These questions remained unanswered about the sale of a home owned by herself and Mr Nugent in 2005 in Property K and questions about what became of the sale proceeds, whether there was ever a mortgage on was taken out on the home at Property S, how the wife could pay the mortgage repayment given her income, details of the third person who was alleged to be paying it on behalf of the wife, what the funds raised by the mortgage were used for and so on. The wife said the house she bought cost $220,000.00.
All of this took more than an hour of the Court’s time and the engagement of a translator. As a result of this process, leave was granted to the husband’s solicitors to issue more than five subpoenas. Given the wife’s fluctuating position of being able to speak English and not being able to speak English, the translator was retained to prevent the inevitable situation of the wife claiming at some point, that without a translator she did not understand what was going on. It was the husband’s case that at separation he and the wife owned a house together in Property K and other assets. He also obtained affidavits from witnesses who knew them when they first arrived in Australia, to say that they had observed gold bars that the wife had bought into Australia. The husband sought a share of the wife’s current assets on the basis that they consisted of funds in which he had a legal interest after their marriage of 40 years. The court’s time to have the wife questioned about the assets was a necessary process as it was abundantly clear that the wife was not going to properly engage in the litigation process whether she was represented or unrepresented. This seemed the most direct method to obtain information required to progress the matter to trial. All of this questioning would not have been necessary if the respondent had complied fully with her obligation of disclosure.

11 November 2013

At the next mention on 11 November 2013, the wife was represented by new lawyers, namely Farrellys Lawyers who engaged Mr Victoire of Counsel to appear. Mr Anderson of Counsel appeared for the Applicant. Orders were made again for the wife to provide an Affidavit with a proper jurat and re-execute documents with a NAATI certified translator. The applicant was granted leave to issue a subpoena to Mr N to produce documents. A notation was made reserving the costs associated with discovery and issuing subpoena (by the Applicant given the lack of disclosure). Again the wife had not complied with Orders.

6 March 2014

On 6 March 2014 each party was legally represented. By that stage, the respondent wife had finally complied with the Court’s orders of 11 November 2013, and filed an affidavit as ordered setting out answers to questions posed in the affidavit filed by the husband on 8 November 2013 and further providing sworn commentary about details about the mortgage on the Property K House, the current house and about bank accounts.
The husband’s affidavit filed on 8 November 2013 sets out the results of the issuing more than five subpoenas given the wife’s failure to willing comply with disclosure. That affidavit sets out some of the information revealed through subpoenas. Details of the wife having bank accounts not disclosed by the wife were discovered through the applicant husband’s solicitors issuing subpoenas to various banks as was the existence of a property in Darwin in which the wife held a legal interest. None of this information was contained in her sworn financial statement.
This affidavit filed in response to the Court’s order is most illuminating. It demonstrates the significant extent of the wife’s attempts to hide assets and her true financial position from the husband and the Court. The affidavit was prepared by her then solicitor, Mr Taft a partner of Farrellys Lawyers who had clearly understood the wife’s obligations of disclosure and taken time to collate information withheld from the Court up to that point.
The affidavit of 28 February 2014 sets out significant information not contained on the wife’s statement of financial circumstances. Much of it revolved around the primary issue of her having a mortgage on her current home which was not admitted to on her statement of financial circumstances. The wife’s financial statement said she had an income of $270.00 per week, no mortgage, $1500.00 worth of furniture and a house. The wife indicated she had no bank accounts and no other financial resources.
Upon finding that the wife did have a mortgage, questions arose as to how the mortgage was being serviced by the 84 year old wife who had no income other than $270.00 per week as shown on her financial statement. The subsequent web of financial transactions involving the wife, a third party, significant borrowings and cash going through accounts, was subsequently revealed and on one view, suggested quite a different financial position of the wife than portrayed in her financial statement.
The husband’s inquiries revealed that the wife had an (omitted) account (omitted) with (omitted) Bank not disclosed. The wife said that she had a friend who was also a member of the (omitted) Religion. The wife said she transferred $500.00 a fortnight through that account to that friend for a period of around 2 years. The wife paid $10,500.00 to that person and also took money out of the account for her day to day living expenses. The wife said she had a loan with that person.
The husband also put forth that the wife also held another undisclosed account with the (omitted) Bank, a Cash investment account no (omitted). The wife said that account was held by the wife with another person. The wife said that she mortgaged her current house to help this person in her business. The wife said she obtained no benefit from that business. She deposed that, “I do not know why my tax file number for this account was not disclosed” and “I have no personal knowledge of the tax implications of not disclosing my tax file number”. The wife said “I do not know why $66,390 and $173,978.20 were drawn” in cash cheques between 2008 and 2011 from that account. The wife deposed that she had not received “any financial benefit from these withdrawals”. She said the money was given to the other account holder for use in their business.
The husband’s inquiries revealed that the wife was one of two persons who had a (omitted) Bank Home Loan Account (omitted). The wife admitted that she took out this home loan jointly with another party. She said that this joint loan was taken out to purchase a home in the Northern Territory. The bank account and home loan and interest in a property had not been disclosed and was not included in the wife’s financial statement or her accompanying affidavit filed at the commencement of the proceedings. The wife said her current home was used to obtain the loan of $568,959.47. She deposes to not knowing the purpose for the $629,680.00 loan. Further, she deposed that her property at Property S was used to withdraw the amount of $629,680.00 on 28 June 2007.
A further account was found to exist in the wife’s name with another party with (omitted). That showed another facility with loan drawings of $629,680.00 in June 2007. The wife said that she did not know where the amount of $647,380.30 came from on the 9^th July 2009. These documents had not been disclosed.
The wife denied that she had gold bullion or gold coins in her possession in or around December 1999 when she returned to Australia from (country omitted). The wife said she had no overseas bank accounts and that the person she purchased the home with in Darwin, kept the proceeds of the sale of that property. The wife said she had not filed a tax return for more than 15 years.
The wife also admitted that she had an (omitted) Bank cheque account jointly held with her son. This was not included on her financial statement.
The wife, amongst other things, deposed that when she sold the Property K property (which was in both names) which existed at separation. She said she retained the proceeds.
The husband alleges that when the parties separated in (country omitted), before leaving (country omitted), he gave the wife a power of attorney for her to use in relation to their business affairs in (country omitted) during his absence. The wife returned to Australia and the husband stayed in (country omitted). The wife used this Power of Attorney to sell the Property K property in or around 2005 for around $230,000.00. The wife said also that the husband kept $90,000.00 “from the mortgage” but there was no agreement that this was intended to be a property settlement. The rest of the affidavit speaks for itself.
The wife confirmed also that she had interpreted to her by a NAATI certified (language omitted)((language omitted)) interpreter, all of the documents filed by either party in these proceedings. The Court ordered the wife to obtain an independent translation of an exhibit attached to her affidavit “S02” rather than provide her own commentary. The Court noted on that date, that the parties were having discussions about another joint account in (country omitted). The husband and wife in this matter had been working in several (employments omitted) in and around (omitted) for 15 years.
Another issue arose then in relation to the joining of the third party who held interests with the wife in a house in Darwin and in bank accounts.
As a result of information revealed as a result of the husband’s enquiries, the applicant husband subsequently filed an amended initiating application on 9 April 2014, through Vaezi Lawyers, seeking essentially a (omitted) application with funds to be paid to the husband’s solicitors by way of interim order as he did not have funds to conduct the litigation. The application sought that the wife draw funds from her existing mortgage. Orders were also sought to join the third party who was paying the wife’s current mortgage on her Property S property.
On 17 June 2014 the respondent wife filed an amended response. The wife did not consent or oppose the joining of the third party. The wife also agreed with the Orders sought by the applicant for injunctions and restraints against the wife from selling or dealing with the Property S property and the order for valuations.
On 8 July 2014, Trial Directions were made. The trial directions required the applicant husband to file affidavit material of evidence in chief for the property trial 28 days prior to the trial and the respondent was to file affidavits of evidence in chief for the property 18 days prior to the trial date for the respondent. These case management orders have the same power as another orders of the Court and are issued at a time when the judicial officer who has conduct of the matter is satisfied that all aspects of the trial are ready to proceed to trial.
On 5 November 2014 the Court advised the parties of the trial dates of 9, 10 and 11 March 2015. The date for the applicant to file his material was therefore 9 February 2014 and the respondent wife 19 February 2015. A compliance check was advised to occur on 16 February.
No material was filed by the applicant husband pursuant to those Orders for trial, nor was any material filed by the wife as directed for the contested hearing.
On 9 February 2004 the respondent wife’s solicitors no longer represented her. This was apparent from a notice of address for service filed on behalf of the wife, indicating that her address for service would now be Mr G (the wife’s nephew). I do know what time this was served on Mr Vaezi the solicitor for the husband.
The following day on the 10 February, the husband’s lawyers (the applicant) filed a notice of discontinuance and advised Mr G that they no longer held instructions to act. The husband’s solicitors subsequently advised the Court (Exhibit 2, of 16 February 2015, compliance check date) that it was difficult for them to get instructions as the husband was overseas at the time, but instructions were taken to completely discontinue his property settlement and for the lawyers to cease all activity. The husband’s evidence is that his lawyers wanted upwards of $35,000.00 paid to them to act for him at the trial and he had no funds to pay this amount and he decided he could not continue the litigation. The husband said in his material that he was overseas on this day and that he just wanted the litigation to stop as he could not afford lawyers.[3]
[3] I also marked as an Exhibit 1 of 16 February 2015, copy of the Court’s letter of 5 February 2014 to Farrellys Lawyers for the wife (who remained on the record at that time) and Vaezi Lawyers for the husband.
Also on 10 February 2015 Mr Wrenn of Counsel who was then retained, attempted to file a proposed “interim application” in the form of an Application in Case for the wife, together with a supporting affidavit. The Application in a case, sought amongst other things, an Order for a Declaration that the Divorce Order made by the Federal Circuit Court in 2012 be declared void or voidable ab initio. This material was contrary to the trial directions dated 8 July 2015 which specifically stated that the respondent was to file her trial material no less than 18 days before the date set for hearing, which meant the respondent’s trial material for the property hearing was to be filed by 19 February 2015.
Other than filing trial material as ordered, another order provided that no material was to be filed beyond the date without the leave of the Court. On 10 February 2015 Mr Wrenn or his client tried to file this new interim application in the Cairns Registry. No prior notice had been given to the Court as to the respondent now seeking to have an “interim hearing” days before the final property hearing which was set for hearing on 9 March 2015. The registry did not accept the documents for filing.
The Court file indicates that Mr Wrenn contacted the Registry about 1:36pm on 10 February 2015 to find out the progress of the documents that were attempted to be filed on behalf of the wife.
Mr Wrenn then sent an email to my associate at 1:43pm in the form of his letter dated 10 February 2015 (now included in the wife’s material for costs) explaining that the wife had tried to file the application in a case that day and it was rejected. Mr Wrenn sought leave to file the interim application contained in his Application in a Case document and affidavit (indicating that the material should be served that day) and requesting that his application be listed on the same day as the compliance hearing which was listed for 16 February 2015.
Mr Wrenn added to his correspondence to my Associate, that “the result of the application (in a case) may result in there being no final hearing and the days allocated being vacated for other court matters.”
On the afternoon of 10 February 2015 at 3:57pm a draft of the Application in a case and a draft of an affidavit, was sent by email from Mr G to the lawyers (Mr Vaezi ) for the husband. Mr G concluded with the message that the material “had been provided to the Cairns Registry of the Federal Circuit Court of Australia for filing.” This very carefully worded email did not advise the solicitors for the husband, that the material was in fact rejected by the Registry seen in Mr Wrenn’s letter of 10 February 2015, when he sought leave to file the proposed Application in a case and the supporting affidavit as set out in the affidavit of the wife, exhibit S7, filed on 9 March 2015. The same letter was also annexed to the affidavit filed by leave on 14 April 2015 at annexure S13.
On the same afternoon (it seems at 16:54pm) an email with the subject “Notice of Address for Service – Ms Schneider” was sent by Mr Vaezi the solicitor for the husband to Mr G, saying “Hi Mr G, Please see attached our clients Notice of Discontinuance in this matter. With the filing of this document, our engagement with Mr Nugent in relation to these family law proceedings is completed and we are no longer acting for him. Any future actions need to be served on Mr Nugent directly.”
Shortly thereafter, also on 10 February 2015, a further email was sent by Mr Vaezi for the father, with the subject “Application and Affidavit to be filed” saying “Hi Mr G, I note in the email you have provided me with a draft of a proposed application. Please note that should Ms Schneider wish to initiate this application, we do not have instructions to accept service of these documents as we have ceased acting for Mr Nugent.” The correspondence emails of 10 February 2015 are annexure S13 to the affidavit of the wife filed by leave on 14 April 2015.
The primary contention of Mr Wrenn in support of an Order for costs and in particular indemnity costs, revolves around his theory that because the Notice of Discontinuance was filed after the solicitors received notice of the wife’s draft proposed Application in a case together with a draft affidavit, (seeking to declaring the Divorce to be void ab initio), that must obviously mean that the husband knew he was guilty of a fraud in relation to documents supporting the Divorce Order and he therefore discontinued.
The actual position is that the solicitors on the record withdrew and then expressly advised Mr G that they had no instructions to accept service of his draft application documents and that they no longer acted for the husband. There is no evidence before the Court that the husband was ever served with the “draft application and draft affidavit.” It is to be remembered that the documents were not accepted for filing by the registry. These documents have never been filed. The wife’s affidavit material annexes the draft of her application. This proposed Application in a case is referred to by the wife in her costs application but it has never been filed. The husband has read about it in the wife’s application and responded accordingly with denials.
The theory of the wife and Mr Wren continues that because the husband’s lawyers filed a Notice of Discontinuance proceedings shortly after the draft application was sent to them, the husband is therefore guilty of a fraud. The submissions continues that therefore indemnity costs for the whole litigation must be awarded to the wife. This is summarised at paragraph 48 of the wife’s affidavit prepared by Mr Wrenn and filed on 9 March 2015. It says “On the basis that the Applicant Mr Nugent commenced these proceedings by filing a false document purporting to be proof of marriage, I ask that he be ordered to pay the costs of these proceedings on an indemnity basis.”
The written submissions of Mr Wrenn (Exhibit A2) and the additional submissions filed by leave prepared by Mr Wrenn to support indemnity costs, can be seen to canvass mostly exclusively his theories about the husband filing fabricated and or false documents. “Examination of the affidavit contained at Annexure S6 demonstrates that the Applicant commenced the proceedings by filing the fabricated and/or false translation.”
There are a range of reasons put forth by way of speculation by the wife in the affidavit about the authenticity of documents going back to the Divorce, which are all opinion evidence of the wife. In any trial, the wife’s speculations would be inadmissible.
The day that the Notice of Discontinuance was filed was the day after the husband’s trial material in the property proceedings was to be filed. The husband submits that he had no money to pay to the lawyers to prepare for the trial and that they could not act for him without funds. The husband’s financial statement indicates the husband is without assets including a home. He too is on an aged pension.
The wife also did not file trial material. She also has not been able to retain lawyers. Her legal advice was that they questioned whether it was sensible for her to continue the court proceedings when, if the bank were to sell the house, she would have little left. It was suggested to her that there were at least two ways of settling the matter which provided for the husband to have a share of the property. The wife did not put forth any such offers.

Compliance Check – 16 February 2016

In terms of conduct there are other matters which I note in relation to this matter. Neither party appeared at the compliance check, however, correspondence was received from the former solicitors for the husband and marked as an Exhibit. The husband’s solicitor’s letter was marked as an exhibit. When the matter was called on, each of the parties were called three times. As I said, there was no appearance by the wife or anyone representing her.
The wife says in her affidavit filed by leave on 14 April 2015 that she attended at 9am at the Cairns Registry to attend the compliance hearing, and that her application in a case and supporting affidavit filed on 10 February 2015 were returned to her. This is not correct. The wife goes on to say that after leaving phone contacts with the Registry, she was informed that “I would be contacted if required to attend the compliance hearing.” Letters had been forwarded previously to each of the parties’ lawyers advising of the time and date of the compliance check. I do not accept that she was told that the Court would ring her if she was required to attend the compliance hearing.
I do not accept that the non appearance of the wife was ever excused by the Court on 16 February 2015. The Court listed the compliance hearing for 9:30am. The matter started at 9:43am after each party was called 3 times. Neither the wife nor any of her legal representatives appeared.
By the date of the compliance check on 16 February 2015, the applicant had filed a Notice of Discontinuance and there had been no trial material filed by either party. The correspondence from Mr Wrenn and the proposed draft Application in a case referred to by Mr Wrenn in his letter to my Associate seeking leave to file it, had been placed in the file to be dealt with at the compliance check. No one appeared for the wife.

The Court dealt with that proposed Application by noting that the Applicant in the substantive proceedings had filed a notice of discontinuance and the only orders sought by the respondent wife were that the husband’s application be dismissed. No one appeared for the wife. Correspondence was received on behalf of the husband’s lawyers advising of their position. The husband did not appear. Once the property application was discontinued and noting the wife’s response to the husband’s application was to “dismiss” his application, and noting no parties attended, the Court made an Order dismissing all outstanding applications and responses.
That left the issue raised in a letter written by a Barrister who did not appear, referring to a proposed draft Application in a case to set aside a Divorce, as the only possible future application, if leave was granted. No leave to file it was granted and the proposed application has never been filed.
An application to set aside a divorce, is not an “interim application in a case” in relation to a Section 79 property application. The matters before this Court were property matters as the Originating application and Response indicate. As the Orders of 16 February 2015 note, all outstanding applications and responses were dismissed. Therefore there was no substantive application current on property on any other issue.
Moreover, case management and the Rules of this Court do not provide for an “interim application” about permanently setting aside a Divorce Order based on alleged fraudulent conduct of a party to be made by way of an “Application in a Case”. That application is entirely a separate application. If ever it was drafted properly and served properly, it would require case management, time for the respondent to file a response and prepare, there may be interim applications to summarily dismiss such an application if the evidence was entirely lacking and then the Court would ultimately decide if there was sufficient evidence to warrant a contested hearing. To suggest that an issue of such gravity would be dealt with at a ten minute compliance check on 16 February 2014, just before a property trial commences on 9 March 2014 is quite frankly, absurd.
The Orders made by the Court on 16 February 2015 were that if the wife intends to follow through with the proposed application regarding the divorce, it ought to be filed in the Family Court of Australia who have sole jurisdiction about issuing declarations about nullity of marriages or marriages being void and which in the circumstances would be the most appropriate Court to deal with the serious issue of attempting setting aside a divorce, based on allegations of fraud.
I therefore ordered therefore that the documents attached to the email of Mr Wrenn being the proposed application in a case and affidavit be returned to the wife for filing in the correct Court, if she intended to follow through.
I have indicated to Mr Wrenn that his proposed application to set aside a divorce would face significant hurdles, given that all aspects of the divorce which needed to be addressed were dealt with to the satisfaction of the Court years ago. He has nonetheless persisted with his strong submissions about the fraud of the husband. It is clear to me that regretfully Mr Wrenn does not understand the gravity of making fraud allegations. I am very troubled by this. Conducting matters making wild allegations of fraud could be seen to be quite strategic, and someone less charitable than myself, might think that this was just another effort by the wife to be obstructionist and place yet another hurdle in the path of the husband.
Overall, the conduct of the wife has been a major cause of expense and waste of court time and resources. The wife has failed to provide candid evidence in her financial statement about her true financial position and financial dealings as can be seen from these reasons. The wife has made other statements that are inconsistent with Court records.

(d) Whether the proceedings were necessitated by the failure of a party to the proceeding to comply with the previous orders of the Court.

The proceedings initiated in this matter were not initiated due to the failure of either party to comply with an order however, as can be seen throughout these reasons, the litigation was protracted and delay sustained due to the wife’s non-compliance with her obligation of disclosure and her lack of being candid about the extent of her assets and number of bank accounts, her interest in property and the relevant details of an alleged mortgage on the home in Property S. The wife failed to comply in a timely manner with Orders for her to file an affidavit about her financial position and the myriad of issues that arose once it was ascertained that contrary to her financial statement, she had a mortgage on her current home.

(e) Whether any part to the proceedings has been wholly unsuccessful in the proceedings

The matter did not proceed to a final hearing. The Court did not make a finding that the husband’s application should be dismissed or that he has engaged in any misconduct in trying to prosecute a property application under the Family Law Act. I am aware and have taken account of his subsequent withdrawal from the proceedings resulting in the same outcome.
When the husband appeared at the costs hearing, he explained that if he had known the wife would ask for costs, he would never have discontinued. He explained his financial difficulties and that he had been happy to accept even an interest in the wife’s house to be received after her death, had she been agreeable. The record will show that the Court determined from the husband’s response that he wished to make an application to withdraw his notice of discontinuance. Accordingly the matter was stood over for a period. The husband who was self represented by this time, did not pursue this avenue.
In this matter, I find that there are circumstances which have existed throughout this litigation that strongly suggest the applicant has done her level best to make the litigation protracted and that she has through her failure to comply with Orders and obligations of disclosure caused unnecessary expense to the husband. I have taken this into account in relation to his ultimate decision to walk away. The husband does not speak English as his first language either. He could no longer afford legal representation once the point of having to have his trial material prepared.
All of the allegations about fraud and translations of documents supporting the marriage certificate have been denied. The husband submits that the Divorce Order includes a finding that the marriage is proved as shown on the Divorce Order dated 24 January 2012, attached to his affidavit filed on 11 June 2015. He is correct.

(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

Counsel for the wife Mr Wrenn made written submissions (Exhibit A2, 21 October 2015) and also in further written submissions filed by leave on 19 May 2015. In each Mr Wrenn has referred to “Two offers to settle the proceedings were made by the Respondent and are contained at Annexure S4 of the affidavit of Ms Schneider of 17 June 2015.”
However, an examination of those offers reveals that they are not from the respondent wife but rather, they are offers to settle made by the solicitors for the husband to the wife. The submissions on both written submissions repeat this incorrect submission that the wife made offers to settle.
It is clear from the wife’s former solicitors’ advice that she was urged to make an offer on several bases, but she did not do so.

(g) Such other matters as the Court considers relevant

Mr Wrenn has conducted this application on the basis that the husband has falsified documents and or committed a fraud. As I have said elsewhere, there is no evidence of such finding, there has been no contested hearing about the issue he refers to and his allegations are based on suspicions of the wife, nothing more.
Mr Wrenn has used the strongest language possible to portray the husband as a rogue. His written submission states:
“The proceeding conducted by the applicant threatened the sale of her dwelling house so as to obtain money he was falsely claiming as his equity. The improper conduct directed at the respondent aged 84, is a serious circumstance of aggravation, and such misconduct justifies an award of costs that fully compensates her. The respondent has committed a fraud upon the Court, and not just doing during, but throughout the entire proceeding, the Respondent committed a false claim. It is in the public interest that persons be deterred from such misconduct.
The filing of false documents by the Respondent shows he willingly participated in a fraud on the Court, and the Court has the power to refer the matter to the Commonwealth Attorney-General with a re commendation for investigation, particularly in relation to offences under the Chapter 7 of the Criminal Code Act 1995. It is submitted that the relevant material should be forwarded to the Attorney-General for investigation.”
As I have referred to earlier, the submissions are without foundation. Speculations by Mr Wrenn and the wife about documents and their translations do not amount to evidence. These submissions ought not to have been made. I consider that Mr Wrenn has likely acted outside of the requirements of the Barristers Rules in making these wild accusations. I refer to the Bar Association of Queensland Barrister’s Conduct Rules at Rule 64 referring to the grounds which must exist before a barrister alleges any matter of fact amounting to criminality fraud or other serious misconduct against any person.
Mr Wrenn of Counsel has prepared an affidavit for the wife of 9 March 2015, in which he has waived the wife’s legal privilege. Mr Wrenn has annexed a letter from her former solicitors setting out their legal advice to her. At annexure S11 of that affidavit, a letter of 23 December 2014 written by the wife’s former solicitors Farrellys Lawyers is annexed. It provides a legal opinion to the wife that the husband has a legitimate claim to bring in the Family Court of Australia given the period of time they have lived together. It advises that the issue of doubts about the marriage certificate or interpretation of such certificate may impact on the husband’s credibility but would not stop his property claim. The letter suggests that the wife should resolve the matter by way of leaving the husband with one half of her property upon her death or alternatively, if the wife has to leave the home prior to her death. This is in accordance with the position taken by the husband when he made submissions that he had made this suggestion to the wife as a way of resolving their dispute but she had refused and he could not continue to litigate. The letter from Farrellys explains that they cannot continue to act for the wife as she will not sign a costs agreement with their firm.
This legal advice given to the wife, is contrary to the position of Mr Wrenn who now submits that the whole of the conduct of the husband was improper.
I have no evidence before me be satisfied that the husband has engaged in any improper conduct in pursuing a claim for property division as provided for under the Family Law Act. The submission is without any foundation. It is not unusual for parties to separate and not do a formal property settlement as has happened in this matter. It is not unusual as case law will show, for subsequent property applications under the Family Law Act to be made many years later, even as late as 30 years later by a party to a marriage for property settlement
The contentions put forward by Mr Wrenn are in my view without foundation. It is naïve and improper to submit to the Court that it should draw inferences of fraudulent behaviour based on nothing more than speculation, inferences and self-serving opinion evidence of the wife and or those representing her. Moreover, for this Court to take account of any such conduct there would first have to be a hearing and findings made a by judicial officer that such conduct took place. This has never occurred.
I have tried to explain to Mr Wrenn that for a judicial officer to make findings of fraud or preparing false documents would first require a contested hearing, with all of the evidence placed before the Court and admitted subject to the rules of evidence and that it cannot happen “on the papers” by Counsel making submissions at the conclusion of a matter, when deciding a costs application. It is alarming at the ease with which these very serious allegations have been made, coupled with a complete lack of evidence to support the allegations. It is farcical to suggest that justice would operate this way.
Apart from this whole issue which has consumed so much of the Court’s time, there is no evidence that any preparations for trial were ever made by the wife. Once Farrellys lawyers withdrew, her next Counsel Mr Wrenn decided to take a completely different path and instead of running the property trial, a decision was made to try and avert the trial by attempting to lodging an application for a declaration about the parties divorce of 2012 being void.
Apart from the submissions about the wife being entitled to indemnity costs because of the fraud of the husband, it seems to me that the only submission that could have any weight on behalf of the wife, was that the husband discontinued. I have taken note of that. I have also taken notice of his circumstances when doing so.

Summary

I have considered all of the relevant sections under section 117 of the Act. I note the starting point of each party paying their own costs. I note also the matters which the Court must have regard to when considering making a costs Order. I have had regard to those factors.
The wife’s conduct as a litigant has been obstructive, secretive and time wasting. It has resulted in extra expense for the husband in having to issue subpoena for information that ought to have been disclosed and many more mentions than ought to have occurred which were due to the wife’s failures. The wife has refused to comply with her obligations of disclosure. She has not been candid about her real financial situation and has been prepared to swear a financial statement which has concealed her mortgage and all of the transactions that surrounded her borrowings. There are costs reserved throughout the appearances in this matter and they have clearly been reserved because of the time wasting by the wife.
Finally, I have noted also that the wife has been most energetic in pursuing her costs application. All of the difficulties that she was having throughout the litigation in having access to transport, about being able to attend Court and not understanding what she had to do are no long barriers to her participation.
Having considered all of the relevant factors and in particular the wife’s conduct, I am not satisfied that the Court should exercise its discretion to make an Order requiring the husband to pay the wife’s costs.
I therefore order that the wife’s application for costs be dismissed.
I also intend to make an order that the Principal Registrar of the Court refer this decision to the Bar Association of Queensland.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Willis

Date: 14 July 2016