Schrier and Schrier and Anor

[2011] FamCA 1057

FAMILY COURT OF AUSTRALIA

SCHRIER & SCHRIER & ANOR [2011] FamCA 1057

FAMILY LAW – Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Schrier

RESPONDENT: Mr Schrier

SECOND RESPONDENT: B Pty Ltd

FILE NUMBER: MLC 5854 of 2011

DATE DELIVERED: 3 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Puckey

SOLICITOR FOR THE APPLICANT: Kliger Partners

THE RESPONDENT: In person

Orders by consent:

1. That the Second Named Respondent be restrained from requiring the Applicant wife to vacate and remain away from the property situated at and known as C Street, Suburb D ("the real property") and being land more particularly described in Certificate of Title Volume … Folio … without first obtaining leave from the Family Court of Australia.

2. That the Second Named Respondent be restrained from encumbering in any way whatsoever by way of mortgage, charge or any other dealing, its interest in the real property without first obtaining leave from the Family Court of Australia.

3. That the Second Named Respondent be restrained from selling or otherwise dealing with the real property without first obtaining leave from the Family Court of Australia.

4. That the Second Named Respondent be restrained from relinquishing its position as the Trustee of Schrier Family Trust without first obtaining leave of the Family Court of Australia.

5. That the Second Named Respondent hold its interest in the real property upon trust for the Applicant pursuant to the terms of these Orders.

6. That the interest of the Second Named Respondent in the said real property is hereby charged with the Applicant's interest pursuant to these Orders.

7. That the Applicant has liberty to lodge a Caveat upon Title to the said real property to protect her interest therein.

8. That the Respondent be restrained from encumbering or otherwise dealing with his interest in or the assets of the company known as E Pty Ltd, or any other entity in which he has an interest, save and except in the ordinary course of the relevant entity's business activities and the Respondent keep the Applicant's solicitor fully advised of any such business undertakings and activities.

9. That the Respondent forthwith do all things and sign all documents required to cause:

   (a)copies of all contracts and other documents generated in connection with the sales of the real properties at F Town and Suburb G to be provided to the Applicant's solicitor;

   (b)       the proceeds of the sales to be applied:

   i.first, to the costs of sale;

   ii.second, to discharge any registered encumbrances upon the property sold;

   iii.third, to pay the balance to the Applicant's solicitor upon trust.

10. That the Applicant make available for collection by the Respondent (save as to the original Certificate of Title) in the company of a police officer at 3.00 p.m. on 4 October 2011 from the Study at C Street, Suburb D the boxes of documents relating to the Respondent and/or his business or financial affairs.

11. That the Respondent file and serve, by 30 November 2011:

(a)      a Response;

(b)      a Financial Statement;

(c)      a list of all documents in his possession relating to his and the entities' financial affairs.

1. That the Applicant's Application filed 4 July 2011 be otherwise adjourned to 5 December 2011 at 9.00 a.m. before Justice Cronin.

2. That the Respondent pay the Applicant's costs fixed at the sum of $3,250 within 60 days from this date. That the husband pay the wife’s costs of $3250 within 60 days.

3. That the reasons for the costs order be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Schrier & Schrier has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5854 of 2011

Ms Schrier

Applicant

And

Mr Schrier

Respondent

And

B Pty Ltd

REASONS FOR JUDGMENT

1. There is only one matter upon which I need to make a ruling, and that is in relation to the costs. 

2. Section 117 of the Family Law Act 1975 (Cth) is the governing provision relating to costs. It provides that each party shall bear their own costs unless there are circumstances that justify departure from that principle. In contemplating whether the circumstances are justifiable, the court is entitled to take into account the matter set out in s 117(2A) which includes the financial positions of the parties, the approach that they have taken in terms of the litigation, including the filing of documents, their eligibility for legal aid, whether a party has been wholly unsuccessful and such other matters as the Court sees as relevant.

3. The facts are most unusual and the case is very much in its infancy.  The wife’s position is that there is an enormous amount of material, and she is not at all aware of what the husband’s financial control or position is.  The husband has not filed any documents other than a brief affidavit in which very little of the assertions of the wife are denied.  What has occurred in the last half hour is a discussion between myself and the husband arising out of a set of minutes drawn by counsel for the wife.  As it turns out, after a reasonable explanation, none of the issues are really contentious.  In reality, they could not be contentious because there is a primary obligation in all proceedings in this court for all parties to be completely candid and open in relation to all of the matters that would enable a party to understand what the financial position of the other is, and for the court to ultimately make a determination which is just and equitable.

4. In this circumstance the documents were issued, apparently, by the wife in frustration, because she was not getting answers to correspondence that was sent in April.  The proceedings were then issued, and on 23 July 2011 a solicitor indicated that he was accepting service of the documents on behalf of the husband.  There is a third party in these proceedings, which is the trustee of the family trust, and the best I can ascertain, the family trust effectively owns the matrimonial home of many years standing.  There is some confusion in the evidence as to who exactly is the director of the trust company, but the husband has made it very clear today that he is the sole director.

5. The company was served with the documents, in which it was named as a respondent, by correspondence according to the corporations law requirements. That letter was send on 20 July 2011.  During the subsequent weeks, Mr Schrier was apparently overseas.  However, the documents had clearly been drawn to his attention by virtue of the fact that his solicitor has accepted service.  If they were not then sent to him, or there was no action taken by him, it seems to me a matter that he needs to sort out with Mr H.  In the same way, if he, the husband, is the sole director of the company, then he should have some arrangement with the office holders of the registered office of the company to at least notify him if correspondence comes addressed to the company.

6. Again, he is silent in respect to that issue as well.  What has therefore occurred is that the wife has engaged counsel, seen her solicitor, prepared numerous pages of documents, including undertaking sutures, much of which, presumably, be valuable in the ultimate determination of the matter, if a trial can be avoided.  But what is clear is that today’s hearing has largely been wasted because of the fact that what should have happened between July and now did not take place.  The husband’s position is that he was overseas.  Whilst I understand that, there are modern electronic means of communication that would have enabled him to at least have put his position in the form of documents, and/or at least respond to the correspondence of his wife’s solicitors.

7. It seems to me this is one of the cases where there is a justification for departure from the normal principle that each party pays their costs, predominantly because the husband has done very little to get his house in order, and the wife has incurred costs for today which could otherwise have been avoided.  Costs are normally governed by a scale, and the wife will undoubtedly incur more than the scale.  But this is not a case, at this stage, where I would make an order for indemnity costs.  What the wife seeks is, effectively, $3250, or thereabouts, and that seems to me to be a reasonable amount in the circumstances.  I propose to make an order for costs in this particular case.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 October 2011.

Associate: 

Date:  11 January 2012