Simone & Astoria (No 2)
[2023] FedCFamC2F 1436
•8 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Simone & Astoria (No 2) [2023] FedCFamC2F 1436
File number(s): PAC 5244 of 2020 Judgment of: JUDGE STREET Date of judgment: 8 November 2023 Catchwords: FAMILY LAW – PROPERTY – de facto relationship – second respondent bound by final orders – costs Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 11 Date of hearing: 6 November 2023 Place Sydney Counsel for the Applicant Mr C Alexander Solicitor for the Applicant Hills Family Law Centre Counsel for the First Respondent Mr D Coulton Solicitor for the First Respondent Delaney Roberts Family Lawyers Counsel for the Second Respondent Mr C Othen Solicitor for the Second Respondent Mistryfallahi Lawyers & Business Advisors ORDERS
PAC 5244 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SIMONE
Applicant
AND: MS ASTORIA
First Respondent
MR ASTORIA
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
6 NOVEMBER 2023
BY CONSENT OF THE APPLICANT AND THE SECOND RESPONDENT, THE COURT ORDERS THAT:
1.The second respondent is to be bound by any final court orders as between the applicant and the first respondent in respect of the equity in the Suburb D property, located at C Street, Suburb D, NSW, beyond the $350,000 interest of the second respondent pursuant to the settlement terms in the orders dated 5 October 2023.
2.The proceedings as against the second respondent by the applicant are otherwise dismissed.
THE COURT ORDERS THAT:
3.No order as to costs as between the applicant and second respondent
4.The court reserves its written reasons in respect of the above costs order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
These proceedings were commenced on 1 October 2020 seeking an alteration of property interests by the applicant in respect of a de facto relationship with the first respondent. The second respondent is the first respondent’s husband, who was joined in the proceedings on two grounds by the applicant. The first is that the second respondent is a joint owner of real property in respect of which the applicant is seeking an alteration of property interests as between the applicant and the first respondent. The second was on the basis of an alleged equitable trust by the second respondent for the first respondent in respect of property.
The proceedings were fixed for a five-day hearing commencing today. Separate proceedings were commenced as between the first and second respondents, and were resolved by consent orders made on 5 October 2023. Those consent orders provided for the sale of a jointly held property, being C Street, Suburb D, NSW (“Suburb D Property”) and for the proceeds to be retained by the first respondent wife, subject to a payment of $350,000 to the applicant husband, being the second respondent in these proceedings. The property pool for alteration of interests as between the applicant and the first respondent is, accordingly, in substance the net proceeds of sale of the Suburb D property, subject to the distribution of the $350,000 to the second respondent.
Mr Alexander identified that it was the distribution of the balance of the proceeds of sale under order 2(d) of the consent orders made on 5 October 2023 that, effectively, the applicant was seeking to ensure could be the subject of binding orders upon the second respondent in the alteration of property interests as between the applicant and the first respondent. This issue was raised at the commencement of the hearing, given the consent orders made on 5 October 2023. It is the case that, while there was a broader basis for the joinder of the second respondent, the only basis still being pressed by Mr Alexander was the need for the second applicant as a necessary or proper party, so as to be bound by the orders that might be made between the applicant and the first respondent.
The Court identified that it would be a sensible course to make an appropriate order by consent as between the applicant and the second respondent, identifying that the second respondent would be bound by any final property orders as between applicant and first respondent in respect of the net proceeds after payment out of the $350,000 to the second respondent. It was as a result of these issues being identified that Mr Alexander accepted that such an order would be appropriate and did not seek to press a separate equitable interest or trust case, in respect of the $350,000. That was an obvious, sensible approach by the applicant. The applicant and the second respondent agreed to the making of a consent order, that any final order in relation to the alteration of property interests between the applicant and the first respondent would bind the second respondent in respect of the balance after payment out of the $350,000 to the applicant from the proceeds of sale of Suburb D.
The parties also agreed that the proceedings as between the applicant and second respondent should otherwise be dismissed. Mr Othen on behalf of the applicant then, after those orders were made by consent, sought costs under s 117 of the Family Law Act1975 (Cth). Mr Othen maintained that the proceedings might have been capable of an earlier resolution as between the applicant and the second respondent along the lines identified by the Court. Mr Othen submitted that there was no equitable interests or trust case. It is not necessary or appropriate for a Court on costs issues to determine issues that no longer have to be decided in proceedings. There can be no doubt, as identified by Mr Alexander, that the second respondent was a necessary and proper party up until the resolution of the separate proceedings as between the first and second respondents which occurred on 5 October 2023.
The Court accepts that the second respondent has incurred costs, having been joined in the proceedings, but it is a material and relevant consideration that the second respondent was a necessary and proper party in these proceedings, and, until the making of the order made by consent today, the second respondent would not have succeeded in an application to be removed from the proceedings on the grounds of no alteration of property interests as between the applicant and the second respondent, or on the basis of the dispute about an equitable interest or trust.
In determining whether or not there are circumstances under s 117(2) of the Family Law Act 1975 (Cth) that justify the Court in making a costs order, the Court must take into account and have regard to the matters in s 117(2A) of the Family Law Act 1975 (Cth). In the present case, the Court has not yet determined the alteration of property interests as between the applicant and the first respondent. At the time of making this order, the circumstances of the applicant are extremely modest, if not parlous. The circumstances of the second respondent are sufficiently more substantial in that he retains a property at E Street, Town F, NSW, and has other assets.
In relation to s 117(2A)(b) of the Family Law Act 1975 (Cth), it is not apparent to the Court that either party is represented by Legal Aid. In relation to s 117(2A)(c) of the Family Law Act 1975 (Cth), the Court is alive to the conduct of the proceedings in its history and the wider allegations and issues that have been raised, and that this was a case where there was, for a period of time, substantial issue over the existence of a de facto relationship between the applicant and the first respondent, and that there remains an issue in the proceedings relating to its date of commencement and when it ended. It is the case that neither the applicant nor the first respondent is calling the second respondent in the remaining case to be determined as between them.
In relation to s 117(2A)(d) of the Family Law Act 1975 (Cth), the proceedings cannot be said to have been necessitated by a relevant failure to comply with previous orders. In relation to s 117(2A)(e) of the Family Law Act 1975 (Cth), it cannot be said that either party has been wholly unsuccessful. The order made by consent facilitates the making of the orders by this Court, between the applicant and the first respondent, and it has been unnecessary for the Court to determine the equitable claim or trust in respect of the small amount of $350,000 that is to be paid from the Suburb D property to the second respondent.
In relation to s 117(2A)(f) of the Family Law Act 1975 (Cth), whilst the Court accepts that there have been endeavours by the parties to resolve the matter, it was not until the making of the orders in the other proceedings on 5 October 2023, that it became realistic for a resolution of the proceedings of the kind that is subject of the orders now made by the Court. The Court is not satisfied that there is any other matter that the warrants finding circumstances by reason of which the applicant should be required to pay the second respondent’s costs. The Court is not satisfied that the applicant has, in the course of the proceedings as against the second respondent, acted unreasonably. The Court finds having regard to the matters in s 117(2A), it is not satisfied that there are circumstances to justify the Court making a costs order in favour of the second respondent as against the applicant.
The Court finds that this is a case, having regard to the matters in subsection (2A), whereby it is just that there be no order as to costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 8 November 2023
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