Sirola & Sirola & Ors
[2018] FamCA 1011
•4 December 2018
FAMILY COURT OF AUSTRALIA
| SIROLA & SIROLA AND ORS | [2018] FamCA 1011 |
| FAMILY LAW – PROPERTY – Interim Proceedings – Where the husband makes an application for partial property distribution – Where the husband asserts that it is in the interests of justice for there to be a partial property distribution to enable him to meet the cost of contesting serious criminal charges – Where the wife and interveners opposed that application – Where the Court finds that the husband has failed to discharge his onus of establishing that there would be sufficient property available at final hearing for the Court to make any necessary adjustment in order to do justice between the parties – Where the Court finds that, as a result of his nondisclosure, the husband is unable to satisfy the Court that it would be just and equitable for a partial property distribution to be made – Application dismissed. FAMILY LAW – COSTS – Where the wife and the interveners have sought that the husband pay their costs associated with this application – Where the Court finds that the husband has failed to comply with his duty of disclosure – Where the Court finds that it was unreasonable for the husband to have commenced this application – Court orders that the husband pay the costs of the wife and the interveners. |
| Family Law Act 1975 (Cth) ss. 79, 80(1)(h), 117(2), 117(2A) Family Law Rules 2004 (Cth) rr. 1.04, 13.01(1), 13.04(a) |
| Briese and Briese (1986) FLC 91-713 Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466 Stanford and Stanford (2012) 247 CLR 108 Sully & Sully (No.2) [2016] FamCA 706 Wenz v Archer (2008) 40 Fam LR 212 |
| APPLICANT: | Mr Sirola |
| RESPONDENT: | Ms Sirola |
| INTERVENERS: | Ms T Sirola and Mr U Sirola | ||||
| FILE NUMBER: | SYC | 5380 | of | 2014 | |
| DATE DELIVERED: | 4 December 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 14 November 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Family Law Practice Australia Pty Ltd |
| SOLICITOR FOR THE RESPONDENT: | Harris Freidman Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr Smallbone |
| SOLICITOR FOR THE INTERVENOR: | Prime Lawyers |
Orders
THE COURT ORDERS THAT:
The husband’s Application in a Case filed on 7 August 2018 be dismissed.
The husband pay the costs of the wife and the interveners referable to this application on a party-party basis, within 28 days of those costs being agreed or assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sirola & Sirola has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5380 of 2014
| Mr Sirola |
Applicant
And
| Ms Sirola |
Respondent
And
| Ms T Sirola and Mr U Sirola |
Interveners
REASONS FOR JUDGMENT
Introduction
This matter concerns an application by the husband, Mr Sirola (“the husband”), seeking orders for a partial distribution of property of $100,000, pending the final hearing of the matter. The husband seeks that release of monies, in order to enable him to meet the costs of defending criminal charges that have been laid against him.
The responding parties oppose the application for reasons that include that the Court could not have confidence that such an interim distribution could not be adjusted at a final hearing, to ensure justice between the parties.
Background contentions
In 1971, the husband was born.
In 1979, Ms Sirola (“the wife”) was born.
In approximately February 2001, the husband and the wife commenced cohabitation.
In mid 2001, the parties were married. The parties separated several times during their marriage.
There are two children of the parties’ relationship, who are aged 17 and 15 years.
The husband contends that, in late-2013, he was gifted property by his father, the late Mr U Sirola, which included the property at V Street, Suburb L NSW … (“the Suburb L property”). The interveners contend that the Suburb L property was not gifted to the husband, but rather transferred to him for consideration, which was never paid to the late Mr U Sirola.
At the hearing, the husband tendered a copy of a letter from X Lawyers addressed to the late Mr U Sirola, dated 14 October 2013 (Exhibit “H-3”). That letter attaches the first page of a contract for the sale in respect to the Suburb L property, which is stamped by the Office of State Revenue, noting stamp duty payable of $31,040. That contract notes the late Mr U Sirola as vendor and the husband as purchaser. The purchase price is noted to be $790,000.
In mid 2014, the late Mr U Sirola died.
On 21 August 2014, the husband and the wife separated on a final basis.
On 28 August 2014, these proceedings where commenced by the wife, by way of an Initiating Application, seeking both parenting and property orders.
On 4 August 2016, the property proceedings between the husband and the wife were adjourned until 13 October 2016, in order to ascertain the status of a caveat lodged against the property at Y Street, Suburb S NSW … (“the Suburb S property”). That caveat had been lodged by Mr U Sirola, who is the brother of the husband and an intervener in this matter.
On 1 December 2016, orders were made granting leave for Ms T, Mr BB Sirola, Mr U Sirola and Ms AA to intervene in the proceedings. Those parties were joined with a view to protecting their interests in respect to issues being considered in quite complicated family provision proceedings in the Supreme Court of New South Wales, concerning the estate of the late Mr U Sirola. Those proceedings are ongoing.
In 2017, the husband was charged with serious criminal offences. He is currently incarcerated and awaiting the hearings in respect of those charges.
On 20 August 2018, orders were made releasing Mr BB Sirola and Ms AA from these proceedings. The remaining interveners, being the husband’s siblings, Mr U Sirola and Ms T Sirola, are collectively referred to as “the interveners” throughout these Reasons for Judgment.
The proceeds of sale of the Suburb S property are currently held in a CC Bank account in the joint names of the solicitors for the wife and the husband. The husband asserts that the balance of those proceeds of sale is $2,257,832.42.
The proceeds of the Suburb L property are held in two Westpac accounts. While the total proceeds of sale originally held in that account were $853,877, the husband’s case outline document (Exhibit “H-2”) states, in respect to the monies currently held in that account, “Amounts not known as monies disbursed as per orders”.
The husband has annexed to his case outline document (Exhibit “H-2”) a draft balance sheet, which values the net matrimonial property available for distribution as $1,511,469.29.
Applications
In his Application in a Case filed on 7 August 2018, the husband seeks the following orders:
1. That, within 28 days from the date of these orders, the amount of $96,393.00 from funds held in the Westpac Term Deposits, account numbers BSB …, Account Number #51 and BSB …, Account Number #43 held in the name of [Mr Sirola] be forthwith released to [X Lawyers] for payment of legal costs to [X Lawyers], and for that purpose be legal authority for Westpac to release and/or transfer funds to [X Lawyers] Law Practice Trust Account.
2. That, within 28 days from the date of these orders, the amount of $20,000.00 from funds held in the Westpac Term Deposits, account numbers BSB …, Account Number #51 and BSB …, Account Number #43 held in the name of [Mr Sirola] be forthwith released to [DD Lawyers] for payment of legal costs to [DD Lawyers], and for that purpose be legal authority for Westpac to release and/or transfer funds to [DD Lawyers] Law Practice Trust Account.
However, that application was updated by the minute of orders sought in the husband’s case outline document, as follows:
That within 48 hours from the date of these Orders, the amount of $100,000 from funds held in the Westpac Term Deposits, account numbers 393151 and 393143 held in the name of [Mr Sirola] be forthwith released to [X Lawyers] for payment of legal costs for [Mr Sirola's] criminal law proceedings to [X Lawyers], and for the purpose be legal authority for Westpac to release and/or transfer funds to [X Lawyers] Law Practice Trust Account.
In a Response to an Application in a Case filed on 16 August 2018, the interveners sought that the following orders be made:
1. That the Husband's Application in a Case not be heard and determined until the Respondent Husband:
a. Purges his contempt of the Orders of this honourable Court made on 15 October, 2014 and 3 March, 2015; and
b. complies with the following orders.
2. The Respondent Husband repatriate all funds held in his sole name in any financial institution outside of Australia, including any money standing in the [EE Bank] [Country FF], to be called in and invested into a joint account in the name of the Husband and Wife in Australia.
3. The Respondent Husband deposit all cash held by the Husband, or any other person on behalf of the Husband, in a financial institution nominated by the parties, other than a sum for the Respondent's reasonable living expenses.
4. The Respondent Husband file an updated Financial Statement which includes the following disclosure:
i. Full and complete details of all bank accounts held by the Husband, including joint accounts and including as trustee, wherever situate in the world.
ii. A copy of bank statements for all accounts referred to in order 4(i) from 1 November 2013 to date.
iii. A verified accounting of the movement and whereabouts of $4 million transferred to the Husband by the late [Mr U Sirola] in December 2013, including the present location of the balance of those funds, and any assets acquired with use of those funds.
iv. A verified accounting of the movement and whereabouts of $1.8 million transferred to the Husband by the late [Mr U Sirola] in December 2013 and later withdrawn from the [EE Bank] following the late [Mr U Sirola's] death, including the present location of the balance of those funds, and any assets acquired with use of those funds.
v. A verified accounting of the movement and whereabouts of $1 million cash withdrawn from a Westpac Bank account in the name of the Husband in February 2015, including the present location of the balance of those funds, and any assets acquired with use of those funds.
5. The Respondent Husband repay the amount of $168,766.48 plus interest into a joint bank account nominated by the parties in reimbursement of the amounts received by the Husband following the sale of the property at [V Street, Suburb L] and in breach of the orders of 15 October 2014.
6. The Respondent Husband repay any amount currently owing to the 2nd and 4th respondents, the estate of the late [Mr U Sirola], or [GG Pty Ltd] pursuant to any judgment of the Supreme Court of New South Wales, or Supreme Court of New South Wales Court of Appeal.
7. In the alternative to orders 1-6, that the Respondent Husband's Application in a Case be dismissed.
8. That the Respondent Husband pay the 2nd, 4th and 5th Respondent's costs of his Application in the Case, such costs to be assessed on the indemnity basis.
9. That these proceedings be listed for further directions on a date in December 2018 for the purpose of monitoring compliance with these orders.
The wife also opposes the husband’s application.
Evidence
At the hearing, the husband relied upon the following documents:
a)His Affidavit filed on 1 August 2018;
b)Affidavit of Mr HH filed on 1 August 2018; and
c)Affidavit of Mr II filed on 1 August 2018.
The interveners relied upon the following documents:
a)Affidavit of Mr JJ (solicitor for the interveners) filed on 9 July 2018;
b)Affidavit of Mr JJ filed on 16 August 2018; and
c)Affidavit of Mr JJ filed on 13 November 2018.
The wife did not file any documents in relation to this application.
Consideration
In the case of parties to a marriage, the legislative foundation for an order for partial property distribution is ss 79 and 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”). In combination, those provisions confer power on the Court to make orders for interim property settlement.
Section 80 is not, in itself, a source of jurisdiction for the making of an order for the partial distribution of property in interim proceedings. Rather, that section is an “enabling provision”, which provides for the various ways in which the general power found in s 79 may be exercised in individual cases. In that respect, in Davidson and Davidson (No 2) (1994) FLC 92-469 at 80,874, the Full Court stated:
Section 80(1) is limited by its introductory words, namely that “The court, in exercising its powers under this Part, may do any or all of the following ...” That is, s. 80(1) is activated by the exercise by the court of some other of the powers in Part VIII.
It is clear that the power to make orders pursuant to s 79 of the Act can be exercised prior to final hearing, including through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made: Gabel & Yardley (2008) FLC 93-386, cited in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,640.
However, as noted by Thackray J in Strahan & Strahan (Interim Property Orders) (2011) FLC 93 466 (“Strahan”) at 85,656:
… it is important to note that s 80(1) is couched in the permissive. Hence, although the Court must give consideration to the matters set out in s 79(4) when hearing an application for an interim payment, it has no obligation to make an interim order. The Court “may” do so if it considers that it should in the exercise of its discretion.
In Strahan, the Full Court held that there are two steps to considering an application for an order for partial property distribution, prior to final hearing. The first step is to resolve whether to exercise the power before a final hearing. This is a “procedural step”, which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) of the Act. At this stage, the “overarching consideration” is the interests of justice: Strahan at 85,645.
The second step identified in Strahan involves the exercise of the Court’s power pursuant to s 79 of the Act. Insofar as it is possible in interim proceedings, this step requires the Court to:
a)Identify “the parties’ property and of their interests in it” (Medlow & Medlow (2016) FLC 93-692 at 81,088); and
b)Consider and apply the provisions of s 79 (Strahan at 85,645).
In approaching the determination of the first step in Strahan, at 85,645, the Full Court said:
In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
It is clear that it is not necessary for an applicant seeking orders for the partial distribution of property, prior to final hearing, to show “compelling circumstances”. Nonetheless, in Stanford and Stanford (2012) 247 CLR 108 (“Stanford”) at [40], the High Court held that a consideration of whether there should be an order for the adjustment of parties’ legal and equitable interests in matrimonial property should not be commenced with the assumption “that one or other party has the right to have the property of the parties divided between them”. This applies to an application for a partial distribution of property in interim proceedings, as much as it does to such an application at the final hearing of a matter.
In that way, an applicant for the partial distribution of property, at a time prior to final hearing, carries the onus of satisfying the Court that it is in the interests of justice for such an order to be made, rather than for a “once and for all” order to be made at final hearing.
In interim proceedings, s 79 of the Act should be applied with regard to that context. In particular, in considering whether it is just and equitable to make the orders sought, it is necessary to have regard to the potential impact of them upon the respective parties, at the point in time that the interim order is made: Sully & Sully (No 2) [2016] FamCA 706 at [33] to [36].
In determining whether it is in the interests of justice for an application for the partial distribution of property to occur, prior to final hearing, it is necessary to consider both the parties’ interests and the public interest. In that respect, in Strahan at 85,645, the Full Court said:
In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
In a similar context, Thackray J said, at 85,657:
The Court must first identify circumstances that make it appropriate to give consideration to exercising its power to make an interim order. It is at this stage that the Court has regard to the policy consideration that it is generally in the interest of the parties and the Court for there to be only one exercise of the s 79 power.
Further to the policy consideration referred to by Thackray J, it is also important to note the obligation of the parties and the Court to further the main purpose of the Family Law Rules 2004 (Cth) (“the Rules”), which is set out in rule 1.04, as follows:
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case. [Emphasis added].
Unless satisfied that it is in the interests of justice, the Court should avoid hearing a multiplicity of interim applications that traverse matters which will ultimately be considered in an orderly and considered manner at final hearing.
As noted, the husband makes this application for an interim property distribution in order to pay invoices rendered to him by his solicitors in his criminal proceedings, as well as to fund that ongoing litigation. Authorities confirm that it may be appropriate to make an order for the partial distribution of property, prior to final hearing, in situations where a party may require access to resources “to meet debts which may result in the party being pursued by creditors”: Strahan at 85,643, quoting Wenz v Archer (2008) 40 FamLR 212. On that basis, I accept the husband has established a legitimate reason for seeking the release of funds. However, as I will explain, the husband has failed to satisfy me that it is in the interests of justice for those funds to be released.
As noted above, there are two aspects to the second step identified in Strahan. The first is to identify “the parties’ property and of their interests in it”. The Full Court in Medlow & Medlow (2016) FLC 93-692 at 81,090 referred to Strahan, and the authorities referred to therein, in confirming that the applicant for an interim order for the distribution of property carries the onus of establishing that the property of the parties must be such that any order for partial property distribution is “amenable to adjustment on a final hearing”.
I find that the husband’s application fails, on that basis, for two reasons. The first is his non-disclosure. The second is that I am not satisfied that the interim distribution sought by the husband would be amenable to adjustment at final hearing.
Non-disclosure
The obligation of disclosure in family law proceedings exists both at common law and pursuant to statute.
In Briese and Briese (1986) FLC 91-713 at 75,181, Smithers J applied the House of Lords decision in Livesey and Jenkins (1985) 1 All ER 106 in determining that:
… in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion. [Emphasis added].
His Honour further stated at 75,181:
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties. [Emphasis added].
In that regard, rule 13.01(1) of the Rules relevantly provides that:
… each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.
Further, rule 13.04(1)(a) provides that:
A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:
(a) the party's earnings, including income that is paid or assigned to another party, person or legal entity;
…
(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:
(i) in the 12 months immediately before the separation of the parties; or
(ii) since the final separation of the parties; and …
Clause 6 of Part 1 of Schedule 1 of the Rules relevantly provides:
(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to: …
(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute.
Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part). [Emphasis added].
The fact that the obligation of disclosure exists as a duty to the Court, as well as the other party, is significant. It is also significant that the obligation is in respect to the disclosure of “information relevant to the dispute”, not simply one that attaches to the production of documents.
In Graf-Salzmann and Graf [2015] FCWA 68 Walters J noted:
… a judge is entitled to take a "robust view" in relation to findings regarding a party's financial position (including a party's capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su (2002) FLC 93-117 at [71] and [72].
In Efthidmiadis & Efthidmiadis (1993) FLC 92-361 at 79,804, the Full Court said:
So far as the wife is concerned, there is no doubt that she should be treated as substantially understating her income… The circumstance that the wife had a significantly greater income that she deposed to was very damaging to her on issues of credit overall and virtually ensured that she was put out of Court so far as s75(2) factors were concerned.
In Weir & Weir (1993) FLC 92-338 at 79,593 the Full Court, stated:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party.
In this matter, it is not in dispute that the husband has failed to comply with his obligation of disclosure. This includes an ongoing failure to comply with orders that were originally made by consent on 3 March 2015.
That failure to comply with his disclosure obligation continued into the final hearing of the parties’ applications for property orders. In that respect, during the course of cross examination on 5 August 2016, the husband acknowledged that he would not provide documents in respect to a bank account located in Country FF to the solicitors for the wife. When asked how much money had been provided to him by his late father when they were in Country FF, the husband responded: “I want to tell you ‘none of your business’ because he entrusted me to them…”
As noted, in Strahan at 85,656, Thackray J stated that the Court “may” make an interim order for partial property distribution “if it considers that it should in the exercise of its discretion”. The husband’s failure to comply with his obligation of disclosure, in itself, is a matter that impacts upon the Court’s preparedness to so exercise its discretion. In the circumstances of this matter, the husband’s ongoing, deliberate breach of his obligation of disclosure is such that the Court should not exercise its discretion to make the order that he seeks.
Further, as a result of the husband’s non-disclosure, it is not possible for the Court to determine that he requires an interim property distribution to fund his criminal proceedings. This is because it is not clear what other resources are currently available to him. In the absence of such information, the Court is unable to determine that it is in the interests of justice for there to be an interim order for the partial distribution of property, prior to final hearing.
Adjustment at final hearing
The husband asserts that, in circumstances where the proceeds of sale of the Suburb L property, which remain in two Westpac accounts, significantly exceed $100,000, he should be entitled to access those funds to the extent of $100,000. That contention is, with respect, fallacious. The task of the Court, as identified by the High Court in Stanford, is to identify the parties’ legal and equitable interests in the totality of the matrimonial property, not simply one part of that property.
In considering the evidence before the Court, I am not satisfied that, having regard to the matrimonial asset pool, the orders sought by the husband would be amenable to adjustment at final hearing.
The husband contends that the property gifted to him by his late father in 2013 included the Suburb L property and, accordingly, that the proceeds of the sale of that property can be quarantined from matters currently being considered in the family provision proceedings in the Supreme Court of New South Wales. The interveners, on the other hand, refer to the front page of the contract for the sale of the Suburb L property as evidence that that property was not, in fact, gifted to the husband.
In these interim proceedings, I am unable to make a determination in respect to those competing contentions. I note, however, that the issue appears to be legitimately in dispute, such that it cannot comfortably be determined that the proceeds of the sale of the Suburb L property will be found to form part of the parties’ matrimonial property pool available for distribution at final hearing.
This is significant because, once the total proceeds of sale of the Suburb L property are deducted from the total net figure contended by the husband to be the value of the matrimonial asset pool, being $1,511,469.29, the remaining balance is $657,592.25. That amount is less than 50 per cent of the net value of the Suburb S property, which the husband contends is $2,257,832. This is important because the wife contends that, even if the family provision proceedings brought by the interveners are successful, the interveners will only be able to recover against the property of the husband, rather than the property to which she is legally entitled. In circumstances where the wife contends that she jointly owned the Suburb S property with the husband, her interest in that property, prior to any distribution pursuant to s 79 of the Act, is 50 per cent. Based on the husband’s assertion of value, that interest is potentially worth $1,128,916.
While the wife’s contention is not accepted by the interveners, it is also an issue that is legitimately in dispute and will need to be determined at final hearing, rather than in interim proceedings.
As such, if the Suburb L property is found not to form part of the matrimonial asset pool, based on the husband’s balance sheet, the remaining assets available for distribution at final hearing will be valued at $657,592.25. This is insufficient to account for the wife’s entitlement to 50 per cent of the proceeds of the sale of the Suburb S property.
Accordingly, the Court cannot be comfortably satisfied that the interim distribution of property sought by the husband would be amenable to adjustment at final hearing, to satisfy either or both the claims by the interveners and the wife. In this way, the husband has failed to satisfy the Court that it is just and equitable to make the order he seeks.
Costs
Both the interveners and the wife have applied for costs in the event of the Court dismissing the husband’s application. In the circumstances of this matter, such an order is appropriate.
Section 117(2) of the Act provides that, if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as it considers just. The matters relevant to determining what order, if any, should be made for costs are set out in s 117(2A), as follows:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(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, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(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; and
(g) such other matters as the court considers relevant.
While I have considered all of the matters set out in s 117(2A), authorities are clear that, in making an order for costs, the Court does not need to be satisfied of each and every matter referred to in paragraphs (a) through to (g): Fitzgerald v Fish and Anor (2005) 33 Fam LR 123 at [41].
I consider that the most relevant issue in this matter is the conduct of the husband in these proceedings, in terms of paragraph (c). Specifically, as I have noted above, the husband has failed to produce documents evidencing the property to which he has a legal or equitable interest. It was unreasonable for him to seek an order for a partial property distribution in his favour until he has complied with his obligations of disclosure. Further, the absence of such disclosure has prevented the husband from satisfying the Court that it is just and equitable to make the orders he seeks.
In those circumstances, the husband’s application has been made unreasonably and it is appropriate for him to pay the costs of the wife and the interveners. Those costs should be paid on a party-party basis, within 28 days of those costs being agreed or assessed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 4 December 2018.
Associate:
Date: 4 December 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Duty of Care
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Remedies
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Procedural Fairness
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