SOL & SOL

[2011] FamCA 1058

FAMILY COURT OF AUSTRALIA

SOL & SOL [2011] FamCA 1058

FAMILY LAW – PROCEDURE – non-appearance – interim orders – costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Sol

RESPONDENT: Mr Sol

FILE NUMBER: MLC 3340 of 2011

DATE DELIVERED: 25 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 25 July 2011

REPRESOLTATION

COUNSEL FOR THE APPLICANT: Mr Nehmy

SOLICITOR FOR THE APPLICANT: Berry Family Law

THE RESPONDENT: No appearance

Orders

1. That there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That the reasons for judgment this day be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Sol & Sol 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 3340 of 2011

Ms Sol

Applicant

And

Mr Sol

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed by the applicant on 19 April 2011.  The matter was originally returnable at 9.15 am on 4 July 2011 as a case assessment conference before a Registrar.  The matter came on on that day before Registrar Mestrovic and the wife appeared by counsel and there was no appearance for the husband.  The Registrar was satisfied as to service.  In being so satisfied, the Registrar relied upon an affidavit of service of a process server filed 12 May which showed that the relevant documents had been served on the husband some eight days before and he had signed an acknowledgement of service.

2. Today the wife has given evidence confirming that the signature on the acknowledgement of service form is that of her husband.  The Registrar made a variety of procedural orders on 4 July and ordered that those orders be served upon the husband.  A further affidavit of service was filed on 12 July by a process server confirming that the order was served upon the husband personally on 6 July, although the husband would not sign the acknowledgment of service.

3. The husband has been called today and there is no appearance, nor am I told of any reason why he is not here.  The wife is not in a position to proceed on a final basis today but seeks interim orders and to have the opportunity to have the matter proceed on an undefended basis on a date in the foreseeable future.  Clearly, there are further matters to be dealt with to support those final orders.  The first of those is that the wife needs to particularise the precise order she is seeking and the second relates to more precise details as to the evidence that will support those orders.

ORDERS DELIVERED

1. The application for an interim orders fall into four categories.  The wife seeks, effectively, spousal maintenance in the form of mortgage payments and other loans; she seeks injunctive orders to enable her to have sole occupancy of the home that the husband has vacated;  she seeks injunctive orders relating to his use of the assets of a company or companies in which he is the sole director;  and fourthly, she seeks her costs thrown away today, together with the costs that were fixed by the Registrar on 4 July but which were stayed to today.

2. Dealing with each of those four issues in turn, the wife relies on an affidavit filed 19 April.  In respect of the spousal maintenance, she deposes to the fact that she is a Centrelink Newstart Allowance recipient receiving $315 per week.  She is 40 years of age and has suffered health problems, much of which it seems to be directly related to the conduct of the husband.  I am satisfied there is sufficient evidence for the wife to satisfy the threshold test that she is unable to support herself without maintenance and that only leaves the question then of the husband’s capacity to pay.

3. In this case, on the wife’s evidence set out in paragraph 19 of her affidavit, there is at least $4 million worth of assets.  I say “at least” because there are number of assets which are not valued even on an estimate basis by the wife and on that basis I can conclude that the husband has sufficient assets to be able to support the wife.

4. In respect of the application for sole occupancy, I am satisfied that the wife is justified in having the use of that property.  In 2008 an assault occurred in which the wife had her nose and face damaged by the husband requiring attendance at the B Hospital where she was informed that her nose was broken.  In 2009 there were further violent incidents and the wife was again assaulted by the husband.  The assault on that occasion ended up with her being admitted again to the B Hospital requiring an operation as her arm was broken.  Metal plates and screws were inserted into her right forearm and wrist.  She was hospitalised for four days.

5. The husband has been aggressive since separation including numerous telephone calls in which he has threatened her.  He said that he would not pay her money and would sell various properties and seek to hide assets.  She deposes to the fact that she is frightened for her safety.  That is a sufficient basis for me on an interim basis to order that the husband be restrained from attending the home and that she have sole occupancy until the determination of the property rights.

6. As I have indicated, the husband is also the sole director of at least one corporate entity which trades in European prestige cars and there is currently a trust underneath that structure.  The wife deposes to the fact that upon receiving a letter that she instructed her solicitor Sold to the husband, he telephoned her and threatened to dispose of the assets and make sure that she was not to receive anything.  That was a letter written in March and subsequent to that time there have been the proceedings to which I am referred.

7. In respect of both the sole occupancy and the injunctive orders against the husband relating to his use of the company property, the powers to make orders lies in s 114 of the Act. The major requirement of the Court is to be satisfied that it is proper to make the order and in the circumstances here, having regard to threats that the husband has made and his conduct, as outlined by the wife, I am satisfied that it is proper to make the two orders to which I have referred.

8. The fourth category relates to costs.  The Registrar was sufficiently satisfied on 4 July to make an order for costs amounting to $1320 and staying the payment of those until today.  The opportunity for the husband to come along and explain why he did not attend on 4 July would have been today but he is not here and I am satisfied, as I have indicated, that he has received notice.  On that basis, there is no reason for me not to lift the stay made by the Registrar for the order to be made absolute.

9. The wife today makes an application for the costs thrown away as a result of having to be here. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) requires that each party bear their own costs. Exception to that rule is where there are circumstances that satisfy a Court that it is justifiable to depart from that principle and if it is contemplating that departure, it must take into account the matters set out in s 117(2A). In this case, as I have indicated, there are significant financial resources, all of which appear to be under the control of the husband.

10. Orders were made that the husband be here today and that he also provide documents by the way of discovery.  He has not done any of those things.  He has, therefore, not complied with the orders.  I am not advised of any legal aid issues associated with these proceedings, but the bottom line is that the husband had an opportunity to be heard and has chosen deliberately not be here.  His course of action means that the wife is put in a position in which she has to prove everything.  It means also that assets that could otherwise, have been valued by agreement now have to be proved at expense to the wife.  Someone who does not participate in proceedings in circumstances such as this does so at their peril. 

11. There is no circumstance that I can think better than one such as this for an order for costs to be made.  Mr Nehmy points out that the costs he is seeking at $1320 are effectively costs that might be described as indemnity costs.  The scale for counsel on matters such as this is $928.  A further $400 or thereabouts can easily be run up by a solicitor in obtaining instructions, attending the service of the orders of the Registrar, arranging for counsel to be briefed and the relevant service documents.  I am satisfied that even if this was a scale matter, the costs within the area of $1320 are reasonable and I do not need to address the issue of them being indemnity costs.

ORDERS DELIVERED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 July 2011.

Associate: 

Date:  11 January 2012