STARKEY & STARKEY

[2010] FamCA 477

FAMILY COURT OF AUSTRALIA

STARKEY & STARKEY [2010] FamCA 477

FAMILY LAW – PROPERTY – Section 79A(1A) – Variation of orders

Duties Act 1997 (NSW) s 68
Family Law Act 1975 (Cth) ss 79, 79A, 81, 90, 117

Cawthorn & Cawthorn (1998) FLC 92-805
In The Marriage of Morrison (1995) FLC 92-573
In The Marriage Of Prowse (1995) FLC 92-557
La Rocca & La Rocca (1991) FLC 92-222
Official Trustee in Bankruptcy v Bryan, AJ and The Estate of Christine Ann Gatenby (2006) FLC 93-258

APPLICANT: MR STARKEY
By his Case Guardians
Mr C and Mr T

RESPONDENT: MS STARKEY

FILE NUMBER: LEC 245 of 2007

DATE DELIVERED: 9 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Forrest

SOLICITOR FOR THE APPLICANT: S+P Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Pellandine of Jensens Solicitors & Attorneys

Orders

IT IS ORDERED BY CONSENT THAT

1. Pursuant to section 79A(1A) of the Family Law Act 1975, the orders for settlement of property made by the Court on 24 March 2009 are varied by adding thereto:

   a.That the Wife’s interest in the Toyota Avalon Motor Vehicle is transferred to the Husband;

   b.That the husband’s interest in the Volvo Motor Vehicle is transferred to the Wife;

   c.That the Husband’s interest in the Common Stock of Barrick Gold Corporation is transferred to the Wife;

   d.The Husband retain all other property (including superannuation and deposit bond) in the possession, custody or control of the Husband to the exclusion of the Wife;

   e.The Wife retain all other property (including superannuation) in the possession, custody or control of the Wife to the exclusion of the Husband.

IT IS DIRECTED THAT

1. In compliance with the orders made on 24 March 2009:

   a.The moneys standing in the joint account of the parties at Westpac Banking Corporation Account … be dealt with as follows:

   i.As to the sum of $155,000 (being part sale proceeds of the business) such amount be transferred to the Wife forthwith by bank cheque.

   ii.As to the sum of $5,374 (being interest agreed pursuant to Consent Orders) such amount to be transferred to the Husband forthwith via bank cheque.

IT IS ORDERED THAT

1. The application by the wife is otherwise dismissed.

2. The oral application by the wife for a declaration that “the parties are living separately and apart and have done so since they separated in March 2006” is dismissed.

3. The wife pay the husband’s costs, including reserved costs.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 245 of 2007

MR STARKEY

By his Case Guardians: MR C and MR T

Applicant

And

MS STARKEY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is the latest application in litigation that has spanned more than three years.  The wife seeks to vary final orders for settlement of property made on 24 March 2009.  By her solicitor, the wife also makes oral application for a declaration that “the parties are living separately and apart and have done so since they separated” in March 2006. The making of the application is not opposed.

2. The parties join in seeking some variation to the orders for settlement of property made on 24 March 2009 by consent (see section 79A(1A). Those orders will be made.

3. Otherwise, the success of the wife’s application, pursuant to section 79A, is dependent upon her satisfying the court that a ground within that section has been made out, and that the court should thereafter exercise a residual discretion to vary the orders.

4. This matter has a chequered history.  It is necessary to set out some of the background which can, I think, be done by reference to earlier reasons for judgment given by me, which for ease of reference will be repeated here. 

5. The husband and wife were married in 1959.  For many years they ran in partnership a transport company in northern New South Wales.  Sadly, the husband’s incapacity resulting from advanced Parkinsons Disease has resulted in him being admitted to a nursing home in about 2007. 

6. On 27 March 2007, the husband appointed two long-time friends, who are the respondents to the instant application, as his attorneys, and conferred various powers upon them in and about his affairs as a result, including the power to commence proceedings in this court. 

7. Proceedings seeking relief pursuant to section 79 of the Family Law Act in which the company was a significant component of the property of the parties, or either of them, within the meaning of that section, were filed by the husband’s attorneys on his behalf on 18 April 2007. 

8. On 4 June 2007, Mr D Starkey, the parties’ adult son, applied to the Guardianship Tribunal of New South Wales for the appointment of a guardian and financial manager in respect of his father.  On 10 October 2007 he also applied to review the appointments of the attorneys made by his father on 27 March of that year.

9. In October 2007 the Guardianship Tribunal of New South Wales made an interim financial arrangement order.  The full hearing of the application took place on 22 February 2008, at which the husband, the wife, Mr D Starkey, the current respondents (and others) gave evidence.  Final orders confirming the respondents as financial managers for the husband were made.

10. On 29 November 2007, approximately one month after the interim orders were made by the tribunal, orders were made in this court appointing the respondents as case guardians.  Further orders were made, the effect of which was that the case guardians, standing in the husband’s stead, would manage the business, including the payment of specified moneys under specified conditions.

11. On 12 November 2008, I made orders and delivered reasons dismissing an application by the wife to remove those case guardians. 

12. Further interim applications were heard until the final hearing of the husband’s application for section 79 orders on 24 March 2009. Ex tempore reasons given on that day refer to further aspects of the background, which are also relevant to the instant proceedings, and are also repeated here for ease of reference.

13. The application for settlement of property, brought by an application sworn by the husband himself on 27 March 2007, was brought at a time when he was of full legal capacity. 

14. Prior to that time, on 21 April 2006, there was what might be described as an attempt to file in this court orders by consent effecting a division of the property of the parties, or either of them, pursuant to section 79. That document on its face evidences the parties representing themselves, and also evidences an agreement expressed in unsophisticated lay terms.

15. There were, at the time of the making of the ex tempore judgments just referred to, and to all intents and purposes appear to currently be, many factual disputes surrounding the making of that agreement.  Those issues do not need to be determined for the purposes of the current application. 

16. Subsequent to the filing of the application by the husband, orders were made by the Guardianship Tribunal of New South Wales as earlier indicated that, in effect, confirmed the husband’s lack of capacity as and from the date of the order there referred to.

17. There was no evidence before the court as at 24 March 2009 when orders were made on that date, which suggested that the husband lacked capacity at the time when he originally filed the application to commence the property proceedings.  There is also no such evidence before me today. 

18. Equally, the evidence was clear then, and is clear now, that at a time subsequent to that, the husband did in fact lack capacity and, as a result, managers in respect to his financial affairs were appointed and have conducted his financial affairs ever since in the manner earlier referred to.

19. Subsequent to the events just described, and prior to the final hearing of the husband’s section 79 application, various procedural orders were made so as to prepare the matter for a hearing of that issue at that time. In the lead-up to those proceedings, the wife filed an amended response to an application for final orders on 15 February 2008. Paragraph 1 of that response sought an order that the application for settlement of property be dismissed for the reasons set out in the document.

20. The orders sought in that response were not made for reasons later to be discussed relevant to the oral application sought today on behalf of the wife for the declaration sought.

21. It is also important to point out that included within that same Amended Response at paragraph 6 was the following:

    (a)       The husband and wife have not separated.

    (b)The husband and the wife did not intend to bring their marriage to an end.

    (c)As a matter of principle and public policy, the court should not make orders that promote the downfall of the marriage but seek to protect that marriage.

    (d)The proceedings have been initiated and maintained for purposes other than the purposes consistent with the Family Law Act.

    (e)Until the parties separate the court will not be able to properly exercise consideration of contributions of the parties.

22. Senior counsel who appeared for the wife at that time argued before the court that the marriage relationship between the husband and the wife – or, as he expressed it, the “consortium vitae” between the parties had not broken down.

23. The orders made by the court on 24 March 2009 include, relevant to the instant application:

    (3)The husband will, within 14 days, transfer to the wife all of his interests in the following properties:

    (i)[Z Street] [omitted];

    (ii)[A Street] [omitted];

    (iii)the [business] partnership, known as [Starkey & Starkey], and including the parcel of land at [T] [omitted].

    (4)Subject to order 5 below the wife shall indemnify the husband in respect of any liabilities relating to any of the above transferred properties, and shall be entitled to all rentals and income accruing after 1 April 2009, whether or not the transfers have been effected by that date.

    (5)The parties shall forthwith do all things necessary to dissolve the partnership [Starkey & Starkey], as at 31 March 2009, and upon the taking of accounts the assets of the partnership then remaining, as are not otherwise dealt with by these orders, shall be divided equally between the parties.  The winding-up of the partnership and the taking of accounts is to be conducted by [Mr N], who will consult with [Mr V].  In the event that there is any dispute, such dispute shall be referred out to [W] Accountants as referees.

    …

    (7)Contemporaneously with the transfers referred to in order 3 above, the wife shall pay to the husband the sum of $131,000 …

24. It is to be noted, that at the time those orders were made, the wife was (and had been) represented by solicitors and was represented at the hearing of that matter by a senior counsel well experienced in this jurisdiction. 

25. On 15 July 2009, further orders were made which adjourned substantive proceedings on the basis of minutes of consent entered into between the parties on that day.  On that occasion, again the wife was represented by a solicitor. 

26. By the terms of those minutes of consent, made as orders on that day, the wife was obliged to file an application seeking relief pursuant to section 79A.  Those orders also included, relevantly:

    (2)That as and by way of enforcement of the order made by this court on 24 March 2009:

    (i)that all of the parties’ rights, title and interest in the business […], including all of its assets (“the business”) hereby invest in Mr John Maxwell, solicitor, of Lismore, upon trust for the sale of such business as soon as possible on such terms and conditions as shall be determined by Mr John Maxwell;

    (ii)that the operation of paragraph 2(i) hereof is suspended until the close of business on 24 July 2009;

    (iii)that notwithstanding other provisions of this order, each of the parties shall do all that is necessary, including signing all documents necessary, to enter into a contract for the sale of the business to [Mr and Mrs U] at the sum of $900,000, or such other sum as may be agreed between the parties and the [Us], and should there be an exchange of contracts in respect of the sale of the business to the [Us] before the close of business on 24 July 2009, then the operation of paragraph 2(i) hereof is further suspended until the close of business on 31 August 2009.

    (3)That in the event that the sale of the business to the [Us] contemplated by paragraph 2(iii) hereof does not settle by 31 August 2009, then by way of further enforcement of the order made 24 March 2009, and in respect of the wife’s application pursuant to section 79A of the Family Law Act (A) that then paragraph 2(i) of this order becomes operative, and upon settlement of the ultimate sale of the business …

The section 79A Application – The ground relied upon

1. The wife in the instant application relies on only one of the grounds provided for in section 79A.  Relevantly then, the section provides:

   … where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

   …

   (b)in the circumstances that have arisen since the order was made, it is impracticable for the order to be carried out, or impracticable for a part of the order to be carried out …

   … the court may in its discretion vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.

2. A consideration of what is meant by the expression “impracticable for the order to be carried out” has been undertaken by earlier decisions of the Full Court binding upon me.  For example, in Cawthorn & Cawthorn (1998) FLC 92-805, the Full Court approved earlier comments made by Kay J in La Rocca & La Rocca (1991) FLC 92-222 as follows:

   … the concept of impracticability … is akin to the application of the doctrine of frustration in contractual matters. What the Parliament is concerned with and what ought to be concerning the Court is the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to.

   …

   Now, in my view, what the appropriate application of s.79A(1)(b) ought to be is that circumstances that have arisen in which it becomes impracticable to carry out the orders are circumstances that could not reasonably have been contemplated and that in such circumstances, whilst impossibility is not the test and impracticability is, it may then become just and equitable to change the orders.

3. The legislative provisions, and the authorities referred to, give rise to two arguments on behalf of the respondents in answer to the assertion by the wife that it is impracticable for the order to be carried out, or for part of it to be carried out. 

4. First, it is argued that such matters as are raised by the wife relate to difficulties in the obtaining of, what I will call for convenience, a nominee for the purposes of obtaining the required licences to run the transport services as part of the business. 

5. It is argued that whilst this might be a component of the business, the orders transfer the business itself, of which the contracts for transport services are but a part.  The business, it is argued, also consists of the assets of the business, including vehicles and the like, and a block of land, which, it might be noted, is specifically referred to in the orders themselves.

6. Thus, it is said that, whatever difficulties there might be in respect of some component of the business (albeit, it might be observed, a profitable part of the business) it is nevertheless simply not right to say that the terms of the orders themselves which relate to the transfer of a business cannot practicably be carried out. 

7. It seems to me there is considerable force in that submission.

8. Secondly, and in any event, it is argued that any such changes that have occurred in and about the business were changes that could have reasonably been foreseen at the time that the orders were made; indeed foreseen for a considerable period of time leading up to the making of those orders.

9. In that respect, Mr C, who was one of the two case guardians for the husband, deposed in an affidavit sworn on 23 March 2009 and filed by leave on 24 March 2009 at paragraph 47:

   A significant proportion of the services provided by the business are [transport services].  The business owns and maintains on the [vehicles], and employs drivers for this purpose.  It has regular current obligations to pay wages, vehicle registration fees, maintenance, and fuel bills in respect of the carrying on of its business.  Its main income arises from payments from the New South Wales Transport Ministry which require strict adherence to its regulation, and that the business be conducted and supervised by a transport manager accredited by the ministry. 

   The current manager of the business is Mr [GS], who is unrelated to the parties of the proceedings.  [Mr GS] to date has not been paid to manage the business; however, he is performing the task only because he is a long-term friend of (the husband’s).  He is not interested in running the business for any other persons.  I understand that Mr [GS] does not wish to continue to act as the manager of the [transport] business as his son has now left to go overseas.  [Mr GS] has had to employ and outside person, and so in future [Mr GS] will have to charge the partnership for this work.

10. That affidavit is in my view good evidence to the effect that it was well known at the time that the consent orders were made, (and indeed had been a live issue in the proceedings before this court) as to whether a transfer could effectively be made to the wife in circumstances where there was a requirement for the nominee to be a person effectively approved by the Department of Transport. 

11. Indeed, it should be observed that in proceedings occurring earlier than 24 March 2009 the case guardians had sought to sell the business, and this was, at all times, resisted by the wife; the wife’s position was always that she should receive it.

12. It is said by Mr Pellandine, who appears on her behalf in the proceedings today, that some legislative changes have occurred in respect of those persons who can be nominees.  Mr Forrest, counsel for the respondents, contends – and I accept – that there is no evidence currently before the court to that effect, save that of the type deposed to by Mr C, to which I have earlier referred – that is, that a suitable person needed to be the nominee.

13. In essence, it seems to me that the argument on behalf of the wife is that things did not work out with respect to this asset as it was contemplated they might. 

14. In that respect, it seems to me appropriate to observe that it is by no means uncommon in section 79 proceedings before this court that one or other of the parties seek to obtain a particular part of the property pool for reasons best known to themselves. It is, for example, by no means uncommon that one or other of the parties seek a particular property because they consider it to be more valuable than what the valuation evidence before the court might reveal. Furthermore, it is by no means uncommon that one party or the other should seek to retain items of property of varying values for what might conveniently be described as sentimental reasons.

15. The obligation upon the court at the time of the making of the orders is to satisfy itself that, in all of the circumstances of the case, they are just and equitable by reference to the evidence before the court at the time.

1. It is, again, by no means uncommon that a party seeks to retain specific property because their belief (right or wrong) is that the property may, either at that time or in the future, present significantly better value than that which is contained in the valuation evidence before the court.  Provided there has been full, complete and appropriate disclosure by each of the parties about all matters relevant to the property pool, there is nothing whatever wrong with this.  It is simply a party making their own decisions about what is best for them in the financial wash-up of their relationship. 

2. It seems to me that that is precisely what has occurred here.

3. The wife, for reasons best known to herself, and for reasons which it is not the job of the court to second-guess, has made a decision that it is in her interests for her to have the business.  At the time that this decision was made by her, (and noting that the decision was made at a time when she had instructed solicitors and was represented by senior counsel) she contended for, and received, that which she asked for – that is, the business.

4. At that time, the wife, in my view, was fully appraised of the potential for adversity in respect of the business.  It is not a sufficient basis for invoking section 79A, for example, that, after orders had been made, property suddenly decreases in value.  So much is an unfortunate consequence of the fact that orders for settlement of property are made at a particular point in time – namely, the date upon which they are ordered.

5. It is also a consequence of the statutory responsibility upon the court, and upon orders therefore made by the court, to bring to an end, as much as is possible, the financial relationship between the parties. 

6. It is against that background that applications pursuant to section 79A need to be addressed. 

7. In my judgment, the wife does not satisfy the ground pursuant to section 79A upon which she relies. I am by no means convinced that it is impracticable for the order to be carried out in the manner she suggests; she has received the business as the order contemplates she would.  The fact that subsequent events have meant that the business is not what she thought it might be, or that it might, for example, be of lesser value than what she thought it might be, are, in my view, not to the point.

8. Secondly, I am not satisfied that, even if the wife can establish that the orders are impracticable in the sense that the business does not bring with it, as it were, the contracts by which it derives the majority of its income, it seems to me, by reference to the principles enunciated for example in Cawthorn, that the events which have transpired are events which could have been reasonably foreseen at the time of the making of the order, and could have been – and indeed in the circumstances of this case readily should have been – in the contemplation of the wife at the time when the orders were made.

Discretion

1. The section involves a residual discretion in the court, even where the court is satisfied that the particular grounds relied upon is made out. 

2. Here, even if the wife had made out the ground relied upon by her, and I had determined that it was impracticable for the order or a part of it to be carried out, I would not exercise my discretion to vary or set aside the order (as to which, see In The Marriage Of Prowse (1995) FLC 92-557; and In The Marriage of Morrison (1995) FLC 92-573).

3. A number of matters have been considered as relevant to the exercise of what I have called the residual discretion pursuant to section 79A.  For example, the legislative imperative to bring finality to litigation in section 81, issues of delay and issues of prejudice or hardship to the party against whom the order is sought (see, eg, Official Trustee in Bankruptcy v Bryan, AJ and The Estate of Christine Ann Gatenby (2006) FLC 93-258).

4. Here, the facts and circumstances already referred to, which include, very significantly, a contention on behalf of the respondents that the transport business should in any event have been sold, and the flagging of potential difficulties in the obtaining of a suitable “nominee” for the purposes of the New South Wales Transport Ministry, and the implacable opposition to sale of the business and adherence to its retention by the wife are in my view significantly relevant matters in respect of the exercise of the discretion.

5. Further, when boiled down to its essential elements, it seems to me that the wife’s case in respect of potential injustice resulting from the orders is that there is the possibility of an approximate $42,000 in taxation payable by her, together with the potential for an amount additional to the $15,000 payable in respect of accrued long service leave (which she accepts she must bear) in respect of the business, which crystallised upon its sale.

6. Counsel for the respondents points out – and the solicitor for the wife properly concedes – that the amount of taxation is firstly, at best an estimate, and, secondly, that the wife will, understandably enough, take such steps as are lawfully available to her to, in any event, reduce the amount of taxation (which indeed might end up being nil). 

7. So too, counsel for the respondents argues – and again, the solicitor for the wife properly accepts – that there may not be any amount additional to the sum of $15,000 owing in respect of long service leave, and further, and in any event, any such amount cannot at the present time be crystallised.

8. The potential for, at worst for those two liabilities is in effect the only real detriment pointed to by the wife as a result of the matters for which she contends.  Even if the taxation amount crystallises in the approximate amount asserted on her behalf, and even if there is an additional amount payable in respect of long service leave, the worst case result (represented by the total amount payable by her) represents but a tiny fraction of the total value of the property of the parties, or either of them, dealt with in the orders made on 24 March 2009.

9. Given the broad discretion available to the court, with respect to orders made pursuant to section 79, it seems to me that that fact alone is a matter appropriate to be taken into account in respect of the residual discretion, and that, too, would have been a matter, had I been satisfied that a ground was made out, sufficient for me to not exercise the discretion in favour of bearing the order as sought.

10. For those reasons I will make orders in accordance with the consent component of the variation to the section 79 orders contained at paragraph 1 of the orders sought by the applicant in the summary of argument filed 8 December 2009. The orders will be:

    Pursuant to section 79A(1A) of the Family Law Act, the orders for settlement of property made on 24 March 2009 be varied by adding thereto …

    I will include thereto sub-paragraphs (a) through (e) of the orders sought by the applicant in that document. 

11. It seems to me inappropriate to make paragraph (f) as a variation to the order, because, in fact, the orders sought at that sub-paragraph are “mechanical orders” for the payment of money, which sums are payable by reference to the integrity of the orders being preserved. 

12. Accordingly, I will make orders simply directing compliance with the orders made on 24 March 2009 in terms of sub-paragraph (f).

13. By oral application made at the hearing this morning, the solicitor for the wife seeks the declaration earlier referred to. 

14. In my view, the court does not have jurisdiction to make an order in those terms.  The court only has jurisdiction in respect to “matrimonial causes”.  Section 4 of the Act specifies that a matrimonial cause is, relevantly, and the court therefore has jurisdiction in respect of:

    Proceedings for a declaration as to the validity of:

    (i)       a marriage; or

    (ii)      a divorce; or

    (iii)     the annulment of a marriage;

    by decree or otherwise.

15. It seems to me that it is no part of the court’s jurisdiction to declare that parties are “living separately and apart,” that being simply one of the preconditions to a decree which is within jurisdiction (ie divorce). 

16. Further, and in any event, even if I am wrong in that conclusion, I would not make the orders sought.

17. At the commencement of the proceedings, the solicitor for the wife sought to tender a document which was ultimately tendered by consent and became Exhibit W2.  That document is a letter from the Office of State Revenue in New South Wales which records the fact that the wife has sought a private ruling:

    regarding the evidence that the Chief Commissioner of State revenue will accept as to whether a marriage is irretrievably broken down for the purpose of section 68 of the Duties Act.

18. Section 68 of the Duties Act 1997 (NSW) is not before me. Section 90 of the Family Law Act provides, relevantly, that the specified:

    agreements, deeds and other instruments are not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only to or in relation to a Territory.

    The section includes deeds or other instruments executed by a person for the purposes of, or in accordance with, an order made under the part. 

19. The intricacies of New South Wales duty law are beyond the scope of the current proceedings. However, it seems on the surface of it odd that section 68 of the Duties Act (NSW) can sit comfortably with section 90 of the Family Law Act. Be that as it may, Exhibit W2 goes on to say:

    I advise that a private ruling will only be issued in relation to the liability or otherwise of a particular transaction, and not the evidence used to determine the liability to duty or otherwise behind that transaction.  In this matter you will need to provide evidence that the marriage has broken down irretrievably.  That evidence can be in the form of a statutory declaration from Mrs [Starkey] as to the facts behind the marriage breakdown, together with evidence from the case guardians that they are acting for Mr [Starkey], plus evidence from them that the marriage has broken down.

20. The husband’s case guardians have always in effect asserted that the marriage has broken down, although it needs to be pointed out that that specific issue has not been directly germane to any relief sought by them on behalf of the husband. 

21. As has been pointed out, the wife, in a response filed in these proceedings on 15 February 2008, maintained a case that can be seen to be directly contrary to that which would be encompassed by a declaration that the parties are living separately and apart.  In that response, the wife set out at paragraph 6, as earlier quoted, that “the husband and wife have not separated” and that “the husband and the wife do not intend to bring their marriage to an end.”

22. Mr Pellandine, who appears on behalf of the wife, contends – and it does not seem to be in dispute – that the wife’s attitude to separation and the end of the marriage is dictated by what can broadly be described as “cultural issues.”  He says that those same cultural issues, will then, as it were, stand in the way of the true facts (which is that the parties are in fact separated, and have been for some considerable time) to the wife’s detriment in terms of any duty she may have to pay pursuant to New South Wales State law. 

23. Mr Pellandine in that respect frankly concedes that, because of those cultural beliefs – and perhaps other reasons – the wife would not, and feels she cannot, declare, or rather make a statutory declaration of the type required by the Office of State Revenue.  It is to, as it were, get around that that the declaration is sought on her behalf.

24. Even if I had jurisdiction, it seems to me that it would not be a proper exercise of the court’s power to make a declaration of the type sought where, although it might be used to obtain an ostensibly legitimate benefit in terms of revenue, it is nevertheless being used as a means of, as it were, “getting around” something which the wife herself is not prepared to do.

25. Confronted by this difficulty, the solicitor for the wife frankly recognised it, but in a sense asserted the unfairness of the position thereby resulting to the wife where, “cultural beliefs” would preclude her from obtaining the benefit of that which would otherwise be obtained by persons without that cultural belief by reason of the true underlying facts.

26. Be that as it may, it seems to me that it would not be a proper exercise of this court’s jurisdiction, if it had it – and I believe it does not – to make the declaration sought by the wife. 

27. On each of those two bases, the oral application made by the solicitor for the wife is rejected.

28. Counsel for the respondents makes application for costs of and incidental to the section 79A application. 

29. The general rule in proceedings under this Act, no less applicable to applications pursuant to section 79A of the Act, is that each party should bear their own costs.  That general rule can be overcome in circumstances where the court is satisfied that any of the matters referred to in section 117(2A) of the Act justify a departure from it. 

30. It is important to point out that sub-paragraph (g) of section 117(2A) provides that in considering any such departure, the court can take into account:

    (g)      such other matters as the court considers relevant.

31. It seems to me clear that the respondents have been wholly successful in these proceedings. 

32. I note that the original orders made in respect of section 79 of the Act provide for the division of relatively substantial property valued at that time in excess of $2 million. When regard is had to the financial circumstances of each of the parties, and bearing in mind that the husband in this case suffers from a significant disability and requires ongoing day-to-day care, there is nothing in the financial circumstances of the wife that would point against an order being made, and there are significant matters relating to the position of the husband that point to a costs order being made.

33. Ultimately, however, I consider that the most important considerations with respect to the making of a costs order are that the wife has been wholly unsuccessful firstly; secondly, that she has been wholly unsuccessful in respect of an application to vary orders made pursuant to section 79 of the Act. Parties are, it seems to me, entitled to rely upon the finality of section 79 orders because that is what is contemplated by section 81 of the Act.

34. In any event, by reason of the matters referred to earlier, when account is taken of the potential amount of any substantial prejudice to the wife, as against the totality of the property pool available for distribution, and the relevance of that matter, in any event, to the residual discretion proposed in the court by section 79A, that the complete lack of success of the wife’s application justifies an order for costs, and I so order.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  17 June 2010