TENNANT & TENNANT
[2018] FamCA 111
•23 February 2018
FAMILY COURT OF AUSTRALIA
| TENNANT & TENNANT | [2018] FamCA 111 |
| FAMILY LAW – ENFORCEMENT OF FINAL PROPERTY ORDER – Whether respondent should meet applicant’s rental costs due to respondent’s delay in releasing applicant from guarantees – Whether Court has power to make an order for damages – Where applicant argued s 117 Family Law Act (Cth) enables Court to make an order for damages – Where no source of power to make an order for damages was found – Where there was no evidence of causal connection between respondent’s delay and applicant incurring rental expenses FAMILY LAW – ENFORCEMENT OF FINAL PROPERTY ORDER – Whether respondent failed to provide copies of family photos and videos per final Orders – Where it was found respondent had complied with Order FAMILY LAW – ENFORCEMENT OF FINAL PROPERTY ORDER – Whether interest should be paid on superannuation split – Where there was no evidence of calculation of base amount in accordance with Part 6 Family Law (Superannuation) Regulations 2001 (Cth) FAMILY LAW – ENFORCEMENT OF FINAL PROPERTY ORDER – Whether respondent was entitled to payment of and interest on outstanding base amount on superannuation split – Where parties should to retain an accountant to calculate the base amount and obtain an invoice for expenses involved in giving effect to payment split FAMILY LAW – COSTS – Whether either party was entitled to costs of application – Where it was ordered each party bear their own costs |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) Family Law (Superannuation) Regulations 2001 (Cth) |
| Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 |
| APPLICANT: | Ms Tennant |
| RESPONDENT: | Mr Tennant |
| FILE NUMBER: | BRC | 10894 | of | 2014 |
| DATE DELIVERED: | 23 February 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 19 February 2018 |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Hackett |
| SOLICITOR FOR THE RESPONDENT: | Wilson Haynes Solicitors |
Order
The Amended Application in a Case filed 5 February 2018 be dismissed.
The Response to an Application in a Case filed 11 January 2018 and 13 February 2018 be dismissed.
There be no order for costs.
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 Tennant & Tennant 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 BRISBANE |
FILE NUMBER: BRC 10894 of 2014
| Ms Tennant |
Applicant
And
| Mr Tennant |
Respondent
REASONS FOR JUDGMENT
On 14 December 2017 the applicant filed an Application to enforce paragraphs 118 and 130 of a final property Order made by consent on 14 February 2017 (“the 2017 Order”). Paragraph 118 of the 2017 Order required the respondent to procure the release of the applicant from guarantees provided by her relating to property to be retained by the respondent and paragraph 130 of the 2017 Order required the respondent to provide copies of family photos and video recordings to the applicant.
When the matter came before me on 15 January 2018 the following Order was made by consent:
(1)The matter be adjourned to 10.00 am on 19 February 2018.
(2)The wife shall file and serve any further material in response to the husband’s Application in a Case filed on 11 January 2018 on or before 5 February 2018.
(3)The husband shall file and serve an affidavit confirming his compliance with paragraph 118 of the Order made by consent on 14 February 2017 on or before 5 February 2018.
On 5 February 2018 the applicant filed an amended Application in a Case in which the relief sought in the original Application in a Case in relation to the guarantees was abandoned. The relief sought in the amended Application is as follows:
(1)The respondent pay the applicant rental costs of $32,685.24 for the failure to comply with order 118, from 28/2/2017 to the release of the CBA guarantees on 23/1/18 calculated as follows:
(a)Interest on the above amount at a rate of 7.5 per cent per year for 330 days or 0.91 of a year is $2,088.24.
(b)The rental costs of the applicant of $30,597.00.
(c)This is to be paid within 7 days.
(2)…
(3)…
(4)The respondent pay the applicant the amount of $1498.64 for legal costs relating to this application.
(5)…
(6)The respondent complies with order 130 and provides all outstanding photographs and all DVD’s within 7 days.
Paragraphs 2, 3 and 5 of the amended Application in a Case were dismissed at the commencement of the hearing on 19 February 2018 with the consent of both parties.
On 13 February 2018 the respondent filed a further Response to the mother’s amended Application in a Case (intended to be an amended version of the one filed on 13 January 2018 although not marked as an amended version). The effect of the further Response was to add a new paragraph numbered 2. The relief sought by the respondent in his Response is as follows:
(1)The applicant pay the respondent interest of $15,659.92 in relation to the late payment of part of the superannuation base amount ($342,293.27) pursuant to the consent order 111 from the operative date being 4 business days from the date of the orders (20 March 2017) (sic) until the date of payment being 29 September 2017 (221 days), calculated as follows:
(a)Interest on $342,293.27 at a rate of 7.5 per cent per year for 0.61 years (221 days) is $15,659.92.
(2)The applicant pay the outstanding base amount of $5,106.73.
(3)The applicant pay the respondent interest of $344.70 in relation to the non-payment of the remaining superannuation base amount $347,400 - $342,293.27 = $5,106.73) pursuant to consent order 111 from the operative date being 4 business days from the date of the orders (20 March 2017) (sic) until the date of hearing being 15 January 2018 (329 days), calculated as follows:
(a)Interest on $5,106.73 at a rate of 7.5 per cent per year for 0.9 years (329 days) is $344.70.
(4)…
(5)…
Paragraphs 4 and 5 of the Response were not pressed at the hearing on 19 February 2018.
Material relied upon
The applicant sought to rely upon two affidavits sworn by herself. The first in time was filed 14 December 2017 and comprises 272 pages including annexures. The second affidavit was filed 5 February 2018 and comprises 228 pages including annexures.
Counsel for the respondent took objection to substantial parts of each affidavit but given that this matter was in a duty list a formal ruling on the objections was sensibly not pressed. Upon review of the material many of the objections are well founded.
The respondent’s material comprises two affidavits sworn by the respondent. The first in time was filed on 11 January 2018 and comprises 102 pages including annexures and the second was filed on 6 February 2018 and is very short and confirms that the two remaining Commonwealth Bank of Australia (“CBA”) mortgages, which were the subject of the two remaining guarantees affecting the applicant, were discharged on 23 January 2018.
The applicant’s claim for rental costs
As noted above, the applicant contends that the respondent should meet her rental costs for the period 28 February 2017 to 23 January 2018 due to the time it took him to cause her to be released from the guarantees provided by her to the CBA.
The first question that arises is what power the Court has to make an order for damages in these circumstances.
The applicant submitted that s 117 of the Family Law Act 1975 (Cth) (“the Act”) was the source of power.
Section 117 provides as follows:
Costs
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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.
(3) – (5) have no application to the circumstances of this case.
The term ‘costs’ is not defined in the Act but the Dictionary to the Family Law Rules 2004 (Cth) (“the Rules”) provides that:
Costs means an amount paid or to be paid for work done by a lawyer, and includes expenses.
The term ‘expenses’ is also defined in the Dictionary to the Rules:
Expense means an amount paid to a third party, other than a lawyer, for work done in a case or services provided for a party.
Section 117 does not provide a source of power to make the order sought by the applicant.
Section 105 of the Act is a general provision empowering the Court to enforce its orders but it does not set out any specific powers.
Chapter 20 of the Rules deals with the enforcement of financial orders and obligations but I can find no power therein to make an order of the type now sought by the applicant.
Even if I am wrong in relation to the absence of a source of power to make the said order I am not persuaded, on the evidence before me, that there is a causal connection between the delay in the respondent obtaining the release of the guarantees and the applicant incurring rental expenses. The applicant contends that she was unable to obtain a loan for the purchase of her own home because of the guarantees. No evidence was produced to support that contention. Further, even if the applicant had been able to obtain a loan for the purchase of her own accommodation, the interest on any loan would necessarily have to be deducted from the damages claimed.
Enforcement of paragraph 130 of the 2017 Order
Paragraph 130 of the 2017 Order provides:
130. That on or before 14 days after the making of these Orders, the Husband shall provide to the Wife a copy of all family photos and videos/recordings on a hard drive from birth to date and all memento photo albums.
The applicant’s complaint appears to be limited to an alleged failure to provide DVDs on the hard drive for the period April 1996 to July 2001.
The respondent deposes in his affidavit filed 11 January 2018:
17. Order 130 has been complied with, as all digital copies of all photos (13,568 in total) have been given to the Applicant and all digital copies of all memento albums were also given on the same hard drive. Subsequently the Applicant argued that the order related to hard copies of the albums, which I disagreed with but in the spirit of compromise, I later ordered and delivered all memento albums in hard copy form and provided them to her as stated in her own evidence, at a cost to me of $2,781.00 (refer to Annexure “9”).
I am not persuaded on the evidence before me that there has been a failure by the respondent to comply with paragraph 130 of the 2017 Order.
The respondent’s claim for interest on the delayed payment of the superannuation split
Pursuant to paragraph 111 of the 2017 Order the respondent was entitled to a superannuation split from the Tennant Superannuation Fund of a base amount of $347,400, calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”).
It is common ground that the applicant paid a sum of $342,293.27. Interest on that sum at the rate of 7.5 per cent is sought by the respondent from 20 March 2017 to the effective date of payment viz. 29 September 2017 (although I note the bank cheque is dated 2 August 2017).
Part 6 of the Regulations provides for adjustments to be made to a base amount for applicable adjustment periods. The applicable adjustment period in this case was from the operative time pursuant to the Order i.e. four business days from the date of the 2017 Order and the day before the payment becomes payable. Adjustments may be negative or positive.
There is no evidence before me of the calculation of the base amount pursuant to Part 6 of the Regulations. Accordingly, it is not possible to calculate what (if any) interest should be paid.
I note that as the calculation of the base amount makes adjustments based on the applicable interest rate pursuant to the Regulations during the adjustment period, I am not convinced that interest would be payable as claimed in any event.
Respondent’s claim for payment of the outstanding base amount and interest thereon
The respondent seeks enforcement of what is contended to be the outstanding base amount of $5,106.73 and interest on that sum.
As noted above there is no evidence before me of the calculation of the base amount pursuant to Part 6 of the Regulations. It would seem unlikely that adjustments made pursuant to the Regulations would be for a sum in the amount indicated but I cannot determine that on the evidence before me.
It is apparent that the applicant has deducted from the payment made to the respondent certain accountant’s costs which she contends have been incurred in giving effect to the payment split. The applicant provides no evidence to support that contention and the invoices annexed to the respondent’s affidavit filed 11 January 2018 do not clarify what costs relate to giving effect to the payment split.
Pursuant to paragraph 115 of the 2017 Order each party is obligated to contribute an equal sum (whether by themselves or by application of the superannuation fund assets) to the costs and fees involved in giving effect to the payment split.
It seems to me that the most efficacious way of resolving the dispute in relation to the superannuation issue, is for the parties to retain an accountant to undertake the calculation of the base amount in accordance with Part 6 of the Regulations and obtain an invoice specifically for the costs and fees involved in giving effect to the payment split. If there is a shortfall in the payment required under the 2017 Order, it should be paid by the applicant forthwith and the respondent should pay, as required by the 2017 Order, one half of the costs and fees involved in giving effect to the payment split.
Costs
Each party applies for costs.
The applicant seeks a fixed sum of $1,498.64 and it is conceded by the respondent that the applicant incurred legal costs in that sum.
The respondent seeks costs of the application generally.
How costs applications are determined
In this jurisdiction parties are generally required to bear their own costs.[1] However, where justifying circumstances exist, s 117(2) of the Act empowers the Court to make such order for costs as the Court considers just.
[1] Section 117(1) Family Law Act 1975 (Cth)
In the exercise of that discretion regard must be had to the factors set out in s 117(2A) of the Act, so far as they are relevant.
The relevant parts of that section are set out above.
No one factor has more weight than any other nor is it necessary for more than one factor to be present.[2]
[2] see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 at 130
Discussion in relation to the competing costs application
The 2017 Order required the respondent to procure the applicant’s release from guarantees within 14 days of the Order and provide evidence of the applicant’s release within 90 days of the Order.
The applicant was not released from the guarantees until 23 January 2018.
The respondent contends that he was unable to procure the release because the applicant had not complied with her obligation to provide him with the superannuation split and he contends that the bank would not release the guarantees without that having occurred.
The applicant challenges that contention on the basis that the respondent was able to acquire other property during the relevant period.
The respondent contends that he took all reasonable steps to comply with paragraph 118 of the 2017 Order and notified the applicant both prior to and subsequent to her filing her Application that the guarantees would be released on 23 January 2018. He made an offer to resolve the matter which is contained in Exhibit 1. The terms of the offer assume his success in relation to all matters for which he sought the court’s intervention. He has not been successful.
The obligations imposed on each party were not stated to be dependent upon each other yet it is apparent that each party failed to promptly carry out their obligations under the Order.
Each party contends that their delay occurred largely because of circumstances beyond their control. I have already mentioned the respondent’s reason for delay. In the applicant’s case she contends that she experienced difficulty liquidating overseas assets of the superannuation fund. She contends that she was prohibited from liquidating the Australian investments by paragraph 113 of the 2017 Order.
Both parties are employed but, in any event, a party’s impecuniosity would not of itself be a sufficient reason to refuse to make a costs order.
Neither party has been successful in obtaining the relief sought by them.
The applicant’s material was in many respects irrelevant to any issue in dispute and significant parts of her material were otherwise inadmissible.
On balance I do not propose to make any costs order.
Conclusion
I propose to dismiss the amended Application in a Case filed on 5 February 2018 and the Responses filed on 11 January and 13 February 2018 and each party will bear their own costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 February 2018.
Associate:
Date: 23.02.2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Damages
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Causation
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Costs
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Remedies
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