VASSALO & GRAHAM

[2011] FamCA 379

FAMILY COURT OF AUSTRALIA

VASSALO & GRAHAM [2011] FamCA 379

FAMILY LAW - COSTS – where the wife seeks costs for proceedings brought about to enforce orders for property settlement – whether the circumstances justify the making of a costs order – consideration of the s 117(2A) factors– where the husband’s compliance with previous orders did not occur until proceedings were commenced by the wife – orders that the husband pay the wife’s costs of and incidental to the proceedings.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Vassalo

RESPONDENT: Mr Graham

FILE NUMBER: ADC 2195 of 2007

DATE DELIVERED: 17 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wabnitz

SOLICITOR FOR THE APPLICANT: Townsends

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Nicolas & Co

Orders

1. The husband pay the wife’s costs of and incidental to the proceedings for enforcement of the orders of 6 August 2010 being the costs of the wife incurred of and incidental to the proceedings filed by her on 11 January 2011 such costs to be agreed and in default of agreement within twenty-eight [28] days to be as taxed.

1. All proceedings are dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 2195 of 2007

Ms Vassalo

Applicant

And

Mr Graham

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The application I have before me is the application of the wife for costs of the proceedings brought by the wife commencing in January 2011 to enforce the orders of Justice Fowler made by way of final property settlement orders on 6 August 2010.  The husband opposes the order for costs.  Counsel for the husband seeks orders today that each party bear their own costs of and incidental to the enforcement proceedings. 

2. I have before me the application of the wife already referred to, filed on 10 January 2011, and the husband’s response together with the affidavit material filed since then.

3. The provisions of section 117 of the Family Law Act 1975 (Cth) (“the Act”) make it clear that subject to subsection (2) and other sections not relevant for this purpose, each party to the proceedings shall bear his or her own costs.

4. Subsection (2) provides that if in proceedings under this Act the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4) 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. The provisions then set out the particular matters to be considered in section 117(2A).

5. The background to this matter is that the property settlement proceedings were contested and came on for final hearing before Justice Fowler, who delivered his judgment on 6 August 2010 and made specific detailed orders.  In those orders it was provided in paragraph 1, that the husband was to do all things necessary to transfer to the wife his interest in the properties at 7A & 7B B Street, and forthwith upon that transfer, the wife was to do all things necessary to discharge the husband from his liability under the mortgage. 

6. The order also provided in paragraph 4 that the husband discharge the wife from any liability under the terms of the mortgages charged over the H property and to pay the wife the sum of $160,185.

7. There are other orders made by his Honour on that date, but those mentioned are the significant ones in relation to this application. 

8. That order made on 6 August 2010 did not specify a time within which each of these steps should be taken, but clearly, in the ordinary course, those matters would require compliance within 28 days, otherwise interest would begin to run. 

9. The correspondence filed as annexures to the affidavits indicates that there was an appeal from the decision of Justice Fowler which, on the face of it, seems to have delayed the parties’ compliance with the orders of Justice Fowler.  There was no specific stay granted pending the appeal to the Full Court.

10. A significant letter forming part of the correspondence between the solicitors is the letter dated 2 December 2010, in which the solicitors for the wife wrote to the solicitors for the husband referring to the enclosure of transfer documents signed by the wife and asking the husband to arrange for their prompt return and warning that:

    “Please note if your client fails to sign and return these documents, we will initiate enforcement proceedings. ”

11. The compliance by the husband with the payment of the moneys and the orders in relation to the transfer of the property to the wife did not take place until after the wife filed the proceedings in January 2011. 

12. The husband’s solicitors were allegedly awaiting some proof of the discharge of the mortgage before handing over the transfer.  It is submitted that the order provided for the discharge of the mortgage, and in the normal course of events, the transfer would not be able to take place without the consent of the husband to the transfer, subject to the mortgage or the discharge of the mortgage.  I am satisfied from the correspondence and affidavits on file that the wife took all appropriate steps to bring about a situation where all of the orders could be carried into effect. 

13. I turn to the provisions of section 117(2A).

14. Subsection (a) refers to the financial circumstances of each of the parties to the proceedings.  The indebtedness of the husband in the Statement of Financial Circumstances filed out of time but received by me this morning claims that the husband has significant borrowings, although the original borrowing was by way of a guarantee from one of the entities referred to in the proceedings before Justice Fowler. 

15. The wife’s financial circumstances I glean from the judgment of Justice Fowler. 

16. The question of subsection (b), legal aid, is not relevant in this matter. 

17. The conduct of the parties to the proceedings (subsection (c)) including the filing of documents is not significantly relevant, save and except as it relates to the failure of the husband to comply with the orders until after the proceedings were commenced by the wife. 

18. That is also a consideration under subsection (d), whether the proceedings were necessitated by the failure of a party to proceedings to comply with previous orders of the Court. 

19. Subsection (e) refers to whether any party to the proceedings has been wholly unsuccessful in the proceedings.  It is not directly relevant although could be considered on the basis that the wife has been successful in obtaining enforcement of the orders after she brought the application for enforcement. 

20. Subsection (f) relates to offers in writing.  There have been negotiations to resolve the matter which were unsuccessful. 

21. Subsection (g) is “any other matters the Court considers relevant”. The main matters that are relevant to this application are the provisions of the Act and the necessity for the wife to bring proceedings before this Court to bring about a situation where the orders of the Court made in August 2010 could be brought obeyed.

22. In considering those matters, therefore, I am satisfied that it is just, and in the terms of section 117 subsection (2), appropriate to make an order that the husband pay the wife’s costs of and incidental to the proceedings for enforcement of the orders of August 2010, being the costs of the wife incurred of and incidental to the proceedings filed by her in January 2011, such costs to be agreed, and in default of agreement, within 28 days as taxed.

23. That dismisses the proceedings outstanding. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 May 2011.

Associate: 

Date:  26 May 2011