Vincent and Vincent
[2010] FMCAfam 917
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VINCENT & VINCENT | [2010] FMCAfam 917 |
| FAMILY LAW – Property proceedings – interim application resolved by consent – competing applications for costs – what is just – matters to be considered in costs applications. |
| Family Law Act 1975, ss.117 |
| Browne v Green 29 Fam LR 428 |
| Applicant: | MS VINCENT |
| Respondent: | MR VINCENT |
| File Number: | ADC4181 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 4 August 2010 |
| Date of Last Submission: | 4 August 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 30 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tinning |
| Solicitors for the Applicant: | White Berman |
| Counsel for the Respondent: | Mr Richards |
| Solicitors for the Respondent: | Caldicott & Co |
ORDERS
Both interim applications be dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Vincent & Vincent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC4181 of 2008
| MS VINCENT |
Applicant
And
| MR VINCENT |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Vincent “the wife” commenced property proceedings in this court on 23 October 2008. The respondent to the application is Mr Vincent “the husband”.
The parties married [in] 2000 and finally separated in early 2008. They have no children. The parties have two major assets – their former matrimonial home and a [business] at [South East Melbourne].
These reasons for judgment are concerned with interim proceedings relating to controversies arising between the parties about the running of the business. Particularly whether an award of costs should be made in favour of one or other of the parties, now those interim proceedings have been resolved.
In her initiating application, the wife sought orders, in the nature of injunction, restraining the husband from coming onto or remaining on the premises of the [business]. At the time, she was managing the [business].
The [business] is owned by a company, [omitted]. The husband and wife control this company through a family trust. The parties borrowed a significant sum of money to purchase the [business in] 2007.
It is common ground between the parties that they separated in difficult and acrimonious circumstances. It is the wife’s case that the husband was violent towards her, including at the [business] premises and he threatened members of staff there.
The husband denies the allegations against him, although he was charged with a criminal offence by police. This charge was ultimately dismissed, but mutual restraining orders continue to exist between the parties.
This was the background to the wife’s interim application, which effectively sought to exclude the husband from the [business] premises, with the consequence that the wife would retain managerial control of the business. It was her position that the husband had paid employment elsewhere and was essentially disinterested in the day to day management of the business, which had fallen to her.
The husband accepted that the wife had been the principle person in charge of the operation of the [business]. However, in his answering affidavit, he pointed out that he remained a licensee of the [business] and, as such, retained responsibilities for its management pursuant to the provisions of the Licensing Act.
In his capacity as licensee and as a result of his proprietary interest in the business, it was Mr Vincent’s position that he was entitled to receive information about the running of the business. In his affidavit, filed 31 October 2008, the husband outlined concerns he had regarding the mismanagement of the business. In particular, he complained as follows:
·$40,000.00 had been withdrawn from the [business’] bank account.
·The services of the [business’] accountant had been terminated;
·$95,000.00 company tax was overdue.
On 28 October 2008, the wife’s interim application came before the court. At that stage, the parties were able to reach agreement about some of the issues between them. It was apparent from that agreement that the husband conceded the wife should remain managing the [business], provided certain conditions were met. The husband also agreed to be restrained from attending at the [business]. The following orders were made by consent:
“That during the period of the adjournment:-
1.1The wife is hereby restrained from withdrawing funds from [W Bank] (“the business account”) save and except in the normal course of operating the business known as “The [omitted]”;
1.2 That within seven (7) days the wife shall:-
1.2.1credit the business account with the sum of $33,800.00; and
1.2.2provide the husband’s solicitors with copies of all invoices paid in the operation of said business (together with cheque stubs) for the period 1st March 2008 until the date hereof.
1.3The wife will provide the husband’s solicitors each seven days commencing 30th October 2008 with copies of all documents including invoices, details of all wages, daily times and two reads of all tills, and other costs concerning the operation of the business.
1.4 The wife shall ensure:-
1.4.1that the business complies with all laws and regulations relevant to the operation of the said business; and
1.4.2not to purchase equipment, furniture or plant and equipment in excess of $5,000.00 without the husband’s written consent.
1.5 The husband is restrained from:-
1.5.1attending the business premises or remaining in the immediate vicinity thereof;
1.5.2withdrawing any funds from the business account; and
1.5.3approaching any of the employees of the company either directly or indirectly.”
Thereafter, the parties attended a number of financial mediation conferences. At these conferences, the parties agreed that the [business] should be placed on the market, so that their respective financial interests in it could be realised. It seems to have been common ground between the parties that there was no point in proceeding to final hearing, until the [business] had been sold.
It took some time for the [business] to be sold. As such, the various orders made on 28 October 2008 were continued. This state of affairs created fresh controversies between the parties.
On 24 March 2010, the husband filed an urgent application. In his application he sought the discharge of the earlier made injunctive orders. In addition, he sought an order that the wife be directed to provide any documentation required by the [business’] accountant or the [business] broker nominated to sell the [business]. Mr Vincent also sought an order that the wife pay his costs of the application.
The wife formally responded to this application on 27 April 2010. Her position was that the husband’s application was unnecessary and, as such, should be dismissed. She also sought an order that the husband pay her costs.
It is these competing applications which are the subject of these reasons for judgment, particularly whether it is appropriate that an order for costs be made, given that the parties, once again, have been able to compromise the substantive aspects of their respective applications and a buyer for the [business] has been found.
The husband’s application was based on a number of his apparent concerns. Firstly, he was concerned that the wife had not provided the necessary financial documentation to Mr S, the [business] broker, to enable the business to be sold to an entity who had expressed interest in it, subject to being able to inspect its accounts.
Secondly, he raised concerns about the running of the [business], particularly in the context of the wife being required to report to him, on a regular basis, concerning its operation. In particular, he alleged that the wife was not properly banking the [business’] takings. He alleged that the amount not banked fluctuated between around $8,000.00 and $16,000.00 per week.[1]
[1] See husband’s affidavit filed 24 March 2010 at paragraph 12
The husband deposed that he had calculated these banking shortfalls from “printouts” provided to him by the wife. These documents were annexed to his affidavit.[2] The husband also complained that the wife had employed an excessive number of staff to operate the [business], which had unnecessarily inflated the wages bill.
[2] Ibid at paragraph 14
In addition, the husband deposed that he had received a notice from the Australian Taxation Office indicating that, as a director of [the business], he was liable for $66,380.00 in respect of tax, which had not been remitted to the ATO.
A penalty notice to this effect had been issued on 28 November 2008. Thereafter, the husband alleged that the [business’] accountant, a Mr C had informed him that the wife was not paying the business’ taxation liabilities, as they fell due.
The husband had other criticisms of the wife’s management of the business. These are not significant in the overall context of the matter at present. In support of his application to discharge the injunctive orders made earlier, the husband deposed as follows:
“It is not my intention to return to the business on a daily basis or to undermine the wife’s management of the [business] but I simply want to be involved and assure myself that the [business] is running to its best capabilities. I would be prepared to attend at the [business] after hours or when the wife is not present (to ensure that I am not breaching my restraining order). What I wish to do is the following:
a. Check the reads from the tills.
b. Check the number of meals served for lunch and dinner.
c. Check the poker machine sheets.
d. General maintenance of the [business] to ensure that it is being presented in its best light for sale.
e. Assist with the management of staff. The print outs that the wife sends me show a frequent turnover of staff which I may be able to reduce.
f. Ensure that all monies received from the operation of the business are being appropriately banked for the joint benefit of the wife and I.”[3]
[3] Ibid at paragraph 21
The wife responded to this application on 27 April 2010. She seeks the dismissal of the husband’s application and that he pay her costs. In support of her position, she refutes any suggestion that she has not provided the documents required of her of the orders of 28 October 2008.
In particular, she asserted that she had provided the necessary documentation to Mr C and it was he, rather than she, who had been elusive in respect of the requirements of the [business] broker, Mr S.
The wife refuted the husband’s allegations that she was not properly banking the takings of the business. It was her case that he had misinterpreted the spreadsheets provided to him, either for ulterior purposes or through incompetence. In this regard, she deposed as follows:
“I say the husband has presented the misinterpretation and allegation of stealing and mismanagement so as to support an Application by him to come back in and manage the [Business]. I say the husband’s failure to properly read the information that has been provided to him shows that he has no skills in managing the [Business] and attending to do the things that he wants to do.”[4]
[4] See wife’s affidavit filed 27 April 2010 at paragraph 8.5
The wife asserted, in effect, that the husband had fabricated allegations of mismanagement against her to support his application to regain day to day control of the [business], to her potential detriment. She refuted any suggestion that the [business] was being mismanaged by her. In particular, she deposed that the husband was well aware of the circumstances of the tax debt and she had “reduced this debt by continuing hard work and efficient running of the[ business] …”[5]
[5] Ibid at paragraph 13.3
The wife reiterated her earlier concerns that it was untenable for the husband to be permitted to return to the premises of the [business] because of his inability to control his temper, when in her presence or of members of her staff.
She accused the husband of fabricating his concerns about the management of the [business] and asserted that, if he had applied himself properly to the documents supplied to him, he would have been aware that the operation of the [business] was proceedings within its usual parameters. She deposed as follows:
“The financials that the husband has in his possession would indicate that the operation of the [Business] is healthy. It is the husband’s misinterpretation of that information which has apparently lead him to the opposite conclusion. I say that the husband’s conclusions are disingenuous.”[6]
[6] Ibid at paragraph 15.6
This alleged state of affairs was the basis of the wife’s submission that the husband’s further interim application had no basis and should be dismissed. The wife further asserted that she had been put to considerable unnecessary expense and, in such circumstances, the husband should pay her costs.
The parties’ respective interim applications were listed for hearing on 27 May 2010. As is clear from this narrative, the respective positions of the parties are polarised and there is an extreme level of mistrust between them.
In this regard, the husband asserts that the wife has misled him and the court, at earlier mentions of the proceedings, regarding the state of preparedness of the necessary financial documents required to secure the sale of the [business]. In this respect, his counsel, Mr Richards submits that the court can have no confidence in the wife’s credibility.
Given his suspicions regarding the wife’s management of the business, the husband commissioned a chartered accountant to examine the financial documents, which had been provided to him. The accountant concerned was Mr M, who provided a report of his investigations around 24 May 2010.
The contents of Mr M’s report were central in shaping the result of the interim hearing, which took place on 27 May 2010 and which has resulted in both parties now seeking an order for costs from the other.
Mr M was asked by the husband’s solicitor to answer a number of specified questions as follows:
·Were the documents supplied by the wife a sufficient accounting record for the business business;
·In particular, did they comply with the requirements of the court’s order of October 2008;
·Did the documents supplied support a prima facie case that moneys were being misappropriated from the business;
·Does the wife’s alleged failure to supply business activity statements constitute a breach of paragraph 1.4 of the October 2008 orders;
·In the event that the documents supplied by the wife were found to be wanting, in any way, what documents and other information should be provided to the husband, so that he could be properly informed regarding the operation of the business.
In his report, Mr M noted that the husband was precluded from attending at the business concerned, which necessarily limited his (Mr Vincent’s) capacity to take part in decision making regarding it. In this context, Mr M did not regard the documents supplied to the husband to provide an adequate accounting of the business. However, with some qualifications, Mr M considered that the documents concerned did comply with the provisions of the October 2008 order.
In respect of the central issue in the case – had there been a misappropriation of funds – Mr M reported as follows:
“7.1Based on the information provided to me at this time I am unable to form an opinion as to whether there has been any misappropriation of funds from the business by any party.
7.2In this respect I note that I have not had full access to the banking records of the business throughout the relevant period and accordingly have not been able to identify transactions that require further explanation or clarification. I am therefore unable to determine whether there have been payments made out of funds of the business other than in the ordinary course of the business.
7.3I have been able to undertake a limited review of the till reconciliations and cash banked to determine whether the takings of the business have been properly accounted for. The analysis was limited to a five week period commencing the week ended 10 January 2010 to the week ended 14 February 2010.”[7]
[7] See report of Mr M dated 24 May 2010 at paragraphs 7.1 to 7.3 being annexure SH1 to the affidavit of Ms H filed 25 May 2010
Mr M reported that he was unable to comment in respect of issues to do with the lodgement of monthly PAYG withholding statements, quarterly BAS statements and annual income tax returns, as he was not the registered tax agent for the business.
In the light of Mr M’s report, the parties negotiated a compromise of their competing applications on 27 May 2010. The gist of their agreement was that the reporting conditions, stipulated by the earlier orders, would be substantially changed and lieu thereof the wife would provide a number of specified documents to Mr C.
On 27 May, 2010, the following order was made by consent:
“The wife do direct the accountant Mr C to provide to the husband;
a) Copies of any written communication to or from the Australian Taxation Office and the wife and/or the Australian Taxation Office and Mr C on behalf of the wife within seven (7) days of receipt or forwarding,
b) Copies of the monthly BAS prepared in relation to “the [business]” together with a copy of any MYOB statement prepared by the accountant such documents to be provided by the accountant by the 21st day of the following month,
c) List of unpaid creditors, to be provided with the documents referred to in paragraph c) aforesaid,
d) The documents provided by the wife to Mr C for the purpose of preparation of the monthly BAS by the 21st of the following month with the husband to return said documents to the wife seven (7) days thereafter, and
e) A list of any cheque payments made from the business account which are not included in the summary material provide to the accountant for preparation of monthly BAS.”
Following this order, the wife made an application for costs in respect of the interim hearing. It being her position that the husband had been unsuccessful in his application to have the injunctive orders discharged and Mr M had not supported the husband’s contention she was misappropriating business funds.
In response to this application, the husband made his own application for costs. It being his position that the wife’s previous conduct had justified his application in the first place and accordingly, it was proper that an order for costs be made.
The legal principles applicable
The making of a costs order is governed by section 117 of the Family Law Act which provides as follows:
Costs
(1)Subject to sub-section (2) and subsection 70NFB(1) and sections 117AA, 117AB, 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) 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 sub-section (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 term of any such offer; and
(g) such other matters as the court considers relevant.”
Section 117 (1) abolishes, for the purposes of Family Law Act proceedings, the general rule that in civil proceedings costs follow the event. Section 117(2) then provides the court with a general discretion to make costs orders, if it is of the opinion that there are circumstances that justify it in so doing. Section 117(2A) sets out the matters that the court shall have regard to.[8]
[8] See Browne v Green 29 Fam LR 428 at 432
The wife seeks a sum of $6,252.58 by way of costs for the period from 26 March 2010 onwards. The husband seeks the sum of $4,025.00 for costs together with the sum of $8,825.52 which is the amount incurred by him in respect of Mr M’s report.
Following the compromise of the interim proceedings, the costs issue was adjourned for hearing on 4 August 2010. Each party was given leave to file a brief affidavit in support of his or her respective position. Each party has filed such an affidavit.
The husband’s position
In support of his application for costs, the husband relies on an affidavit deposed by himself on 27 July 2010. The truth or otherwise of this affidavit has not been tested by any cross-examination instigated by the wife.
In this affidavit, the husband reiterates his complaint that he had not been provided with proper documentation regarding the running of the [business] by the wife and what documents he had received had not been provided as regularly as the orders as October 2008 had envisaged.
In particular, Mr Vincent repeated his concern that the [business] broker had been delayed in finding a buyer for the business because the wife had not provided him (Mr S), via Mr C, with the financial information required. Notwithstanding both the order of October 2008 and the more recent order of May 2010, the financial documents for the [business] had not been provided to Mr S until late July of 2010.[9]
[9] See exhibit CVL5 to the husband’s affidavit filed 29 July 2010
The husband points to this state of affairs and evidence of a lack of bona fides on the wife’s part. In particular, his counsel, Mr Richards points to what was said in court, on her behalf, on 1 February 2010. Mr White, the wife’s solicitor said as follows:
“My understanding is that this [business] is on the market for sale, the 2009 financials actually having been prepared. That would indicate that at least the financial information to 30 June will have been provided. But again that’s what our instruction – without me speaking, that’s what my understanding of the situation is.”
With the greatest respect to Mr Richards, in my view, this is not an unequivocal statement that the businesses financial records have been completed. In addition, the documents supplied to Mr S in July of 2010, included profit and loss summaries to 31 March 2010, as well as for the financial years ending 30 June 2008 and 2009.
Mr Vincent takes exception to the wife’s assertion that the taxation affairs of the [business] are well managed. In this regard, he relies on a facsimile dated 20 May 2010 from Mr C, which indicates BAS statements for the 2008/2009 financial year were lodged on 13 May 2010 and the statements for the remainder of 2009 were to be lodged shortly.[10] In these circumstances, the husband remains concerned at his potential exposure to the imposition of penalties for late payment of tax.
[10] See annexure CVL2 to the husband’s affidavit filed 29 July 2010
Finally, the husband asserts that the wife continues to be recalcitrant in respect of the provision of the necessary financial information mandated by the most recent orders of the court. In these circumstances, he contends that it would not be appropriate for the court to make any order for costs in the wife’s favour, as her more recent actions have established the necessity for his original application.
The husband’s position is that his inauguration of the current proceedings was vindicated by the wife’s holus bolus disregard for the orders of 28 October 2008, which were intended to put in place a regime for the management of the [business], which would have the following characteristics:
·The wife would have responsibility for day to day control of the business;
·The wife would provide the husband’s solicitors with relevant financial documentation every seven days;
This financial information was intended both to reassure the husband and ensure that the wife was discharging her (and by necessary implication the husband’s) legal obligations in respect of the operation of the business.
It is the husband’s position that the wife has complied with only the first limb of this regime. In respect of the other requirement, he points to the fact that Mr M’s report indicates that the wife has been consistently remiss in regards to her obligation to provide information weekly and it is self apparent that she has not complied with her legal obligations to provide information to the Australian Taxation Office.
The husband concedes that Mr M’s report did not disclose any evidence of misappropriation of funds from the business by the wife. However, it remains his position that other concerns raised by him, about the management of the business, have been vindicated.
As such, it was appropriate for him to have brought the proceedings in the first place and those proceedings have resulted in a modification of the reporting requirements on the wife, which have been crafted in line with Mr M’s report and recommendations.
In written submissions, Mr Richards submitted as follows:
“Whilst the husband has been unsuccessful in seeking the discharge of the injunctive orders precluding his entry upon the business premises, his application has been substantially successful in that he has obtained orders which (if complied with by the wife) will enable him to properly assure himself as to the proper financial conduct of the business.
Further, the proceedings have highlighted the wife’s totally inadequate attendance to the proper accounting processes of the business and its statutory compliance. The husband submits that the substantial advancement of the accounting affairs of the business and in its statutory compliance have followed directly on the husband raising his concerns as to the wife’s proper management of the business.
The husband should be awarded his costs of and incidental to the Application in a Case filed 24 March 2010.”
The wife’s position
The wife is critical of what she sees as the husband’s precipitous behaviour in instituting the current proceedings, without prior formal notice to her. It is her position that if the husband had requested other financial information or suggested an alternative mode of delivery for such information, she would have complied with his request.
It is further her position that the husband has been wholly unsuccessful in his application to discharge the injunctive provisions of the orders of 28 October 2008. In addition, she points to his failure to land his allegations of misappropriation against her. In her submission, these factors should lead the court to make an award of costs in her favour.
It is the wife’s position that the husband’s application was essentially misconceived. He did not have any evidence of her misappropriation of funds. It was premature of him to bring the application prior to instructing Mr M, whose report ultimately exonerated her.
Essentially, the wife argues that if the husband had Mr M’s report, in March of 2010, he would not have brought this application as Mr M’s report would have clearly indicated to him that the application was unwarranted. It is her case that, when Mr M’s report came to her attention, she invited the husband to withdraw his application and put him on notice that, if he did not do so, she would seek costs from him.
In support of her contention that she has behaved reasonably throughout, the wife points to the fact that she consented to the new reporting conditions outlined in the orders of 27 May 2010. The wife refutes any suggestion that she has been negligent or fraudulent in the management of the business.
Consideration of the applicable legal criteria
It is now necessary for me to consider the various matters set out in section 117(2A) to determine whether it is appropriate for an award of costs to be made in favour of one or other of the parties.
a) The financial circumstances of the parties
This issue was not canvassed in the interim hearing before me. Both parties hold managerial positions in the [hospitality] industry. I assume that their financial circumstances are similar. This is not a determinative factor in this case.
b) Legal Aid
Neither party is in receipt of legal aid. Accordingly, this is not a relevant consideration in this matter.
c) The conduct of the parties to the proceedings
It is apparent to me that there is no love lost between the parties and each mistrusts the other to a marked degree. I accept the husband’s evidence that the wife has not been fully compliant with the orders made on 28 October 2008. In particular, she has been tardy and irregular in the provision of the documents to the husband, which the order mandated.
Given the significant level of mistrust between the parties, it was not helpful that she adopted such an attitude, which was inevitably going to increase the husband’s level of suspicion. Accordingly, I do not consider that the wife’s conduct, in these proceedings, can be characterised as blameless.
The main thrust of the husband’s application of 24 March 2010 was that the injunction restraining from attending at the [business] premises needed to be discharged, so that he could exercise some degree of oversight of the business, particularly given his concern that financial irregularities were occurring. When he brought his application, he did not have any independent evidence to support his fears of financial misappropriation.
Rather, Mr Vincent sought to obtain this evidence, from the forensic accountant Mr M, after he had instituted his application. Mr M has not been able to provide him with the unequivocal evidence, which he perhaps anticipated. Instead, Mr M has stated that he is unable to provide a definitive opinion regarding any possible misappropriation of funds because the documentary evidence provided to him was limited.
It would have been more prudent if Mr Vincent had not “put the cart before the horse” and had waited for the forensic accounting report prior to instituting his proceedings. However, in my view, Mr M’s report cannot be regarded as a glowing endorsement of the wife’s management of the business.
Although Mr M accepts that the wife has substantially complied with the order of 28 October 2009, he did not believe that the documents supplied, pursuant to this order, were likely to be able to provide the husband with a comprehensive picture of how the business was faring financially. In the light of this opinion, the parties were able to agree on a new reporting regime.
In all these circumstances, I do not think that the husband’s application can be characterised as totally misconceived, particularly given the extreme level of mistrust between the parties and the wife’s incomplete compliance with the earlier orders.
e) Failure of a party to comply with previous orders
I have already alluded to this consideration under the previous heading. It is a significant factor in the husband’s favour that the wife has not strictly complied with the terms of the order of 28 October 2008. Since the husband instituted his more recent application, the parties have significantly remodelled these orders, in the light of Mr M’s recommendations.
f) Party wholly unsuccessful
I do not think it can be said that either party has either been totally successful or totally unsuccessful in respect of the ultimate outcome of the interim proceedings. True it is that the husband did not persist with his application to discharge the injunctive orders of October 2008 and he has been unable to ground his allegations of misappropriation against the wife. However, he has been able to secure a significant redrafting of the financial reporting provisions required of the wife.
g) Offers in writing to settle
The wife relies on two letters dated 1 April 2010 and 25 May 2010 written by her solicitor to the husband’s solicitors, in which she invited the husband to withdraw his interim application and putting him on notice that, if he did not do so, she would seek costs against him. The basis of this offer was that the husband’s allegations of fraud were misconceived and/or disingenuous.
However, the wife makes no specific proposals regarding the modification of the October 2008 order. The discussions, between the parties, leading to the modification of this order occurred on the date set for the interim order. Accordingly, in my view, it was premature for the wife to suggest to the husband that he should desist from his application.
Conclusions
Having considered the various matters outlined in section 117(2A) of the Act, I have come to the conclusion that it would not be just to modify the general rule applicable to Family Law Act proceedings that each party should bear his or her own costs. In my view, neither parties’ conduct in these proceedings can be characterised as without reproach.
Accordingly, I propose to dismiss all outstanding interim applications and make no other orders.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 30 August 2010
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