Waldon and Kipley-Waldon (No 4)

[2014] FamCA 1210

FAMILY COURT OF AUSTRALIA

WALDON & KIPLEY-WALDON (NO 4) [2014] FamCA 1210

FAMILY LAW – PROPERTY – Application for a stay of costs orders pending the determination of an appeal against those orders – Application dismissed – Order that husband pay wife’s costs

FAMILY LAW – PRACTICE AND PROCEDURE – Husband’s substantive application adjourned generally

Family Law Act 1975 (Cth) ss 117, 118

Trahn v Long, (No.2) [2008] FamCAFC 194

APPLICANT: Mr Waldon

RESPONDENT: Ms Kipley-Waldon

FILE NUMBER: HBC 246 of 2012

DATE DELIVERED: 11 December 2014

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 11 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Applicant in person

COUNSEL FOR THE RESPONDENT: Mr Fitzgerald

SOLICITOR FOR THE RESPONDENT: Fitzgerald & Browne

Orders

1. The husband’s interlocutory application (filed 21 November 2014) for a stay of the costs order made on 14 August 2014 be dismissed.

2. The husband’s interlocutory application (filed 21 November 2014) that the wife be restrained from leaving the Commonwealth of Australia and his oral application that her passport be held by the court be dismissed, and IT IS NOTED that such dismissals were pursuant to s 118 of the Family Law Act (Cth) 1975.

3. The husband’s substantial application initiating proceedings (filed 21 November 2014) be adjourned generally:-

   (a)with liberty to restore on the giving of twenty one (21) days notice with the filing of an affidavit; and

   (b)this is a self-executing order that if an application is not made to restore the initiating application on or before 11 December 2015 that application is and will be dismissed.

4. The husband pay the wife’s costs of these applications of thirteen hundred dollars ($1,300), such amount to be paid within twenty eight (28) days from the date of this order.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldon & Kipley-Waldon (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 246 of 2012

Mr Waldon

Applicant

And

Ms Kipley-Waldon

Respondent

REASONS FOR JUDGMENT

1.This is an application by Mr Waldon, (‘the husband”) for orders against Ms Kipley-Waldon, (‘the former wife’). 

2.The proceedings which are before me today amount to an application filed 21 November 2014 in which the husband seeks final orders restraining the former wife from leaving the Commonwealth of Australia and, in his submission, vary those orders to require that the Court make orders impounding the wife’s two passports to prevent overseas travel. 

3.I note that the application itself seeks no interim orders; however, it has been argued today on the basis that this is an application for interim orders, and I will treat it on that basis.  The second part of the husband’s application is that contained in his application in a case filed 21 November 2014 where he seeks an order that: -

a costs order in the matter HBC246 of 2012 be set aside pending the appeal SO57 of 2014. 

4.I enquired of the husband what the nature of this order was, and I did that on two occasions, and he indicated to me, and I accept, that it’s an application for stay a of a costs order which was made by me on 14 August 2014 in a non-assessed sense, and it seems an agreed fact that on 13 November 2014 those costs were assessed at $21,118.43.  I have treated, as I said, the application as being the stay of that order and not an application for an extension of time or a review of that within the context of the Family Law Rules 2004 (Cth), which was alluded to by Mr Fitzgerald in his submissions. Those are the two applications to which I have to consider today.

5.The husband appeared by telephone at his own request and I gave permission in advance of him to do so.  The former wife appeared with counsel today and submissions were made on her behalf. 

6.The material before me which I have referred to earlier, but, as these are my reasons, I will set it out now:-

(1)the affidavit of the husband sworn 21 November 2014, document 69, which is very short in compass, it simply provides:- 

An order is sought seeking that the costs awarded against the applicant in the matter HBC246 of 2012 be set aside pending the appeal, SOA57/2014; 

(2)an application in a case, presumably filed on 21 November 2014, in which the husband seeks the orders to which I have referred to earlier, and that is document 68:-

(3)the affidavit of the husband in support of his application for an injunction restraining the wife from leaving the Commonwealth of Australia and seemingly requiring the impounding of the former wife’s two passports pending the outcome of the appeal.  That affidavit is again in short compass, and I will read it into the judgment.  It provides:- 

The respondent has delayed her pending retirement by 13 months.  The applicant believes that the respondent is unlikely to now retire prior to 18 December 2014 and travel overseas on a one-way basis to avoid her debt and liability to the applicant prior to a fair and equitable settlement that is sought. 

(4)He also relies upon his initiating application, which is document 66, in which he seeks an order restraining the wife from leaving the Commonwealth of Australia, and I have referred to that earlier. 

(5)A further document relied upon in this proceeding is the husband’s notice of grounds of appeal filed 2 September 2014.  In that appeal the husband seeks to challenge the order made by me on 14 August 2014.  Whilst on the face of it the appeal only relates to that order, I will be treating this matter as if the husband was challenging both the orders, although it is a matter for him if he wishes to seek leave to extend time and take whatever steps he considers appropriate in relation to the earlier orders.  That ground of appeal sets out the basis upon which he says that I made an appealable error in respect of both of those orders. 

(6)The former wife filed her affidavit which is document 71 sworn 5 December 2014.  In that she noted the following:-

·She has retired from the public service and will finish her employment tomorrow and will receive her pension entitlements tomorrow. 

·She will be travelling overseas between 1 March 2015 and 1 June 2015, holidaying in Europe.

·She remarried in 2014 and she and her husband live in their home, which is Hobart.  She has a 25 per cent interest in that home. 

·She also says she has a home in D Street, Suburb B, which she inherited from her mother.   She says that Hobart is her permanent place of residence and, at least during the course of these proceedings and no doubt during the course of the marriage, it appears not an issue that the parties have resided in Tasmania for at least a significant period of time.  She says that she has no intention of moving overseas. 

·She has two adult daughters living in E Town and Melbourne, and between them they have five grandchildren. 

·She annexes copies of her airline tickets and then gives a history of the proceedings, including my orders of 7 February and 6 March and some details of the appeal. 

(7)In addition, I had regard to other documents to which the parties are aware and to which I have referred in the course of today’s hearing.  They include the orders made by me on 19 May 2014 and the reasons upon which those orders are based, the order made by me on 14 August 2014 and the reasons upon which they were based. 

(8)Also included was the order of 7 February 2014, in particular order 3, from which I quote:-

The applications in a case filed by the husband on 16 September 2013, 21 November 2013, 4 December 2013 and 24 January 2014 are dismissed. 

(9)It was noted in that order that the husband’s application regarding the former wife leaving Australia was withdrawn and dismissed and was not heard on its merits. 

(10)The next document to which I have had note to is the husband’s application in a case filed 14 February 2014 I note in passing that this was issued about a week after my order of 7 February 2014 in which he sought amongst other orders that:-

The respondent does not travel overseas before the complete and final determination of all matters in this litigation. 

(11)That aspect of the application in a case was determined by me on 6 March 2014, and the whole of the application was dismissed, pursuant to s 118 of the Family Law Act 1974 (Cth) (‘the Act’).  I was satisfied that that application was frivolous or vexatious and I dismissed the application. 

(12)The matter came back before me on 4 April 2014, and I have had regard to the order made on that date and the reasons upon which that order was based. On that date the husband sought again that the Court make an order that the former wife be restrained from leaving the Commonwealth of Australia. That was an oral application. I gave him permission to make that oral application, and I again dismissed that application pursuant to s 118 of the Act, having determined that it was either vexatious or frivolous. Neither of those orders has been challenged and remains in place.

THE HISTORY OF THE PROCEEDINGS

1. The history of the proceedings, which are set out in paragraphs 1 to 6 my reasons for judgment delivered 19 May 2014, are as follows:-

   1.This is an application by Ms Kipley-Waldon (“the wife”), pursuant to Rule 10.12 of the Family Law Rules 2004 (Cth), in which she seeks summary dismissal of substantive proceedings commenced by Mr Waldon (“the husband”) in March 2013. The husband’s substantive proceedings are for orders to be made to set aside consent property orders made by a Registrar of the Family Court on 5 January 2012. If that relief is granted the husband then seeks property orders under s 79 of the Family Law Act1975 (Cth) (“the Act”).

   2.In her application for summary dismissal, the wife contends that there is no reasonable likelihood of success by the husband in his application and/or that the husband’s application is a frivolous or vexatious proceeding and as such should be dismissed.

   The husband’s proceedings

   3.On 25 March 2013 the husband filed a substantive application in the Family Court seeking orders under Part VIII of the Act. The initial application was prepared and filed by the husband who was acting on his own behalf. It was difficult, if not impossible, to discern from the words contained in that application, precisely what orders and/or relief the husband sought.

   4.Fortunately, the husband sought legal advice and on 25 July 2013 he filed an amended application seeking orders that:-

   (a)the consent property orders made 5 January 2012 be set aside;

   (b)the net assets of the parties be divided on a 50/50 basis; and

   (c)the net superannuation interest of the parties be split as between them on an equal basis.

   5.The amended application made clear the relief sought by the husband and he has pursued those orders since that time. The property orders which the husband seeks to set aside were made by a registrar of the Family Court, at the request of both the husband and the wife, on the 5 January 2012. They were property adjustment orders under Part VIII of the Act.

   6.The wife filed a response and later an amended response[1] to the husband’s initial application.  The wife opposes the orders sought by the husband and asserts the integrity of the January 2012 consent orders.

THE BACKGROUND AND EVIDENCE

[1] 4 November 2013.

1. The background to the parties’ relationship which is set out by me in paragraphs 16 to 29 of my reasons for judgment delivered 19 May 2014, and is as follows:-

   16.Each of the parties was born in 1948.  They married in … 1971 and separated in 2009.[2]  In the proceedings before Federal Magistrate Baker (as she then was) she found:-[3]

   27. The wife left the matrimonial home on or about 22 January 2009 and the parties have not resumed cohabitation as man and wife. On two occasions, once in 2009 or 2010 and the other time in 2011, they stayed overnight together with no physical contact. This was not a resumption of cohabitation in the terms of s.50 of the Act.

   [2] Findings of Strickland J in Waldon & Kipley-Waldon [2013] FamCAFC 108.

   [3] Kipley-Waldon & Waldon [2012] FMCAfam 1013.

   17.There are no children of the marriage aged less than eighteen years. 

   18.On 4 April 2012 the wife filed an application for divorce.  The husband opposed that application and filed a response.[4]  The divorce application was heard on 29 April 2012 and on the following day Federal Magistrate Baker (as she then was) delivered her reasons for judgment and made the divorce order.

   [4] 27 April 2012.

   19.The husband sought to appeal that order but was late in doing so. As a consequence the appeal was dismissed as being out of time however Strickland J, on the appeal said:-[5]

   44.… in any event, having read Her Honour’s judgment and deciphered the purported grounds of appeal that the husband seeks to rely upon, I can state that the appeal had no chance of success if the husband had been unable to pursue it.

   [5] Waldon & Kipley-Waldon [2013] FamCAFC 108.

   20.In March 2013 these proceedings were commenced and were followed by a number of events in the Family Court.  On 22 October 2013 these proceedings were transferred by a registrar of the Family Court to the Federal Circuit Court.  In the later part of 2013 and early 2014 there was a flurry of litigious activities between the husband and wife.  In these proceedings the husband filed a number of applications in a case on 16 September 2013, 21 November 2013, 4 December 2013 and 24 January 2014 seeking various orders.

   21.The wife had filed responses to each of these applications in a case and on 3 February 2014 a judge of the Federal Circuit Court transferred the proceedings back to the Family Court, as being a complex matter.

   22.The proceedings were listed before this Court for directions on 7 February 2014.  At that directions hearing the Court dealt with a number of issues:-

   (a)Consent orders were made with regard to the release and use of funds from the sale of the property at [R Street, Suburb A] (‘[Suburb A]’).

   (b)A contravention application was withdrawn and dismissed.

   (c)The husband’s case applications of September, November, December 2013 and January 2014 were dismissed.

   (d)The Court noted that the husband’s application seeking orders to restrain the wife from leaving Australia was withdrawn and dismissed, and that it had not been heard on its merits.

   (e)The wife’s interlocutory applications were dismissed except for her application with regard to summary dismissal of the husband’s proceedings, which application the wife wished to pursue.  The wife’s summary application was tentatively listed for hearing in April 2014.

   (f)The legal costs of all parties were reserved in those orders.

   23.To enable understanding of the issues between the parties, the Court directed that, on or before 28 February 2014, the husband files and serves:-

   (a)a document setting out the legal basis upon which he seeks to set aside the consent property orders made 5 January 2012; and

   (b)all affidavit material he relied upon in relation to his substantive application to set the consent orders aside.

   24.At that time the Court offered the husband further time to enable him to collect, collate and file his affidavit material.  The husband, who had by this time ceased to be represented, asked that the matter be expedited and assured the Court that he could easily comply with the directions within the time allocated.

   25.The wife was directed to file and serve any material in reply before 20 March 2014 and the summary dismissal application was fixed for hearing 4 April 2014.

   26.      In those directions the Court noted:-[6]

   [6] Orders dated 7 February 2014.

   9.… there may be an application by the wife for summary dismissal if the legal and/or factual materials are insufficient to base an application to set the consent order aside. (Original emphasis)

   27.On 14 February 2014 the husband filed an application in a case seeking orders.  That application was dealt with and the husband’s application was dismissed on 6 March 2014.  It was unclear precisely what orders were sought, although, it appeared that the husband requested discovery and wished to pursue his application to restrain the wife from travelling overseas.  Costs were reserved. 

   28.During that event on 6 March 2014 the husband asserted, and the Court accepted, that for the purpose of the summary dismissal application hearing the husband relied on the material contained on page 4 and 5 in his application in a case, his affidavit and amended statement of financial circumstances all filed on 14 February 2014.

   29.The wife’s summary dismissal application was heard by this Court on 4 April 2014.

2. In terms of the determination in August 2014, I note that in my orders made 19 May 2014 I summarily dismissed the husband’s application to set aside the consent property orders.  I was aware that a number of interim and interlocutory orders had been made and that the question of costs was outstanding.  In relation to those matters, I made Order 2 which provides, and I quote:-

   In respect of any existing interim and/or interlocutory orders made in the proceedings, as are not rendered nugatory or implicitly discharged by Order 1 above, the Court orders and directs:-

   a.Any application to discharge, vacate or vary interim and/or interlocutory order/s shall be filed and served within twenty eight (28) days from todays date;

   b.the party seeking such orders shall, within that twenty eight (28) day period, file an application in a case setting out the detail and nature of the orders that he or she seeks to vary, discharge or vacate together with any affidavit material upon which that party relies;

   c.the respondent to such application shall file and serve any response to that application in case together with affidavits in reply, within a further period of twenty eight (28) days; and

   d.such application in a case shall be listed before Benjamin J at the next convenient date.

3. All other applications, except costs, were stood over.  A number of applications were made, including costs applications, and that came before me on 4 August 2014.  I set out the issues, the evidence and the background in my reasons at paragraphs 5 through to 13 of those reasons which are as follows:-

   5.        The issues to be determined for the former wife were:-

   a)leave to extend the time for her costs application;

   b)costs on the substantive proceedings and costs applications;

   c)whether costs ought to be determined on a party/party or indemnity basis; and

   d)security for costs.

   6.The former husband filed an application (out of time) on the 17 June 2014 and filed an amended application on the 25 July 2014. He relied upon the amended application seeking orders that:-

   a)this Court review its determination made on the 19 May 2014 and set aside or vacate those orders, and (presumably) that once that occurred the property orders made 5 January 2012 be set aside;

   b)funds held in trust totalling $100,000 (plus accumulated interest) be released to him (this was in essence a consent order, subject to the wife seeking to have either $20,000 or $30,000 retained as security for costs);

   c)that there be no costs order in favour of the former wife and that she pay his legal costs of the substantive application. The orders sought in the Applicant's amended application are difficult to discern. It states, in essence, that the parties bear their own costs, except for the costs of the Applicant's representation for a limited period of time when he was represented by John Munro. 

   d)security for his costs;

   e)an expedited hearing of the then property proceedings between the parties; and

   f)the Court directs that a financial statement of the respondent’s retirement superannuation plan be presented to the Court and there be valuations of a home unit property at [Suburb B] together with another valuation of a property in Hobart.

   The Evidence

   7.        The former wife relied upon:-

   a)her applications in a case filed 13 June 2014 and 8 July 2014;

   b)the reasons and orders of the substantive proceedings of 19 May 2014;

   c)interlocutory order made 7 February 2014;

   d)her response (filed 1 August 2014) to the former husband’s application in a case;

   e)her affidavits filed 13 June 2014, 8 July 2014 and 30 July 2014;

   f)her financial statement filed 1 August 2014; and

   g)the affidavit of Mr FitzGerald filed 8 July 2014.

   7.The former husband relied upon:-

   a)his applications in a case filed 17 June 2014 and amended application filed 25 July 2014;

   b)the reasons and orders of the substantive proceedings of 19 May 2014;

   c)interlocutory order made 7 February 2014; and

   d)his affidavits filed 17 June 2014 and 25 July 2014.

   Background

   8.The parties were both born in 1948.  They married in … 1971, separated in 2009 and their marriage was dissolved by an order made in April 2012, which became absolute in May 2012.

   9.There are no children of the marriage under the age of eighteen years. 

   10.On 25 March 2013 the former husband filed a substantive application in the Family Court seeking orders under Part VIII of the Family LawAct 1975 (“the Act”). The initial application was prepared by the former husband who was representing himself. It was difficult, if not impossible, to discern from the words contained in that application precisely what orders and/or relief the former husband sought. Fortunately, the former husband sought legal advice and on 25 July 2013 orders were sought to set aside consent property orders made 5 January 2012 and a determination of the property issues.

   11.The former wife opposed that application and sought summary dismissal of the former husband’s proceedings. The former wife contended that there was no reasonable likelihood of success and that the husband’s application was frivolous or vexatious.

   12.The wife’s application was successful and the husband’s proceedings were summarily dismissed on 19 May 2014.

1. That is the evidence that is before me and the material that is before me.

2. In terms of the stay application, the principles of law are well settled and it is a discretionary application which should be determined on its merits.  In Trahn v Long, (No.2) [2008] FamCAFC 194, the Full Court said that the matters to which the Court must consider are:-

   (a)firstly, the onus to establish a proper basis for the  stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;

   (b)a person who has obtained a judgment is entitled to the benefit of that judgment;

   (c)the person who has obtained a judgment is entitled to presume the judgment is correct;

   (d)the mere filing of an appeal is insufficient to ground a stay;

   (e)the bona fides of the applicant;

   (f)a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;

   (g)a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether  it will be appropriate to grant the stay;

3. The next point is some preliminary assessment of the strength of the proposed appeal, namely, whether the appellant has an arguable case.  The next point which the Court must consider is the desirability of limiting the frequency of change in a child’s living arrangements, which obviously doesn’t apply in this case.  The next consideration is the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time.  Finally, the best interests of the child the subject of the proceedings, which does not apply in this case. 

4. As the husband is unrepresented, I went through each of these with him in terms of his submissions so that I could understand the basis of his stay.  As I have indicated earlier, I have treated this as a stay in relation my order of 14 August because that is the one which deals with costs.  It seems that the appeal is proceeding satisfactorily and was likely to be heard in May, however given that the former wife is overseas at that time it is likely to be heard much later in 2015 through no fault of the husband. 

5. I asked the husband what the basis of his appeal was in relation to the costs order was.  His answer was somewhat confusing, but it would seem to be based upon his view that the appeal was so markedly strong that it would be almost unlikely to fail.  I asked him whether, in the context of the stay, he was asserting that there was a flight risk in terms of the former wife.  He seemed to prevaricate in terms of this and didn’t adopt that application.  However, I will treat it that this was part of his application, although I give it little weight given the evidence of the former wife contained in her affidavit of her significant financial, emotional, community and family ties within the state of Tasmania.  The former wife has gone through the process not only of obtaining the costs orders but actually having them assessed and determined by the Court.  On 13 November 2014 that was defined as being $21,118.43.  She has significant assets and it is therefore likely that if the husband’s appeal is successful that those funds would be easily refunded by her to him.  The former wife has the order and should be entitled to the benefit of the order and is entitled to presume that it is correct.  There is no significant or meaningful risk in the evidence before me that the appeal would be rendered nugatory if the stay is not granted, given the former wife’s financial circumstances. 

6. In this case, as I indicated to the husband, the mere filing of an appeal is insufficient to grant a stay.  I need to look at the bona fides of the applicant and make an assessment of the strength of the proposed appeal. 

7. There are seven grounds of appeal to which he refers to.  The first is that he raises issues of contribution which he said that I had not taken into account, issues about the release of money from the trust account of McCulloch and Associates and his view that each party should meet their own costs in the interest of natural justice.  He refers to his claim against the wife of $755,000 and an early hearing.  It is unclear what the first ground is, apart from a general complaint that I have made erroneous determinations. 

8. The second ground of appeal is a repeat of his assertion that each party should pay their own costs.  The third relates to moneys that were held pending the determination of the application, which he says was illegitimately established and then says that the former wife has made no direct financial contribution but was gifted 50 per cent equity share.  That seems to be a general complaint.  I am not able to determine what ground of appeal arises from that.

9. The fourth one is a complaint about the breakdown of the marriage and a personal attack upon the former wife which contains no basis of a ground of appeal.  The fifth, again, is his assertion that the marriage should not have been brought to an end.  The sixth was a personal attack upon the former wife’s present husband and a complaint about the circumstances in which the husband finds himself.  The seventh is an assertion by the husband that he has been denied “natural justice” by not being able to argue, he says, the property orders to which he had consented to in January 2012. 

10. The final ground is that the Full Court is requested to consider:-

    That the Perpetrator of the Sin and Age-Old Crime of Adultery has not undertaken … of heavy lifting that has been undertaken by the Lawfully Wedded Husband (the Applicant Husband) in 45 of the past 47 years in that the Parties were married. 

11. None of these seems to disclose or give rise to any substantial ground of appeal that I can determine.  As such, in consideration of the order made 14 August 2014, that there is a real issue as to the bona fides of the husband and a real issue as to the strength of the appeal.  It would appear to be very weak to say the least.  Given all of those circumstances I will dismiss the application for a stay made by the husband. 

12. The next application which I have to deal with is that seeking an injunction restraining the former wife from leaving the Commonwealth of Australia. There is an argument as to whether the Court has jurisdiction to make that order given that there are no proceedings pending under Part VIII or any other substantive part of the Act. However, this is an application for an injunction under s 114. It seems that an application for injunction under s 114 is a matrimonial cause of the kind referred to in paragraph (e) of the definition of that term.

13. For the purpose of this determination I have assumed that the substantive jurisdiction is there, although, as there is a final application rather than these interlocutory applications which I have to deal with, I will leave that as yet undetermined and allow that to be properly argued and ventilated, if need be, at some later time.

14. In terms of the interim application, I struggle to see on what evidentiary basis the husband can sustain the injunction application.  It could only be, having regard to s 114, an injunction in relation to the property of the party to the marriage.  Taking the husband’s case at its best, that is that he will or may make an application to lodge an appeal or seek leave to extend time to lodge an appeal in relation to my May 2014 order, it could only be in relation to the protection of the property which he hopes to secure in the event that his application is successful. 

15. As can be seen from the comments I have made earlier, and bearing in mind that the grounds of appeal seem to refer to the order of May 2014, it is not the subject at this stage of that, such are at best, poor, or, at worst, an abuse of process.  However, that will be a matter for the Full Court. 

16. The husband says this: first that the wife travels overseas in December regularly, and has done so for many years.  The effect of that, of course, is that she goes overseas and comes back.  I struggle to see how that assisted the husband. 

17. The second is that she has retired.  Well, it has been open to her on his case that she has been able to retire for the last 12 months. 

18. Thirdly, that he has a deep suspicion that she’s going to go overseas and not return.  I asked him to tell me what the evidence was upon which I could base an injunction of such a significant and onerous nature apart from his deep suspicion.  His submissions were, which I will treat as evidence for the purpose of that, is that the former wife is retired, she’s intending to travel overseas, and that he believes she may not come back. 

19. In the light of this the former wife has an interest in the home with her husband and she owns another home which was left to her by her mother.  She is going overseas for a trip to Europe on her retirement, which is hardly an unusual and an uncommon event given people’s retirements.

20. There is no evidence upon which the injunction sought by the husband could be entertained.  I asked the husband what had happened since the orders of March and April of this year in terms of the dismissal of his previous applications, and he said it was because the former wife had now retired and his fears had become greater.  There is nothing that has changed in any meaningful sense since those times.

21. That proceeding could only be seen as an abuse of process.  To bring the wife back here again on, at least, the third occasion to have that matter argued can only be seen as an abuse of process of this Court by the husband against the wife.

22. Counsel for the former wife said that had known this was the third application about the same matter he would have made an application under s 102Q of the Act, but there is, of course, no such application before me. However, it is getting to the stage, it seems to me, that an application of that nature may well be considered by the Court given that this is the third time in 12 months that this application has had to be argued by the former wife where the circumstances have been that she is able to retire and there has been no other change of circumstances other than the husband’s application to reopen property has been unsuccessful.

23. In those circumstances I will dismiss the application.

24. There is an application for costs before me in the circumstances of these proceedings. The amount sought by the wife is $1300 which her counsel says accords with scale. The husband opposes the costs order and asserts that no order ought to be made given the provisions of s 117(1) of the Act.

25. In this case I accept that the financial circumstances of the former wife are far superior to that of the husband.  The husband received a modest property settlement in the orders of 5 January 2012.  Neither party is in receipt of Legal Aid.  In terms of the conduct of the parties and in terms of wholly unsuccessful, being subsections (c) and (d), I will deal with those together. 

26. The applications were wholly unsuccessful.  I reiterate the comments I made in relation to the costs stay application which was, in my view given the circumstances of the parties and the evidence before me, doomed to fail.  In terms of the application for an injunction my finding was that it was an abuse of process and given all of those circumstances I am satisfied in that this case that a costs order ought to be made, and the amount sought by the counsel for the former wife is, it would seem to me, reasonable given the affidavit and the time that the matter was here today. 

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 December 2014.

Associate:     

Date:              11 December 201