FAMILY COURT OF AUSTRALIA
| WINTER & WINTER | [2011] FamCA 702 |
| FAMILY LAW – COSTS – 2001 s 79 proceedings – Wife seeking cost against non-party – Costs application dismissed – 2008 s 79A proceedings – Wife seeking costs against second respondent – Costs application dismissed |
| Evidence Act 1995 (Cth) s 140(2) Family Law Act s 117, s 117AB, s 79A, s 79 Family Law Rules 2004 r 19.08, r 19.18 |
| Barker & Barker [2007] FamCA 13 Penfold and Penfold (1981) 44 CLR 311 Re Z (No 4) (unreported) NA54 of 1995, 6 March 1997 Sharma & Sharma (No 2) [2007] FamCA 425 S v S; The Child Representative; Victoria Legal Aid; The Chief Commissioner of Victorian Police (1997) FLC 92-762 |
| APPLICANT: | Ms Winter |
| SECOND RESPONDENT: | A Winter |
| FILE NUMBER: | BRC | 3781 | of | 2008 |
| DATE DELIVERED: | 27 June 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O’Reilly J |
| HEARING DATE: | 24 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Baston (Direct brief) |
| SOLICITOR FOR THE SECOND RESPONDENT: | Mr Eleftheriou McInnes Wilson Lawyers |
Orders
The wife’s applications for costs against the second respondent in relation to these proceedings and proceedings BRF 8474 of 2001 are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Winter & Winter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3781 of 2008
| Ms Winter |
Applicant
And
| A Winter |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Applications
These proceedings were commenced by initiating application by the wife filed on 28 April 2008 and concluded by my judgment 15 October 2010 after a trial which proceeded over 18 days between 12 April and 24 June 2010.
The wife now has an application in a case against the second respondent A Winter filed 12 November 2010 that he pay her costs of and incidental to these proceedings, which were s 79A proceedings, including her costs of and incidental to her costs application, either fixed in a specific amount or assessed on the indemnity basis: rr 19.08 and 19.18 Family Law Rules 2004.
The wife has an application also that A Winter pay her costs of and incidental to proceedings BRF 8474 of 2001 on the indemnity basis. Those proceedings…
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Details
- AGLC
- Winter and Winter [2011] FamCA 702
- Case
- [2011] FamCA 702
- Decision Date
CaseChat Overview and Summary
In the matter of *Winter and Winter*, O’Reilly J considered an application by the wife for costs against the second respondent. The dispute concerned the wife's assertion that she had relied on the evidence of A Winter in settling earlier proceedings, and that this reliance was misplaced due to alleged deception by the husband.
The central legal issue before the court was whether the wife had established that her decision to settle the earlier proceedings was based on reliance on A Winter's affidavit, as opposed to the evidence provided by her late husband. This determination was crucial for assessing the wife's claim for costs against the second respondent.
O’Reilly J found that the wife had not provided evidence in her affidavits that she relied on A Winter's affidavit in settling the earlier proceedings. Instead, the court noted that the wife had consistently deposed to relying on her late husband's statements and affidavits in those proceedings. The court referred to its previous reasons for judgment of 15 October 2010, which detailed the wife's case as being concerned with deception by the husband, not by A Winter. The court concluded that the wife had the opportunity to proceed to trial in the earlier proceedings but chose to settle, and there was no evidence that she relied on A Winter's affidavit in making that decision.
The wife's applications for costs against the second respondent were dismissed.
The central legal issue before the court was whether the wife had established that her decision to settle the earlier proceedings was based on reliance on A Winter's affidavit, as opposed to the evidence provided by her late husband. This determination was crucial for assessing the wife's claim for costs against the second respondent.
O’Reilly J found that the wife had not provided evidence in her affidavits that she relied on A Winter's affidavit in settling the earlier proceedings. Instead, the court noted that the wife had consistently deposed to relying on her late husband's statements and affidavits in those proceedings. The court referred to its previous reasons for judgment of 15 October 2010, which detailed the wife's case as being concerned with deception by the husband, not by A Winter. The court concluded that the wife had the opportunity to proceed to trial in the earlier proceedings but chose to settle, and there was no evidence that she relied on A Winter's affidavit in making that decision.
The wife's applications for costs against the second respondent were dismissed.
Orders
Orders of the court
1.
The wife’s applications for costs against the second respondent in relation to these proceedings and proceedings BRF 8474 of 2001 are dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
I do not accept the proposition based on the “alleged debt, drawn up falsely” analogy. A litigant always has the opportunity, as the wife did in the s 79 2001 proceedings, to proceed to trial and to cross examination of the husband and A Winter in those proceedings. She chose not to, and instead, to settle on 7 March 2005. The argument in my view fails because, as I have said, the wife could have continued to trial and there is not any evidence that she relied on A Winter’s affidavit in relation to her decision to settle the 2001 proceedings. Thus, the difficulty for Mr Baston’s submissions in relation to his treatment of A Winter’s evidence in the 2001 proceedings in this way, that is, by way of his “analogy” argument, is that nowhere in her affidavits in the 2008 proceedings has the wife sworn that she relied on A Winter’s affidavit in the 2001 proceedings in relation to her decision to settle them. On the contrary, as I found in the reasons for judgment 15 October 2010, in several places the wife deposed to her reliance on the late husband’s statements and affidavits in the 2001 proceedings. I would refer in particular to the reasons for judgment 15 October 2010, pars [33] [34] [35] [36] and [37] in which she made clear to me in her evidence that in the 2001 proceedings specifically she relied on the late husband’s sworn evidence in the 2001 proceedings. The paragraphs are important, and I will set them out together with the relevant subheading from the judgment showing that her case was concerned only with deception of her by the husband, no-one else:Was there fraud, suppression of evidence, failure to disclose relevant information and/or the giving of false evidence by the husband in the earlier proceedings?Wife’s case as to husband’s evidence in the earlier proceedings33. The wife's case is that at the time the consent property order was made on 7 March 2005 she relied on the following evidence by the husband as to his property, assets and financial circumstances as contained in the husband's affidavit filed on 23 February 2004:15.The Respondent has claimed throughout the property proceedings that I possess and/or control a large amount of wealth in certain Companies. This is despite my providing evidence to the contrary. I have been employed as a company director of [A Capital Limited] (“[A]”) since August 2001. I receive an income of $500.00 gross per week if funds are available in the Company. My employer pays for my rent of $675.00 and motor vehicle loan expenses of $250.00 per week as part of the employment contract as I use my home as my fulltime office and I need the vehicle for work related travel. These are my only sources of income and beneficial payments.16.Further, I have had to obtain loans in excess of $150,000.00 to assist in payment of debts, including legal fees and living expenses. I continue to borrow money when necessary to pay for my expenses. I currently owe in excess of $30,000.00 in legal fees. Annexed and marked with the letter "H" is a copy of the Affidavit of the Director of [A] and my tax returns for the years 1997 to 2002 together with a letter of my solicitors dated 12 December 2003 explaining in detail that the alleged wealth does not exist and the respondent's perceptions that I have access to large quantities of money either directly or by way of financial resources is without foundation.17.I do not have an interest in any other company by way of shares, beneficial interest or otherwise.34. The husband exhibited to that affidavit a letter from his solicitors to the wife's solicitors dated 12 December 2003, annexure H, in which it was asserted that the husband had not "secreted away wealth", “particularly in the United States”, and that "the only assets available are those being the proceeds of the sale of 16 [D Street] and the household furniture and effects …".35. It is self evident by these materials that the wife, prior to the making of the consent property order, had alleged that the husband had assets which he had failed to disclose to her.36.The wife, in her affidavit filed on 28 April 2008, in support of the current proceedings, said:6.In settling all claims that I had against [the husband] in the original proceedings, I relied on his evidence in his affidavit sworn on 20 February 2004 and his Financial Statement filed in the original proceedings. Specifically I relied upon [the husband’s] sworn evidence that he had no assets and earned a weekly wage of $500 per week.37. The wife's case is that throughout the earlier property proceedings disclosure by the husband was “always difficult” and that she had “held suspicion” that information was being withheld. In her affidavit filed on 16 May 2008 (incorporated by reference in her trial affidavit filed on 16 April 2010, but not referred to other than in this respect) she provides detail of the effort made by her solicitors to obtain full disclosure by the husband of his assets: see pars 3-34 and 40 of that affidavit, and par 41, in which she deposes as to her reliance on the information provided by the husband in entering into the consent property order. (underscoring and emphasis added except in subheading)
Decision
Reasons for decision
Thus, the difficulty for Mr Baston’s submissions in relation to his treatment of A Winter’s evidence in the 2001 proceedings in this way, that is, by way of his “analogy” argument, is that nowhere in her affidavits in the 2008 proceedings has the wife sworn that she relied on A Winter’s affidavit in the 2001 proceedings in relation to her decision to settle them. On the contrary, as I found in the reasons for judgment 15 October 2010, in several places the wife deposed to her reliance on the late husband’s statements and affidavits in the 2001 proceedings. I would refer in particular to the reasons for judgment 15 October 2010, pars [33] [34] [35] [36] and [37] in which she made clear to me in her evidence that in the 2001 proceedings specifically she relied on the late husband’s sworn evidence in the 2001 proceedings. The paragraphs are important, and I will set them out together with the relevant subheading from the judgment showing that her case was concerned only with deception of her by the husband, no-one else:Was there fraud, suppression of evidence, failure to disclose relevant information and/or the giving of false evidence by the husband in the earlier proceedings?Wife’s case as to husband’s evidence in the earlier proceedings33. The wife's case is that at the time the consent property order was made on 7 March 2005 she relied on the following evidence by the husband as to his property, assets and financial circumstances as contained in the husband's affidavit filed on 23 February 2004:15.The Respondent has claimed throughout the property proceedings that I possess and/or control a large amount of wealth in certain Companies. This is despite my providing evidence to the contrary. I have been employed as a company director of [A Capital Limited] (“[A]”) since August 2001. I receive an income of $500.00 gross per week if funds are available in the Company. My employer pays for my rent of $675.00 and motor vehicle loan expenses of $250.00 per week as part of the employment contract as I use my home as my fulltime office and I need the vehicle for work related travel. These are my only sources of income and beneficial payments.16.Further, I have had to obtain loans in excess of $150,000.00 to assist in payment of debts, including legal fees and living expenses. I continue to borrow money when necessary to pay for my expenses. I currently owe in excess of $30,000.00 in legal fees. Annexed and marked with the letter "H" is a copy of the Affidavit of the Director of [A] and my tax returns for the years 1997 to 2002 together with a letter of my solicitors dated 12 December 2003 explaining in detail that the alleged wealth does not exist and the respondent's perceptions that I have access to large quantities of money either directly or by way of financial resources is without foundation.17.I do not have an interest in any other company by way of shares, beneficial interest or otherwise.34. The husband exhibited to that affidavit a letter from his solicitors to the wife's solicitors dated 12 December 2003, annexure H, in which it was asserted that the husband had not "secreted away wealth", “particularly in the United States”, and that "the only assets available are those being the proceeds of the sale of 16 [D Street] and the household furniture and effects …".35. It is self evident by these materials that the wife, prior to the making of the consent property order, had alleged that the husband had assets which he had failed to disclose to her.36.The wife, in her affidavit filed on 28 April 2008, in support of the current proceedings, said:6.In settling all claims that I had against [the husband] in the original proceedings, I relied on his evidence in his affidavit sworn on 20 February 2004 and his Financial Statement filed in the original proceedings. Specifically I relied upon [the husband’s] sworn evidence that he had no assets and earned a weekly wage of $500 per week.37. The wife's case is that throughout the earlier property proceedings disclosure by the husband was “always difficult” and that she had “held suspicion” that information was being withheld. In her affidavit filed on 16 May 2008 (incorporated by reference in her trial affidavit filed on 16 April 2010, but not referred to other than in this respect) she provides detail of the effort made by her solicitors to obtain full disclosure by the husband of his assets: see pars 3-34 and 40 of that affidavit, and par 41, in which she deposes as to her reliance on the information provided by the husband in entering into the consent property order. (underscoring and emphasis added except in subheading)
Ratio Decidendi
Legal Principle Established
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