Woodley & Time and Anor

Case [2008] FamCA 162

FAMILY COURT OF AUSTRALIA

WOODLEY & TIME AND ANOR [2008] FamCA 162

FAMILY LAW – COSTS – Between party to a marriage and a third party who had a genuine interest in the property proceedings and where such proceeding between the parties to the marriage may have defeated a Mareva injunction and could have prevented a recovery of a civil judgment against one of the parties to the marriage – Consideration of rights of third parties under s117(2A) Family law Act.

Brown v Brown (1998) FLC 92-822
JJT & Ors; ex parte Victoria Legal Aid (1998) FLC 92-812
Jensen and Jensen (1982) FLC 91-263
Kelly and Kelly (No 2) (1981) FLC 91-108
Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192-3, 205
Mallet v Mallet (1984) FLC 91-507
Mareva Compania Naviera SA v International Bulkcarriers SA (‘the Mareva”) (1980) 1 All ER 213
McDonald and Mc Donald (1994) FLC 92-508
Marinko and Marinko (1983) FLC 91-307
Penfold v Penfold (1980) FLC 90-800
PBF (as Child Representative for AF (Legal Aid Commission of Tasmania)) v TRF and LKN (2005) 33 Fam LR 123
APPLICANT: MRS WOODLEY
1st RESPONDENT: MRS TIME
2nd RESPONDENT: MR TIME
FILE NUMBER: LNC 134 of 2007
DATE DELIVERED: 14 March 2008
PLACE DELIVERED: Hobart
PLACE HEARD: Launceston
JUDGMENT OF: Benjamin J
HEARING DATE: 20 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gibson
SOLICITOR FOR THE APPLICANT: Zeeman Kable & Page
COUNSEL FOR THE 1ST RESPONDENT: Mr Tucker
SOLICITOR FOR THE 1ST RESPONDENT: Grant Tucker
FOR THE 2ND RESPONDENT: No appearance

Orders

  1. That the application filed 28 February 2007 and the response filed the
    23 April 2007 are dismissed.

    IT IS NOTED

  2. The property proceedings between the first respondent (“the wife”) and the second respondent (“the husband”) have not been determined on their merits.

    IT IS FURTHER ORDERED

  3. That the wife pay to the applicant Mrs Woodley the costs of these proceedings including the costs of the costs application. Such costs as agreed between the parties or as otherwise determined under the Family Law Rules.

  4. All outstanding applications be and are dismissed.

  5. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

    IT IS CERTIFIED

  6. 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 under the pseudonym Woodley & Time and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: LNC 134 of 2007

Mrs Woodley

Applicant

And

Mrs Time

1st Respondent

And

Mr Time

2nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION

  1. These are proceedings between the first respondent, (“the wife”), the second respondent (“the husband”) and the applicant (“Mrs Woodley”).  The application heard by me on 20 February 2008 was for orders that the wife pay Mrs Woodley’s…

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AGLC
Woodley & Time and Anor [2008] FamCA 162
Case
[2008] FamCA 162
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Benjamin J considered an application and a response concerning costs in proceedings between a husband and wife, and a third party, Mrs Woodley. Mrs Woodley, the applicant, had a genuine interest in the property proceedings as they could have defeated a Mareva injunction and prevented the recovery of a civil judgment against the husband, who had murdered her husband.

The court was required to determine the rights of third parties under section 117(2A) of the *Family Law Act 1975* (Cth) in relation to costs. Specifically, the court had to consider whether Mrs Woodley, as a third party with a substantial interest in the outcome of the property proceedings, should be awarded costs, given that the Family Court proceedings, if successful, would have rendered her civil judgment against the husband worthless.

Benjamin J dismissed both the application and the response. The court's reasoning, though not fully detailed in the provided text, focused on the application of section 117(2A) of the *Family Law Act 1975*, which allows for orders regarding costs in favour of a third party who has a genuine interest in property proceedings. The court's decision to dismiss the applications indicates that it found no basis for making orders for costs in favour of either party in this instance, despite Mrs Woodley's significant interest in the outcome of the Family Court proceedings.

Orders

Orders of the court

1.

That the application filed 28 February 2007 and the response filed the

23 April 2007 are dismissed.

Background

Background to the litigation

In these reasons any statement of fact is to be taken as a finding of fact unless the contrary intention is shown.BACKGROUND The background to these proceedings is both complex and sad. The primary parties to these proceedings were the husband and the wife who are aged 44 and 40 respectively. They married in September 1994, they had previously commenced in October 1992. The wife asserts the she and the husband separated on 18 November 2006. There is one child of their marriage, a son who is aged 7. The husband murdered the applicant’s husband (“the deceased”) some years prior to the parties’ separation. As a consequence of his criminal conviction for that murder the husband is currently serving a term of imprisonment. The deceased and Mrs Woodley were married in 1988 and have two children. After the death of her husband, Mrs Woodley commenced proceedings in the Supreme Court of Tasmania against the husband seeking damages arising out of her husband Mr Woodley’s murder by the second respondent (“the civil proceedings”). The husband had sought bail in the criminal proceedings in respect of the then murder charge pending against him. In support of that bail application the husband relied upon an affidavit asserting that he had assets including a half interest in a property at A and an equity of $40,000.00 in a property at B and that his family trust owned shares in a company which carried on a business. In April 2002 an order was made in the civil proceedings restraining the husband from dealing with or disposing of any of his assets (the Mareva Injunction[1]). In May 2002, the husband filed an affidavit in the civil proceedings advising that the property at B had been sold and the proceeds of sale had repaid a Commonwealth Bank mortgage and a private loan to his parents. He informed the Supreme Court that he no longer owned any business assets. At that time the evidence was that the husband only had one significant asset, namely the property at A.[1] Mareva Compania Naviera SA v International Bulkcarriers SA (“the Mareva”) (1980) 1 All ER 213. In 2006 an offer to settle the civil proceedings was made on behalf of the husband. In that offer the wife had discussed refinancing the jointly owned property to fund the settlement of the civil proceedings. Those civil proceedings were to be the subject of mediation but that did not occur at that time. Mrs Woodley had taken steps to obtain the Mareva injunction in the civil proceeding to preserve the assets of the husband to enable her children and herself to ensure that there were funds in place to satisfy any judgment against the husband. Part of the pool of assets of the husband was lost between December 2001 and May 2002. On 28 February 2007 proceedings in the Family Court were commenced by the wife (“the Family Court proceedings”). She sought orders that the property at A be transferred to her. The consequence of this order, if made, would have been to render any civil judgment of Mrs Woodley against the husband valueless. In fairness to the wife, she disclosed the Family Court proceedings to Mrs Woodley. The proceedings in the Family Court were listed for mention on the 28 February 2007 and were then adjourned for a case assessment conference on the 12 April 2007.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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