Xu and Phak
[2015] FamCA 10
•13 January 2015
FAMILY COURT OF AUSTRALIA
| XU & PHAK | [2015] FamCA 10 |
FAMILY LAW – PRACTICE AND PROCEDURE – Wife sought dismissal of the husband’s application in a case on the basis of concurrent proceedings pursuant to Part 4 of the Family Violence Protection Act 2008 (Vic).
| APPLICANT: | Mr Xu |
| RESPONDENT: | Ms Phak |
| INTERVENOR: |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 9662 | of | 2012 |
| DATE DELIVERED: | 13 January 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 13 January 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Trim |
| SOLICITOR FOR THE APPLICANT: | Oakfair Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bartfeld |
| SOLICITOR FOR THE RESPONDENT: |
Orders
The application to set aside the financial agreement pursuant to s 90K of the Family Law Act1975 (Cth), be listed for hearing for three days before me commencing 10.00am Monday 24, Tuesday 25 and Wednesday 26 August 2015 at Melbourne.
IT IS DIRECTED
The applicant wife file and serve all affidavit material upon which she seeks to rely on or before Monday 1 June 2015.
The respondent husband file and serve all material upon which he seeks to rely on or before Monday 29 June 2015.
The wife file and serve any material in reply to the husband’s material on or before Monday 20 July 2015.
The wife pay the hearing fee or seek remission of such hearing fee on or before
1 June 2015.Each of the parties file in electronic and paper form a case outline two (2) business days prior to the commencement of the hearing setting out:-
(a)the orders each of the parties are seeking;
(b)the material upon which the parties rely;
(c)a chronology; and
(d)an outline of case.
Each party have available on the first day of the hearing a bundle of all material the parties intend to seek to tender, an original and three copies, paginated and indexed.
IT IS NOTED
Any application for issue of subpoena should be listed to the docket Registrar unless counsel for the parties agree to the issue of such subpoena, and if so a consent order can be forwarded to my chambers for consideration of the making of such order.
IT IS FURTHER ORDERED
Leave be given to have the matter relisted in the event there needs to be further directions on the giving of seven (7) days notice to the court and to the other party.
The application in a case filed by the husband on 1 December 2014 is dimissed.
The orders sought by the wife in her primary application and in her response to the husband’s application in a case are withdrawn and dismissed.
The husband pay the wife’s costs of the application in a case filed 1 December 2014 on a party/party basis.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior Counsel and Counsel to attend.
.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Xu & Phak 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 MELBOURNE |
FILE NUMBER: MLC 9662 of 2012
| Mr Xu |
Applicant
And
| Ms Phak |
Respondent
REASONS FOR JUDGMENT
Mr Xu (“the husband”) and Ms Phak (“the wife”) are engaged in proceedings in the Family Court in relation to a financial agreement. That proceeding was commenced by application filed on behalf of the wife on 7 March 2014.
By application in a case filed 1 December 2014, the husband sought orders that the wife vacate the former matrimonial home at B Street, Suburb T, Victoria, and that the husband have sole use and occupation of that property. The husband filed an affidavit in support of that application in a case and relied on other evidence to which I was referred during the course of exchange between counsel and bench.
The wife sought no orders today other than a dismissal of the husband’s application in a case. She sought that on the basis of proceedings that are in existence pursuant to Part 4 of the Family Violence Protection Act 2008 (Vic) (‘the Family Violence Protection Act’). These are reasons arising out of that, as it were, threshold question, because the wife, through her senior counsel, asserted that the husband is prohibited from pursuing the relief that he seeks in this Court in his application in a case by reason of section 114AB(2) of the Family Law Act 1975 (Cth) (‘the Act’).
The husband is aged 53. The wife is aged 48. The parties married in about 1992. There are two children of the marriage: C, who lives with the wife, and D, who sadly passed away in February 2013. The parties apparently separated in about 2010 and entered into a financial agreement in February 2012. Their marriage was dissolved in January 2013.
There was an incident – the parties had been living in the property at B Street for some time, and it is not in issue that that property is legally owned by the husband. There is apparently an issue as to whether the wife has some form of equitable interest in that property, but it is not in issue that the wife has lived there for some time.
On 26 August 2014, the husband and wife were engaged in some altercation at the home which brought about two sets of proceedings after the police attended that night. The first were proceedings by Victoria Police which led to an interim intervention order being made on 29 August 2014. I have that order in front of me. That order provides, relevantly, that the husband is restrained from going to, or remaining within, 200 metres of B Street or any other place where the wife lives, works or attends school.
The husband made an application to the Magistrates Court of Victoria pursuant to section 42 of the Family Violence Protection Act on 10 September 2014. That application is annexed to the wife’s amended affidavit filed 22 December 2014 and is exhibit QP3. In that application, the husband sets out his version of the events of 26 August 2014 and other matters relating to the parties. The husband also says that he wishes to return to the B Street home. One of a number of orders that he seeks is an order restraining the wife from going to, or remaining within, 200 metres of that property.
It is not in issue that that proceeding and the proceeding commenced by the police for the protection of the wife were part-heard in October last year and are now returnable before the Magistrates Court in February 2015. It is not in issue that the Family Violence Protection Act is a prescribed law of a state or territory within the meaning of section 114AB(1) of the Act, as provided for under regulation 19(b) of the Family Law Regulations 1984 (Cth).
It is not in issue that the husband has instituted a proceeding or taken other action under that State law which would, if successful, entitle him to the relief that he seeks in relation to his application in a case filed 1 December 2014. That application in a case seeks that the wife vacate B Street. In his proceeding, which he continues to prosecute in the State Court, the husband seeks an order excluding the wife from B Street and from approaching within 200 metres of that property. The effect of that order would be that the husband would have, as against the wife, sole use and occupation, which is what he seeks in order 2 of his application in a case.
Section114AB(2) provides:
Where a person has instituted a proceeding or taken any other action under a prescribed law of a state or territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of the matter, unless:
(a) where the person instituted a proceeding
(i)the proceedings has lapsed, been discontinued or been dismissed; or
(ii)the orders (if any) made as a result of the institution of the proceeding would have been set aside or are no longer inforce; and
(b)where the person took other action -- neither that person or any other person is required, at the time that the person instituted proceedings under section 68B or 114, to do any act, or to refrain from doing an act.
Those proceedings in the Magistrates Court have not lapsed, have not been discontinued, nor have they been dismissed. The husband complains that the property is his both in equity and at law. Section 82 of the Family Violence Protection Act provides at subsection (3) that the power of that court to make the order which the husband seeks in that court applies regardless of any legal or equitable rights that the parties have in the residence. Similarly, there is an obligation upon the magistrate in determining that matter to consider whether to include a condition, an exclusion condition, excluding the respondent who, in the husband’s case, would be the wife, from the protected person’s home.
The only other way that it could perhaps be argued that section 114AB(2) could have applied is in relation to the response which the husband filed in April 2014. In this response, the husband sought an order for the wife to vacate B Street. However, the husband has not pursued that earlier interim application. The application that he pursues before this Court is that contained in his application in a case filed December 2014. That being the case, I am satisfied that the prohibition provided by section 114AB(2) of the Act applies, and accordingly, the husband’s application for orders 1 and 2 set out in his application in a case filed 1 December 2014 are incompetent having regard to that section. As such, that application in a case is dismissed.
There is an application before me for costs in respect of the husband’s ultimately unsuccessful application in a case. I do not intend to reserve those costs. I have had the benefit of reading the financial statements of both parties. Both the husband and wife have significant assets, and draw significant income in various ways from rented properties. Neither party is in receipt of legal aid.
The power to make costs orders is set out in s 117 of the Act which provides:-
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 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), (4A) 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 subsection (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 terms of any such offer; and
(g)such other matters as the court considers relevant.
In Penfold v Penfold (1980) FLC 90-800 the majority of the High Court expressed the general rule that s 117(1) is not paramount to s 117(2) of the Act. A court must make a finding that there are circumstances justifying the making of a costs order before proceeding to make the orders.
The next step is to consider the matters set out in s 117(2A). There is nowhere in s 117(2A) that says one factor is providing any hierarchy in relation to the factors. One factor may be enough. As such the Court has a wide discretion.
It is of value to consider the difference between the various types of unquantified costs orders available under the Act. There are many variations of types of costs orders, but they generally fall into three types:-[1]
(a)Party and party costs – these are calculated having regard to the schedule of costs under the Family Law Rules 2004 (Cth);
(b)Lawyer and client costs – these are essentially indemnity costs, with the onus upon the costs applicant to satisfy the taxing authority that such costs are on balance fair and reasonable; and
(c)Indemnity costs[2] - these are essentially lawyer and client costs, with the onus upon the costs respondent to satisfy the taxing authority that such costs are on balance not fair and reasonable, that is the reversal of the onus of proof.
[1] Rule 19.18(1)(b).
[2] See also Rule 19.08(3).
Here, the wife was wholly successful in terms of her application, which was clearly available to her under section 114AB of the Act, although it was only in the course of today that this argument was raised squarely with counsel for the husband. I reiterate that which I said in relation to the earlier reasons at paragraph 12. The wife had filed a response on 19 December 2014 seeking similar relief to that sought by the husband. It is clear that the wife did not pursue this relief today and that when this aspect of the matter is determined, the wife will ask the court to withdraw and dismiss that. It seems to me that should be a matter to which I should have regard to in the broad exercise of the costs discretion.
I am inclined to make an order for costs in respect of this application, but given these factors, and not withstanding that it was a power failure in terms of the argument, I intend to make those costs on a party-party basis, although I will certify for senior counsel.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 January 2015.
Associate:
Date: 16 January 2015