Yanic and Yanic
[2011] FMCAfam 271
•31 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YANIC & YANIC | [2011] FMCAfam 271 |
| FAMILY LAW – Alteration of property interests – undefended hearing – assessment of contribution and s.75(2) considerations. |
| Family Law Act 1975, ss.75, 79, 106A |
| Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC93-143 MH & MZ (2005) FLC93-226 Money & Money (1994) FLC92-485 Norbis & Norbis (1986) 161 CLR 513 Pierce & Pierce (1998) FLC92-844 Williams & Williams [2007] FamCA 313 |
| Applicant: | MS YANIC |
| Respondent: | MR YANIC |
| File Number: | WOC 459 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 9 March 2011 |
| Date of Last Submission: | 11 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2011 |
REPRESENTATION
| Solicitors for the Applicant: | John Dawson & Associates |
| Respondent: | No appearance |
ORDERS
That the Husband and the Wife do all acts and things necessary and sign all such documents as may be required to effect a sale of the real property known as Property M (and being the whole of the land more particularly described in Certificate of Title Folio Identifier [omitted]) (“the real property”) and by way of consequential arrangements that shall be made for the purposes of effecting a sale:
(a)The real property shall be listed with an agent as agreed upon between the parties and in default of agreement with [omitted].
(b)The listing price for the real property shall be as agreed between the parties or in default of agreement as determined by a valuer appointed by the President of the Australian Institute of Valuers.
(c)The parties shall give such instructions to the Solicitor for the Wife for the preparation of an appropriate contract and other documents as are necessary for the sale of the real property by private treaty.
(d)In the event that the real property is not sold by private treaty within four (4) months from the date of these orders then the parties shall do all acts and things and execute all such documents as may be necessary to procure a sale of the property by public auction, and in particular:
(i)The auctioneer shall be [omitted];
(ii)The auctioneer may recommend a reserve price to be placed on the real property for the purpose of the auction and the parties shall accept such recommended reserve price;
(iii)The parties shall co-operate in every way with the auctioneer in relation to the auction of the real property including making a key available, allowing inspection of the real property at times requested by the auctioneer and ensuring the real property is in a neat and clean condition at the time of inspection by prospective purchasers;
(iv)The Husband and the Wife shall be responsible for one-half of the auction expenses.
That upon completion of the sale of the real property the proceeds of sale shall be paid in the following manner and priority:
(a)Payment of agents’ commission, auction expenses (if any) due on the sale.
(b)Payment of legal costs on the sale including solicitors acting for each of the parties in respect to the contract for sale.
(c)Payment to discharge the mortgage and any other encumberance affecting the real property.
(d)Payment of all Council, water and other outgoings in respect to the real property.
(e)Payment to the wife 80% of the then balance, and
(f)The remaining balance to the husband.
That pending sale of the real property the Husband shall be responsible for all mortgage repayments to National Australia Bank in respect to the real property and the Husband shall be responsible for Council rates, water rates and all other outgoings in regard to the real property.
That unless otherwise specified in these orders each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements and the chattels in the real property are deemed to be in the possession of the Husband.
That in the event of either party neglecting or refusing to sign all or any necessary instrument or document to give effect to these orders or any of them, either party is al liberty to apply pursuant to Section 106A of the Family Law Act 1975 to the Court to seek appointment of an officer of the Court or other person to whom the direction was given and to do all acts and things necessary to give validity and operation to the said instrument or document.
That each party be granted liberty to apply in respect to the implementation of these orders upon giving seven days notice.
That the Husband pay the Wife the sum of $6,600 within 60 days.
That the Husband has leave to relist this matter before Federal Magistrate Altobelli to apply to set aside these orders, provided that:
(a)This is done within 28 days; and
(b)The Husband files an Affidavit containing evidence which explains his failure to attend Court and otherwise why these orders should be set aside.
IT IS NOTED that publication of this judgment under the pseudonym Yanic & Yanic is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 459 of 2009
| MS YANIC |
Applicant
And
| MR YANIC |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
This is an application for property settlement, otherwise known as an application under s.79 of the Family Law Act. The matter proceeded on an undefended basis for reasons that become apparent from the reading of the procedural chronology which comprises Appendix A of these Reasons for Judgment.
The Applicant Wife is 53 years old, currently resides in the [L] region of NSW, and describes herself as undertaking home duties. The Respondent Husband is 57 years old. Based on documents that he filed in the Court, his occupation is described as [omitted], and he lives in what is the former matrimonial home at Property M, again in the [L] region of NSW. The commenced cohabitation in 1978, married in 1980, separated in 2007 and divorced in 2009. They thus cohabited for a period for approximately 29 years. The parties have one child who is 14 years old.
In the wife’s Application filed 24 December 2009 she seeks, in substance, an order for sale of the former matrimonial home at Property M, and that she be paid 80% of the net sale proceeds with the remainder being paid to he husband. The husband’s position is less clear. In his first Response file 22 June 2010, a document obviously prepared by himself, he simply sought that the wife’s Application be dismissed. His Response of the 15 February 2011 prepared by his then lawyers Johnson Horsley of Wollongong sought that he be paid 50% of the net sale proceeds of the property. Whilst both the husband’s Responses have been struck out, I nonetheless have regard to them in the course of exercising my jurisdiction under s.79. It is clear, for example, that even the orders proposed by the husband contemplates a sale of the home. I note that in the husband’s later Response he sought orders in relation to parenting, whereas the wife seeks no such orders. Given that I have struck out the husband’s Response, I will make no orders in relation to the Child.
The Evidence
The evidence before the Court included the wife’s Application and her Affidavits filed 24 December 2009, 9 June 2010 and 19 November 2010. She filed a Financial Statement of the 9 June 2010 and I have an Affidavit from the Valuer, Mr S, filed 19 November 2010.
The material to which I have regard on behalf of the husband include his two Responses, his Financial Statement of the 15 February 2011 and the Affidavit of 15 February 2011. There is also an earlier Affidavit of 22 June 2010 which contains no evidence of the husband, in any practical sense.
I make this observation about the evidence. The wife’s evidence is clearly detailed and is supported by corroborating documents, particularly in relation to the assertions she makes about the greater financial contributions on her part during the period of cohabitation. The husband’s evidence is largely unresponsive to the wife’s Affidavit but does set out evidence about the contribution that he made, in a non-financial way, towards the conservation and improvement of the property. The husband’s Financial Statement also included evidence that I accept about the values of items in his possession or control.
The Applicable Law
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole. My discretion in this regard should be exercised having regard to the facts of this case.
Initial Contribution
Another issue in this case is how, precisely, I should weigh and assess the initial contribution made by the wife in bringing property into the marriage. In this regard, I need to consider the decision of the Full Court in Pierce v Pierce (1998) FLC 92-844. A useful recent decision of the Full Court examines its earlier decision in Pierce v Pierce together with a later case. In Williams & Williams [2007] FamCA 313 the Full Court states as follows at paragraphs 26, 27, 28, 29 and 32:
26. We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
27. In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
28. The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
29. Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.
32. In MH & MZ (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
Accordingly, I must not only identify the contributions of each party, but also assess the weight to be attributed to these contributions having regard to many factors including what has occurred afterwards.
The Pool of Assets
I find the pool of assets to be as submitted by Mr Dawson, the solicitor for the Applicant wife, and thus in the following terms:-
SCHEDULE OF ASSETS
[Includes assets & liabilities from husband’s financial statement]
a) Real property at Property M (as per valuation)
375,000.00
b) Wife’s 1999 Hyundai Elantra manual sedan
3,100.00
c) The husband’s 1997 Toyota Corolla manual
600.00
d) Furniture and furnishings within the matrimonial home that would remain with the husband
15,000.00
e) Furnishings acquired by me since separation and furniture requested in my application to be provided to me by the husband (estimated value)
500.00
f) Wife’s Suncorp Metway, [T], Queensland account
5.00
g) Wife’s Bendigo Bank, [branch omitted] account
30.00
h) Husband’s life insurance policy
140,000.00
i) Husband’s bank accounts – National Australia Bank [branch omitted]
1865.00
536,100.00
DEBTS
1. Mortgage over Property M property to NAB
130,000
2. Wife’s Visa card with NAB
1,497
3. Husband’s credit cards
15,440
146,937
SUPERANNUATION
a) Wife”s superannuation entitlement with [omitted]
3,534
b) Husband’s superannuation entitlements [omitted]
11,737
15,271
NET ASSETS (not including superannuation) $389,163.00
Wife would receive:
(a) 80% net proceeds of sale 196,000
(b) Hyundai Elantra 3,100
(c) Furniture 500
(d) Her bank accounts 35
199,635
$199,635 as a percentage of the net assets - 51.29%
I make the following observations about this schedule. The valuation evidence contained in the Affidavit of Mr S filed 19 November 2010 clearly supports a finding as the value of the former matrimonial home. Notwithstanding this, as both the husband and the wife propose orders for sale, as well as orders that they receive a particular percentage of the sale proceeds, whether or not the property is actually worth $375,000 is not of prime significance, although it is still relevant to the overall exercise of my discretion.
I note that the value of the furniture and furnishings retained by the husband in the former matrimonial home is the value proposed by him. Clearly the orders propose that he retain this property. The value of the husband’s [omitted] Life Policy is, again, based on the figure that he attributes in his Financial Statement. I would have been assisted by evidence as to when this policy was taken out and the source of funds used to pay the premium, but there is no such evidence. It does seem like a high figure for the value of the [omitted] Life Policy but, ultimately, it is the figure proposed by the husband himself and it is of value to him.
The figure for the husband’s bank accounts is again based on his own evidence.
All other figures in the schedule are either based on an acceptance of the evidence of the wife, which, in any event, was in most cases supported by corroborating documents.
Contribution
When the parties first commenced cohabitation in 1978 the husband had no significant assets, whereas the wife had a shareholding in her father’s company, [E] Pty Limited. They were both working full time and were able to save for a deposit for their first home in [R], which was purchased in 1984 using what savings they had as a deposit, together with a loan from the National Australia Bank. This property was purchased for $63,000. The parties seem to have spent considerable effort, and funds, on effecting household extensions and renovations. From the evidence it seems that both the husband and the wife’s father made significant non-financial contributions in this regard. In 1986 the wife left her employment and received her superannuation payment of approximately $28,000 which she asserts, and which I accept in the circumstances of an undefended hearing, that she applied towards the renovations of the house at [R]. I can only infer that some part of this superannuation had been accumulated before the commencement of cohabitation given the size of the superannuation payout, and having regard to the fact that the parties had only been together for 8 years.
In October 1988 the wife received in excess of $200,000, being a repayment of the loan account and a shareholder’s advance in relation to the company [E] Pty Limited. This was invested, used to pay expenses and outstanding debt and also used to purchase a car. When the parties bought land at [T] in Queensland in 1989, it was the wife’s money that was used to fund the purchase. As the purchase price was $95,000, it is clear that there were quite significant funds left over and which remained invested. In 1990 and 1991 both of the wife’s parents died. Between September 1991 and June 1993 the wife received her inheritance totalling in excess of $280,000. The receipt of this inheritance, as well as the receipt of the wife’s investment from [E] Pty Limited, is clearly documented in the evidence. In 1992 the husband and the wife sold their property at [R] and moved to [omitted] Queensland. They lived off investment monies and the sale proceeds of the home for a while. In 1993 they engaged a builder to construct a home on the land at [T]. This was entirely funded from the investments and sale proceeds of the family home in [R]. The husband asserts, and the wife concedes, that he did assist the builder by doing various labouring jobs.
In 1994 the parties purchased a [omitted] business in which they both worked. As it turned out, this was not a successful business and in 1997, when the lease on the business premises expired, they closed the business with the bank owed about $195,000. Later that year they sold the home at [T], and repayed the bank. From a financial perspective, this was a financial set back for the parties, but there is absolutely no evidence before the Court that would suggest that one party should bear responsibility for this set back any more than the other.
In 1997 the parties moved back to NSW, initially to live in Sydney, and then in the [L]. In January 1998 they purchased the former matrimonial home at Property M for $190,000, borrowing $100,000 from the National Australia Bank and using the remaining sale proceeds and investment as their contribution towards the equity. Just pausing at this stage to reflect on and to seek to assess contribution towards the purchase price of the former matrimonial home I come to the inescapable conclusion that the wife’s financial contribution was significantly greater than that of the husband, having regard to the inheritance she received and the investment she had in [E] Pty Limited. This was her contribution of a direct financial nature. Of course the husband’s contribution cannot be ignored, but at the same time cannot possibly be assessed as being equal to that of the wife’s.
In 2005 the parties had a further financial set back when the husband was involved in an accident whilst driving [omitted]. He faced criminal charges arising out of this accident. The parties incurred considerable costs in defending these and then paying for the husband’s medical treatment arising out of the treatment.
The parties separated in 2007.
In the post-separation period both the husband and wife have clearly been involved in the care of their daughter who is now 14 years old. Apparently, however, the child is in the mother’s sole care and she does not appear by to spending much, if any, time with her father.
During the course of the marriage the wife appears to have been primarily responsible for home making and parenting, whilst the same time either part-time or full-time employment for the vast majority of the period of cohabitation. Likewise the husband was employed except in the closing years of the marriage when the injuries he suffered in the accident prevented him from doing so.
Section 75(2) considerations
The wife is currently in receipt of Centrelink benefits and is engaged in part-time employment. As indicated above, she has the full time care of their 14 year old daughter.
The husband’s evidence indicates that despite whatever injuries he might have suffered in the accident, he is working as a [omitted] and earning $1,360 per week. He has a surplus of income over expenditure of $440 per week. He is in occupation of the former matrimonial home and from his evidence is responsible for paying the mortgage or outgoings in relation to the property.
Assessment of contribution and section 75(2) considerations
There can be no doubt in my mind, having regard to the evidence before me, that the wife has made a significantly greater financial contribution, and that her s.75(2) considerations exceed those that might otherwise favour the husband. In a relatively small pool of assets the fact is that the direct financial contribution that she made from her [E] Pty Limited investment and inheritance is greater than the current value of their equity in the former matrimonial home. Of course, I must allow for the myriad contributions, both financial and non-financial, made by the husband. Nonetheless, I would assess her contribution at not less than 70%. Moreover, I would assess the differences in the parties’ respective s.75(2) considerations to be 5% in favour of the wife. Overall, the wife’s entitlement would be 75% of the pool.
Notwithstanding this, the wife seeks orders that gives her 80% of the net sale proceeds. Even if she were to receive 80% of the current value of the home, i.e. ignore the sale costs etc, then together with the other items held by her the amount that she seeks is no where near her actual entitlement. The wife’s application in this case is, therefore, exceedingly reasonable in the circumstances and one can only hope that the husband pays attention to this fact should he seek to set aside these orders or resist their enforcement. Indeed, if the husband receives 20% of the current net value of the former matrimonial home then, together with the other items he retains, at the values he attributes, he remains in a better financial position than the wife.
The wife seeks orders in relation to certain items of personal property which, it seems, remain in the former matrimonial home. The difficulty is that I have no evidence about these items whatsoever. I do not know, therefore, what is their value and I can only assume that it is part of the value attributed by the husband in his Financial Statement. Even though this is an undefended hearing, I am still required to apply the law, and make findings based on the evidence. In these circumstances, and perhaps regrettably, I am unable to make the orders sought by the wife as regards these items of personal property.
The wife proposes that the husband be responsible for mortgage payments and outgoings on the property ending at sale. As this reflects what is currently happening, it is an appropriate order to make.
In these circumstances, and taking into account the matter proceeded on an undefended basis, and the orders that I propose to make are the orders sought by the wife, I find that they are clearly just and equitable. Accordingly, I propose to make the orders sought by the applicant wife.
I intend to make a further order having regard to the circumstances of the undefended hearing. I appreciate that the husband would be entitled to make an application to vary or set aside these orders given that they were made in his absence. I will require, however, that such application be made before me if reasonably practicable and, moreover, that if such an application is made, it be supported by a detailed Affidavit containing evidence explaining the husband’s repeated failures to attend at Court, as well as evidence that would justify the exercise of discretion in his favour.
Costs
The applicant wife seeks costs in relation to the proceedings. Her submissions as to costs are reproduced at Appendix B to these reasons.
I find these reasons to be compelling. I find the husband’s financial circumstances to be better than those of the wife’s and there is nothing in his financial circumstances, particularly having regard to the outcome of these proceedings, that would contra-indicate a capacity to pay an order for costs.
I find that the husband’s conduct has significantly contributed to the delay and costs of these proceedings. Moreover the husband has repeatedly failed to comply with directions and orders of this Court. I find that the wife was entirely successful in her application, save in relation to the orders for personal property. Even this should not be allowed to stand in the way of making a costs order.
In terms of assessment of costs, I accept the assessment as submitted by Mr Dawson. I agree that the husband should pay the wife’s costs assessed at the sum of $6,600. However, the time to pay of 28 days is not sufficient. Such sum should be paid within 60 days.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Altobelli FM.
Date:
Appendix A
PROCEDURAL CHRONOLOGY
24 December 2009 Application by wife for property settlement filed, with return date of 29th March 2010.
24 February 2010 Respondent husband personally served with initiating application, affidavit and financial statement.
29th March 2010 First return date of wife’s application before Federal Magistrates Court at Wollongong.
No appearance of respondent husband. Affidavit of service by Mr J, affirmed 2nd March 2010 tendered to Court.
Court adjourns proceedings for an undefended hearing on 25th June 2010, with directions for applicant to file and serve additional evidence by 11th June 2010, and the respondent to be notified of the orders and directions.
31st March 2010 Letter sent by applicant’s solicitors to respondent. [Annexure A to affidavit of Ms D affirmed 22nd June 2010].
9th June 2010 Affidavit of wife affirmed 7th June 2010 filed together with financial statement.
10th June 2010 Copy of wife’s affidavit and financial statement filed 9th June 2010 sent by post to respondent with covering letter by way of service.
22nd June 2010 Respondent files response & affidavit.
25th June 2010 No appearance of Respondent before the Court. The Court adjourns the undefended hearing to 26th November 2010 for a further undefended hearing, unless the respondent files and serves an updating affidavit and financial statement by no later than 4.00 pm on 25th July 2010. The applicant was granted leave to file an updating valuation.
The Court noted;
(a) the orders sought by the wife included an order that the matrimonial home be sold, and
(b) to date the respondent had filed a response and an affidavit which did not set out the evidence in support of the orders sought.
28th June 2010 Applicant’s solicitors send letter to respondent advising him of orders and directions made by the Court on 25th June 2010.
25th July 2010 Respondent fails to comply with Court order of 25th June 2010.
19th November 2010 Applicant files
(a) Affidavit of Ms Yanic affirmed 15 November 2010
(b) Affidavit of Mr S (valuer) affirmed 9 November 2010.
22nd November 2010 Copies of affidavits filed 19th November 2010 sent to respondent with covering letter by way of service.
26th November 2010 Respondent appears before Court unrepresented at undefended hearing. Federal Magistrate Walker, engages the assistance of Registrar Campbell to explain what is expected of the respondent.
The applicant provided to the respondent a case outline.
The Court made orders;
1. That the matter be adjourned to 9th March 2011 at 9.30 am for an undefended hearing, unless the respondent complies with order 2.
2. The respondent husband is to file and serve, an amended response setting out the orders that he seeks, an affidavit in support of his response, and a financial statement, no later than 4.00 pm on 28th January 2011.
The Court noted;
A. The orders sought by the wife included an order that the matrimonial home be sold.
B. The respondent husband filed in June 2010 a response and an affidavit which did not set out evidence in support ;of the orders sought.
C. The Court has given the husband every opportunity to file and serve his documentation, and should he not comply with order 2, then no further adjournment of the undefended hearing will be given.
28th January 2011. Respondent fails to comply with orders of 26th November 2010.
15th February 2011. Respondent files, response (which includes children’s issues), financial statement and affidavit.
8th March 2011. Respondent’s solicitors advise they intend to withdraw from proceedings.
9th March 2011. Proceedings before Federal Magistrate Altobelli at Wollongong.
Leave granted for respondent’s solicitors to withdraw.
No appearance of respondent husband.
Court strikes out husband’s response.
Court vacates child dispute conference allocated for 6th April.
Court proceeds with undefended hearing.
Court directs that applicant provide to the Court, a current schedule of assets, a procedural chronology and submissions regarding costs within 7 days. Court reserves decision.
Appendix B
SUBMISSIONS AS TO COSTS.
The applicant wife seeks an order that the husband pay the wife’s costs of and incidental to her application for property settlement.
On 15th June 2009 the solicitors for the applicant sent a letter to the husband in respect to the proposed property settlement in an effort to negotiate a settlement and requested the husband to respond within 28 days failing which Court proceedings may be commenced. No response was received. On 19th October 2009 a further letter was sent to the husband seeking a response, and in that letter he was informed that should a response not be received within 14 days then the applicant would commence Court proceedings in the Federal Magistrates Court for property settlement, and in that application she would seek an order that the respondent pay her costs of an incidental to her application for property settlement. [A copy of that letter is annexed hereto]. No response was received.
On 24th December 2009 the applicant filed her application, and the respondent was served on 24th February 2010.
On the first return date of the application (29th March 2009) there was no appearance of the respondent, and the matter was listed for an undefended hearing on 25th June 2010.
On 25th June 2010 the respondent did not attend Court for the undefended hearing, having filed a response and a document purporting to be an affidavit in support. The Court made orders and gave directions and the respondent failed to comply with those orders and directions.
On 26th November 2010 the respondent attended the Court for the 2nd undefended hearing, and further orders and directions were made. The Court in those orders made an order that the wife’s costs of the undefended hearings listed for 25th June and 26th November 2010 be reserved.
On 26th November 2010 a copy of the applicant’s case outline document was handed by Mr. Dawson to the respondent. That document contained the final orders sought by the applicant, which included an order that the husband pay the wife’s costs of an incidental to these proceedings for property settlement. A copy of that case outline was handed to the Court on 26th November 2010. On 9th March a further copy of that case outline was handed to the Court.
Notwithstanding that the respondent was given some two months to file documentation, the respondent failed to comply with the Court’s orders and directions of 26th November, in that he did not file and serve documents by 28th January 2011.
On 9th March 2011 (the third listing for an undefended hearing), the solicitors for the respondent withdrew, and there was no appearance by the respondent. The response was struck out.
10.Having regard to Section 117 I submit the following matters are relevant to a costs order being made in this matter – as set out in Section 117(2A)
(a)the financial circumstances of the parties - the respondent husband, according to his financial statement earns $1360 per week. The applicant wife receives government benefits amounting to approximately $250 per week.
(b)Neither party is in receipt of assistance by way of legal aid.
(c)The conduct of the parties – in respect to the respondent, his conduct in these proceedings is set out in paragraphs 2 to 9 above.
(d)Whether proceedings were necessitated by the failure of a party to comply with previous Court orders – The proceedings were not necessitated by the respondent’s failure to comply with previous orders. The proceedings have been extended by the respondent’s failure to comply with directions and orders of the Court.
(e)Not applicable
(f)Not applicable
(g)Such other matters as the Court considers relevant – The proceedings have been extended by the respondent’s failure to comply with directions and orders of the Court, and also by the late filing of documents, and the filing of documents in June 2010, which did not adequately set out the orders he sought, nor did he file an affidavit adequately supporting his application. As a result the applicant wife has incurred unnecessary expense due to the inaction and actions of the respondent in these proceedings
The applicant seeks an order – based upon the Court’s Schedule 1 - that the husband pay the wife’s costs of $6,600.00 within 28 days. That amount is made up as follows:
29 March 2010 Attend FMC Wollongong for mention
(75 minutes) – short mention 240.00
11 June 2010 Attend FMC Wollongong for undefendedhearing - 9.30 to 11.50 am 480.00
26 November 2010 Attend FMC Wollongong for undefended
hearing – 9.30 am to 1.20 pm 880.00
9 March 2011. Attend FMC Wollongong for undefended
hearing – (including Preparation of updatedschedule of assets, procedural chronology
480.00
June & Nov 2010 Preparation for undefended hearing (1 day)
Including Case outline 3,750.00
5,830.00
Disbursements:
Southern valuers – valuation of Property M property 550.00
Southern valuers – updating valuation 220.00770.00
6,600.00
0
2
1