Family Law Case Note

Prepare a case note on Zagoreos v Zagoreos [2018] FamCA 4. The case note needs to have: - Facts of the case (including the Ratio Decidendi of the case) 150-200 words - Issue/s from the case - Decision/ judgement held by the court - Reasoning for the judgement - Future Lessons that people can learn from it Again Please note that only important information needs to go into this case note. The only resources you need for the tasks i will download. however, if you require more resources, then please use it (but only use primary sources) AGLC referencing only Case Study FamCA Coversheet and Orders Page 1 FAMILY COURT OF AUSTRALIA ZAGOREOS & ZAGOREOS [2018] FamCA 4 FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband contends that it is not just and equitable for a property adjustment order to be made – Where the husband asserts the parties did not combine their respective finances – Where the husband seeks for a discrete hearing on the issue of whether a property adjustment order should be made pursuant to s 79(2) – Where it is found that a discrete hearing would not be convenient or appropriate in the circumstances – Where the husband’s application is dismissed. FAMILY LAW – COSTS – Where the wife seeks costs on an indemnity basis – Where an application for indemnity costs is not granted in the circumstances – Where costs are ordered against the husband on a party and party basis. Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Bevan & Bevan (2013) FLC 93-545 Chapman & Chapman (2014) FLC 93-592 Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248 Fielding and Nichol [2014] FCWA 77 Kohan and Kohan (1993) FLC 92-340 Prantage & Prantage (2013) FLC 93-544 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Southwell v Bennett [2010] NSWSC 1372 Stanford v Stanford (2012) 293 ALR 70 APPLICANT: Mr Zagoreos RESPONDENT: Ms Zagoreos FILE NUMBER: SYC 1519 of 2017 DATE DELIVERED: 10 January 2018 PLACE DELIVERED: Brisbane PLACE HEARD: Brisbane JUDGMENT OF: Forrest J HEARING DATE: 18 December 2017 REPRESENTATION ?????????????? ????????????????? ??????????????????????????????????????????????????? FamCA Coversheet and Orders Page 2 COUNSEL FOR THE APPLICANT: Mr Williams SOLICITOR FOR THE APPLICANT: Hirst & Co Family Lawyers COUNSEL FOR THE RESPONDENT: Mr Galloway SOLICITOR FOR THE RESPONDENT: Michael Conley Lawyers ORDERS UPON THE UNDERTAKING given by the husband to the Court not to sell, dispose of, or further encumber his interest in the real property situated at C Street, Suburb D in the State of New South Wales until further order IT IS ORDERED (1) That the husband’s Application in a Case filed 9 November 2017 is dismissed. (2) That the application of the wife contained in paragraph 2 of her Response to an Application in a Case filed 13 December 2017 is dismissed. (3) That the husband shall pay the wife’s costs incurred in opposing his Application in a Case filed 9 November 2017 to be agreed or assessed in accordance with the Family Law Rules 2004 on a party and party basis. Note: The form of the order is subject to the entry of the order in the Court’s records. IT IS NOTED that publication of this judgment by this Court under the pseudonym Zagoreos & Zagoreos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth). ?????????????? ????????????????? ??????????????????????????????????????????????????? FamCA Reasons Page 1 FAMILY COURT OF AUSTRALIA AT BRISBANE FILE NUMBER: SYC 1519 of 2017 Mr Zagoreos Applicant And Ms Zagoreos Respondent REASONS FOR JUDGMENT 1. Property adjustment proceedings were commenced in the Sydney Registry of this Court by the wife in March of this year. On the application of the husband, on 7 July 2017, Stevenson J ordered the proceedings transferred to this registry. Now, by Application in a Case filed on 9 November 2017, the husband seeks to have the matter set down for a discrete hearing on the issue of whether it is “just and equitable” to make a property adjustment order pursuant to s 79(2) of the Family Law Act 1975 (Cth). The wife opposes the application. 2. Counsel for the husband correctly points out that Rule 10.13 of the Family Law Rules 2004 permits a party to apply for a “decision on any issue”, if the decision may: (a) dispose of all or part of the case; (b) make a trial unnecessary; (c) make a trial substantially shorter; or (d) save substantial costs. 3. In determining any such application, Rule 10.14 gives the Court the discretion to: (a) dismiss any part of the case; (b) decide an issue; (c) make a final order on any issue; ?????????????? ????????????????? ??????????????????????????????????????????????????? FamCA Reasons Page 2 (d) order a hearing about an issue or fact; or (e) with the consent of the parties, order arbitration about the case or part of the case. 4. The Court’s power is not, however, limited to the options set out in Rule 10.14. (See Rule 1.10) The Submissions for the Husband 5. In short, the husband’s principal contention is that it is not just and equitable for a property adjustment order to be made in this case. In making that submission, he refers to the High Court’s decision in Stanford v Stanford (2012) 293 ALR 70 and submits that the High Court held that the “first step” in the process of determining applications for orders pursuant to s 79 of the Family Law Act is an assessment of “the existing legal and equitable interests of the parties in their property” and that the “second step” involves “ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property”. Effectively, he submits that the said “second step” of the process can and should be dealt with by the Court in this case by means of the holding of a discrete hearing on that issue. 6. For the husband it is submitted then, with reference to Rule 10.13, that the benefit for the Court and the parties, if he is successful with the contention that it is not just and equitable for a property adjustment order to be made, lies in the proceedings being thereby disposed of completely, there being no need for any further trial. 7. The Court was told that the determination of that issue as a discrete issue would only require two days of Court time as opposed to five days of Court time for the hearing of “the entirety of the wife’s claim”. It was said that would result in costs savings for the parties and the Court, as well as a likelihood that the Court could accommodate such a hearing much earlier. 8. Significantly, the evidence of the husband and the submissions made on his behalf were prefaced on an assumption that if a discrete hearing as to whether there is any principled reason for interfering with the existing legal and equitable interest of the parties is held, there will be no need for valuations of the husband’s extensive property interests to be provided to the wife and adduced into evidence. Some background 9. The husband is 52 years of age and the wife is 45 years of age. ?????????????? ????????????????? ??????????????????????????????????????????????????? FamCA Reasons Page 3 10. They disagree as to when they started living together. The wife asserts it was in 2006. The husband asserts it was in 2008. They married in 2009. They separated in April 2016. Though they wanted to have children and repeatedly tried to do so with medical assistance, they did not have any. 11. When they met, the wife worked in a professional capacity and the husband was a businessman. The husband had extensive property interests, but the wife had little in the way of assets. 12. The husband said in evidence that he and the wife had “discussions” at “around the time [they] commenced [their] relationship”. The husband was in the midst of resolving a division of property with his former wife at the time and he said the wife in this case said to him: I would not ever want to have those sorts of issues with you. I think we should agree on how we are going to conduct our financial arrangements. I understand that people can enter into a pre-nuptial agreement which protects their assets from claim. If you want me to sign a pre-nup, I’ll sign anything you want. 13. The husband said that he responded with words to the effect of: Good. That’s great. How about, you just do whatever you want with your money and I’ll do whatever I want with mine and we’ll leave it at that. 14. The husband said that the wife’s simple response was: Ok 15. He said that they then subsequently conducted their financial arrangements in accordance with that agreement. He said that they: (a) Did not ever inter-mingle their respective finances; (b) Did not acquire any property jointly until the purchase of an apartment in Suburb D in Sydney “in the context of the deterioration of [their] marriage”; (c) Did not combine their finances into joint bank accounts; (d) Were each individually responsible for their own debts; (e) Each used their own income as each chose without explanation or accountability to the other; (f) Were never involved in any “joint financial decision making”; ?????????????? ????????????????? ??????????????????????????????????????????????????? FamCA Reasons Page 4 (g) Did not share information with each other as to their own financial situation and made financial decisions about their own circumstances without reference to each other; (h) Both contributed to expenses for discretionary spending and food; (i) Shared domestic responsibilities; (j) Left it open to each of them to accumulate his or her own income, acquire property or spend it as each saw fit. 16. The husband said that after their relationship commenced the wife continued with her career and he continued his “business operations and interests”. He said they maintained separate bank accounts. He said he was “unaware how the wife applied her income”. He said he did not account to her for his income and did not consult with her with respect to any of the projects he became involved in. 17. He said that the wife never became a shareholder or director in any of his companies and he did not “specifically nominate her as a beneficiary on any trust [he] established”. He said he made no distributions of income or capital to the wife from any of his entities at any time during their relationship. 18. He said that the marriage was unhappy for about 4 years prior to their final separation in April, 2016. He said that the wife told him in 2013 that she wanted to work from Sydney rather than Brisbane and she asked him to “buy her a residence in Sydney to live in”. He said he agreed to purchase a property and after inspecting a number of properties together they agreed to purchase one in Suburb D in joint names “in the context of [their] relationship difficulties”. 19. The husband said that he made all of the financial contribution to the purchase price and costs of acquiring the property with some of the purchase price being borrowed and secured by the granting of a mortgage to the financier. The property was registered in the names of the husband and the wife as joint tenants. 20. The husband said the wife relocated to live in the Suburb D property in July 2014 and has lived in it ever since. He said that he met the cost of “fully furnishing” that property and paid the mortgage repayments until a few months after the separation. The wife has paid them since. The husband said that after the separation, he gave the wife $500,000 “by way of transfer to [their] joint … account ... to ensure that she could meet her expenses”. ?????????????? ????????????????? ??????????????????????????????????????????????????? FamCA Reasons Page 5 21. The wife continues to hold her half interest in the Suburb D property and is also jointly liable for the mortgage. She otherwise has “interests in property and superannuation of approximately $180,000”. 22. The husband also said “I am taking steps to sever the joint tenancy”. 23. The wife does not want him to sever the joint tenancy. In her evidence, she said that she feared he might further mortgage his half interest if he severs the joint tenancy. At the hearing, the husband agreed to give the Court an undertaking that if he severs the joint tenancy, he would take no steps to further encumber, sell or otherwise deal with or dispose of his half interest in the property. 24. Counsel for the wife still sought an injunction restraining the husband from severing the joint tenancy, and submitted that severance of the joint tenancy might “frighten the mortgagee”. 25. I am not satisfied, given the undertaking the husband gave the Court, that he should be restrained from severing the joint tenancy. Without any evidence that the mortgagee might take an adverse view of such a move, I am not prepared to simply accept that the mere possibility of that supports the necessity for an injunction. Although the actual benefit to the husband of severing the joint tenancy is not clear to me, I also fail to see the prejudice to the wife that would be caused by a severance of the joint tenancy at this point in the proceedings. 26. The wife said that after she and the husband began living together she underwent breast enlargement surgery at the husband’s request. Afterwards, she suffered severe complications and underwent emergency procedure to deal with the complications, some months after the initial surgery. 27. In her evidence, the wife went into some detail about things that would be considered to be contributions by her, normally taken into account in determining property adjustment orders pursuant to s 79(4) of the Act. She said in evidence that she “organised a complete facelift” to a house into which she and the husband moved in B Town in 2009. The house was bought by the husband and registered in his name. She lists in her affidavit “a non-exhaustive summary of the kind of work [she] undertook and/or organised to improve the aesthetics” of that property. There follows a list of non-financial contributions to the improvement of that property. 28. The wife does not agree with the husband’s evidence as to the exact circumstances surrounding the purchase of the Suburb D property. She asserted that it was an investment decision they both agreed upon. She said they both agreed to renovate the property before taking up occupation of it. Again, she has deposed to what could be described as non-financial contributions to the improvement of the property. ?????????????? ????????????????? ??????????????????????????????????????????????????? FamCA Reasons Page 6 29. The wife said that she started living in the Suburb D apartment as she was working in Sydney, but would stay at the B Town home with the husband if she had overnight stays in Brisbane or B Town. 30. The wife has also given evidence about their attempts to have a child early in their relationship. After a few years of trying to conceive naturally, they sought out medical assistance. That assistance included working with fertility specialists in Australia and the USA with a view to actually conceiving a male child. The wife said that they underwent four rounds of in vitro fertilisation up to 2010, with some further associated procedures in 2014. The wife asserted that the husband was “emotionally unsupportive” during the process, but acknowledges he paid $30,000 for the first cycle of treatment whilst she paid about $6,000 for each of the three cycles after that. 31. The wife said that during each round of IVF treatment she was unable to work. She said that she had difficulties with her employer at the time as a consequence. 32. She said that since 2011, she has experienced “bouts of anxiety and depression” for which she began taking medication in 2014. She said that she had a breakdown at work in April 2014 on the discovery that the husband was having “an extra-marital affair”. 33. In 2015, the wife began undertaking command training to obtain a promotion. At the end of 2015, she was, she said, “deemed unfit to hold a Class 1 medical clearance to enable [her] to continue operating [in her profession]”. She took 12 months leave without pay. 34. She said that she is currently being treated in Sydney by a psychiatrist for depression and anxiety and sees him once per month. Although she has not said it, I infer that the wife has not returned to work with her former employer. 35. The wife said in her evidence that the husband did provide her with financial support during their marriage, particularly when she was earning less as a result of the IVF treatment she was undergoing for them. She said that he also made repayments on a car she purchased early in the relationship and on another one she purchased later in the marriage. She said that he provided her with a fuel card which she used to pay for petrol and he paid the rent on an apartment they lived in for a while that was leased. 36. She said that she paid for private health insurance for both of them, obtaining a corporate discount for them. She paid for toll passes for them both, the utility costs in one of the residences they lived in, their groceries and household supplies, the internet connection at another property they lived in, all the costs of caring for their pets, framing costs for artworks that hung in their home, the ?????????????? ????????????????? ??????????????????????????????????????????????????? FamCA Reasons Page 7 purchase of kitchen ware, bedding and soft furnishings and plants, many travel costs around the extensive overseas travel they undertook (relying on her employment related benefits) and the purchase of a dog for her former mother - in-law. 37. She said that they actually did have three joint bank accounts, all opened since they bought the Suburb D property in 2014. One of those appears to be the account for the loan they jointly borrowed to complete the purchase of the Suburb D property. 38. Clearly, there are some differences between the parties as to the facts alleged around their financial relationship. The Wife’s Anshun Estoppel point 39. In his submissions, counsel for the wife referred to the High Court’s decision in Port of Melbourne Authority v Anshun (1981) 147 CLR 589 and submitted that in any event the Husband’s application should fail as it was “unreasonable” for him not to have raised the issue for determination when he was before Stevenson J in this Court in Sydney on his application to transfer the proceedings to this registry. 40. With respect to counsel for the wife, I do not accept the submission that the facts and circumstances of this case give rise to an estoppel such as that confirmed by the High Court in Anshun. The application determined by Stevenson J in Sydney was merely an application to transfer the proceedings within this Court from one registry to another. It did not finally determine or dispose of substantive rights for relief pursuant to Part VIII of the Act . It did not, in my judgment, “declare rights” in a way which could potentially now be viewed as inconsistent with a final determination that it would not be just and equitable to make any property adjustment orders as between the parties in the proceedings. It was the existence of that inconsistency between a prior judgment and a subsequent one sought in respect of “the same transaction” that I consider the learned Judges of the High Court in Anshun found to be an essential element giving rise to the estoppel, in addition to the “unreasonable” failure by the Port Authority to have raised in the first proceedings the point it relied upon in seeking relief in the second proceedings. 41. Whilst I accept that unexplained failure to bring an application such as the one the husband now brings at an appropriate, earlier point in time in the history of the litigation could well be relevant to the exercise of the discretion the Court has in determining it, that is far from considering that an estoppel such as was confirmed in Anshun applies. I am satisfied that it does not in this case. FamCA Reasons Page 8 Is a discrete determination of whether it is just and equitabl e to make an order altering the interests of the parties in their property justified in this case? 42. Counsel for the wife referred to a decision of Hallen AsJ of the New South Wales Supreme Court in Southwell v Bennett [2010] NSWSC 1372, particularly at [15]-[17] where the learned Judge discussed principles applicable to the discretionary exercise involved in deciding an application such as this. I accept that those principles are indeed applicable. 43. One of those was that as a general rule the discretionary power to order separate determination of a question should be approached with caution. Another was that the party seeking the separate determination of a question must satisfy the Court that it would be ‘just and convenient’ for that order to be made. I will not list the many others, but have considered them. 44. In seeking to satisfy the Court that the discrete hearing should be held, counsel for the husband placed substantial emphasis on what he described as the “unchallenged evidence” of the husband that the former couple had, in essence, an unwritten agreement that they would keep their property interests separate. As I understood his submissions, it was the fact that the parties had agreed at the start of their relationship to keep their financial affairs separate and had lived their married lives according to that agreement that can and should support a finding that it would not be just and equitable to make any order altering their property interests. Pointing out that the husband’s evidence about that alleged agreement had not been challenged or contradicted by the wife in any of her affidavit evidence filed in opposing the husband’s application was done in apparent support of a submission, as I understood it, that his evidence must therefore be accepted as an accurate account of the factual position, or at the very least, should be considered as more likely to be correct than not . 45. I further understood that submission to be made to give weight to the argument that there is substantial merit in the husband’s claim that justice and equity does not require property adjustment between the parties in this case and that as the High Court in Stanford had determined that this Court’s obligation to be satisfied, in all the circumstances, that it is just and equitable to make a property adjustment order is not to be conflated with consideration of the matters set out in s 79(4) of the Act in determining what order, if any, should be made, the determination of whether any order should be made at all could comfortably be set down for a discrete, abridged hearing conducted in a setting where the husband does not have to go to the trouble of providing full valuation evidence and where consideration of all of the contributions made by the parties should not be relevant. FamCA Reasons Page 9 46. The husband’s application was not one seeking summary dismissal of the wife’s application for property adjustment orders but rather a discrete hearing of the question as to whether it is just and equitable at all to make property adjustment orders. As counsel for the wife pointed out, trial affidavits are yet to be filed, so in that respect the Court is not in a position of being able to be satisfied that the husband’s evidence about an agreement between the parties at the outset of their relationship conveys the essential factual reality. The Court was told that, I consider, in order to cast doubt on the asserted strength of the husband’s argument about the alleged initial agreement, and, consequently, the merit of his argument that the case can be dealt with simply by discretely determining the “just and equitable” point. 47. It seems to me that having found a few cases where trial judges have, after final hearings, determined that the parties lived their lives together and arranged their financial affairs in such a way that it would not be just and equitable to make property adjustment orders as between them, the husband and his legal representatives have optimistically formed a view that the Court can be persuaded of the same thing in this case even after an abridged trial where the full financial circumstances of the parties are not even before the Court. 48. Whilst I am quick to acknowledge that it is indeed possible that the outcome in this case at the end of the proceedings could be a determination that making no property adjustment order is the just and equitable outcome, I am extremely mindful at this point in the proceedings of other things said by the plurality in the High Court’s decision Stanford. In particular, at [36], their Honours said: The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. Also, at [42], their Honours said: In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were FamCA Reasons Page 10 sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). 49. I am also extremely mindful of the following passage from the judgment of Strickland and Murphy JJ of the Full Court of this Court in Chapman & Chapman (2014) FLC 93-592: 18. As to inference, the plurality in Bevan said (at [89]) “[u]ltimately, however, appellate error will not be demonstrated if it is possible to ascertain, either by reference to an express finding or by necessary inference, that the trial judge has given separate consideration to the two issues” (emphasis added). Similarly, the plurality firmly rejected (at [86]) the notion that s 79(2) forms a “threshold issue” – which their Honours described as a “misleading” description – or that error is demonstrated by a failure to deal with s 79’s separate requirements in a particular order. 19. Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s 79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. … 20. Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108. 50. As was pointed out in the passage just cited, in Bevan & Bevan (2013) FLC 93- 545 at [86], the Full Court had also said: We do not consider it helpful, and indeed it is misleading, to describe this separate enquiry as a “threshold” issue. … The just and equitable requirement is therefore not a threshold issue, but rather one permeating the entire process. 51. In his judgment in Fielding and Nichol [2014] FCWA 77, Thackray CJ said at [33], after a thoughtful discussion of Stanford and the subsequent decisions of the Full Court of this Court that considered and applied Stanford (including Bevan and Chapman): FamCA Reasons Page 11 … it is open to a trial judge, in addressing the s 79(2) question, to consider matters that may be seen as arising under s 79(4), but consideration of those matters is by no means conclusive in determining whether the “just and equitable” test has been meet (sic). 52. I respectfully agree with his Honour and I consider that these decisions make it clear that matters arising under s 79(4) may relevantly be considered in determining the s 79(2) question, though they are not mandatorily to be considered and, if they are considered, they are not necessarily determinative of the s 79(2) question. I am also satisfied that these decisions support the pos ition that the s 79(2) question should not readily be treated as an issue conveniently dealt with in a discrete, “threshold” hearing. 53. Accordingly, having regard to the matters of evidence raised by the wife in the affidavit she filed, particularly the factual matters going to questions of contribution and matters of health, and having regard to the decisions I have referred to above, I do not consider it appropriate to set this matter down for a discrete hearing on the “just and equitable” question in circumstances where there has not been full disclosure (in the sense of the identification and valuation of all the parties’ property interests). The factual circumstances of the matter, as already revealed in the affidavit evidence that has been filed, do not clearly dictate to me that the wife’s case that justice and equity require s the parties’ existing property interests to be adjusted be tween them is likely to fail. Prima facie, she has a right, in the absence of a “financial agr eement” (as defined in the Act) that ousts the jurisdiction of the Court to make orders pursuant to Part VIII of the Act, to a proper hearing of her application. I am not persuaded that discretely hearing only one of the questions to be considered in determining her application pursuant to s 79 of the Act is the best way to go about finalising these proceedings. I do not consider that it is a just and convenient method of managing these particular proceedings to list them for a discrete, two day hearing on the “just and equitable ” question alone prior to full disclosure having occurred. 54. I am also fortified in arriving at my determination on this application by my satisfaction, stated during the hearing of the application, that a final trial on all issues (once single expert valuation evidence is adduced) will not require five days of this Court’s time as apparently is the current view of the legal representatives of the husband. I do not consider that a two day discrete hearing, if it was appropriate at all, would result in such savings and advantages for the parties and the Court in terms of resource management such as to justify it being managed in this way. 55. I will dismiss the husband’s application. FamCA Reasons Page 12 56. Before I move to the question of costs though, I consider it appropriate to deal with one other aspect of the wife’s opposition to the husband’s application that I have not mentioned yet. 57. After the wife was served with the husband’s application in a case, her solicitors wrote to the husband’s solicitors inviting the husband to withdraw his application, asserting that it was an abuse of process. The wife’s solicitors referred to a paragraph in an affidavit filed by the husband earlier in the year in support of his application to transfer the proceedings to Queensland. In that paragraph the husband said: In April 2016, the wife requested (and I agreed) to transfer to her as part of her entitlement to a property settlement the amount of $500,000, to assist her to meet the costs of the [Suburb D] property and costs of these proceedings. 58. The wife’s solicitors contended in the letter that this was an admission by the husband that the wife was entitled to “a property settlement” and that the payment he made to her constituted only part of what she was entitled to. In essence, the solicitors for the wife contended that such “admissions” constituted evidence that would doom the husband’s application to failure . 59. Clearly, the husband did not withdraw his application. 60. In his affidavit filed in support of the application for a discrete hearing the husband said of the same factual matter: Shortly following our separation, I agreed to gift the Wife the amount of $500,000 by way of transfer to our joint Westpac account on 21 April 2016, to ensure that she could meet her expenses. He said nothing of the earlier deposition. 61. Although I have had this evidence in mind when determining to dismiss the husband’s application for a discrete hearing, I have not decided it on the basis of a finding that the husband is bound by his earlier deposition and estopped from changing his position. I did not understand counsel for the wife to make that argument, in any event. I consider that notwithstanding having sworn to that assertion earlier in 2016, the husband is still entitled to argue in the proceedings, should he so decide, that it would not be just and equitable to make a property adjustment order as between them. Of course, he may eventually be asked some questions about his state of mind when he swore the earlier affidavit, but a change of mind is not unknown amongst litigants before this Court and the relevance of his earlier state of mind will be a matter for later consideration. FamCA Reasons Page 13 Costs 62. At the conclusion of the hearing, I invited submissions from the parties in respect of costs having regard to the potential outcomes in the matter. The wife had an application for the husband to pay her costs on an indemnity basis before the Court. 63. For the wife, it was submitted that if the husband was unsuccessful in his application the wife should have her costs on an indemnity basis. The letter written to the husband’s solicitors by her solicitors on 22 November 2017, that I have just referred to, put the husband on notice that if he did not withdraw his application the wife would seek her costs on an indemnity basis. That letter was referred to in support of the costs application. 64. One party putting the opposing party on notice that costs would be sought on an indemnity basis is something this Court sees frequently. In fact, I consider it is done far too frequently and unnecessarily. However, simply telling the other party that costs will be sought on an indemnity basis does not justify an order being made on an indemnity basis if the application is unsuccessful. 65. Of course, a costs order departing from the general statutory provision that each party shall bear his or her own costs in proceedings under the Act may be made if the Court is of the opinion that there are circumstances that justify it in doing so. If so, the Court may make a costs order that it considers just. (s 117(1) and s 117(2)) 66. Matters to have regard to in considering what order, if any, should be made for costs under s 117(2) are set out in s 117(2A) of the Act. Pursuant to Rule 19.18 of the Rules the Court may order that a party is entitled to costs, inter alia, as assessed on a particular basis (eg lawyer and client, party/party or indemnity). 67. Even if the Court is satisfied that the circumstances justify a costs order being made, generally they are to be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from that usual course. To order costs be paid on an indemnity basis, the question must be whether the particular facts and circumstances warrant the making of such an order. (See Kohan and Kohan (1993) FLC 92-340, Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248 and Prantage & Prantage (2013) FLC 93-544. As I have said, a party is not entitled to costs on an indemnity basis simply because they write to the other party and say “I will seek costs against you on an indemnity basis if you proceed and are unsuccessful”. 68. In Colgate-Palmolive, Sheppard J listed some of the types of circumstances that have been held to justify costs being awarded on an indemnity basis in the past. They include: FamCA Reasons Page 14  The making of allegations of fraud knowing them to be false;  The making of irrelevant allegations of fraud;  Particular misconduct that causes loss of time to the Court and the parties;  The fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law;  The making of allegations that should never have been made;  The undue prolongation of a case by groundless contentions; and  An imprudent refusal of an offer to compromise. 69. In the first instance, having regard to the matters that I am required to consider pursuant to s 117(2A), I am satisfied that a costs order against the husband in the circumstances of his unsuccessful application is justified. In particular, I consider the apparent disparity between the parties’ comparative financial positions one of the factors justifying departure from the position that each party bears his or her own costs. I also consider the fact that the husband has been wholly unsuccessful in respect of his application in a case to be a particularly weighty fact, along with the fact that a letter was written to his solicitors before he filed the application informing them that the application for a discrete hearing was opposed and another letter was written to them again after the application and supporting affidavit were filed and served, inviting him to withdraw the application. That the application was not decided precisely on the grounds asserted by the wife’s solicitors that it would be does not derogate significantly, in my judgement, from the weight of this fact in the determination of this costs application. 70. That the wife did not succeed in obtaining the injunction she sought, restraining the husband from severing the joint tenancy in respect of their Suburb D property, does not persuade me that a costs order against the husband is not justified or that one in his favour in respect of that part of the proceedings is justified, particularly in the light of the fact that the husband did give the Court an undertaking not to sell, dispose of, or further encumber his interest in the Suburb D without apparent hesitation when his counsel was asked in Court whether he proffered one. 71. I am not persuaded that costs should be ordered to be paid on an indemnity basis. Whilst the application for a discrete hearing on the “just and equitable” question in the factual circumstances of this case could be regarded as “adventurous”, it has to be acknowledged that the High Court’s decision in FamCA Reasons Page 15 Stanford has raised many questions about the way in which property adjustment proceedings in this Court are determined and that not all of those questions have necessarily been definitively answered at this point in time. I would not go as far as finding that the application was brought for some ulterior motive or in wilful disregard of clearly established law, such that costs on an indemnity basis are justified. 72. I will order that the husband pay the wife’s costs of opposing his application for a discrete hearing on the “just and equitable” question as agreed or assessed pursuant to the Rules on a party and party basis. I am satisfied such an order is both justified and just.

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