Wellen and Wellen

[2018] FCCA 1187

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELLEN & WELLEN [2018] FCCA 1187

Catchwords:
FAMILY LAW – Material non-disclosure by the husband causing the trial to be adjourned – costs unnecessarily incurred and thrown away – indemnity costs order.

Legislation:

Family Law Act 1975, ss.117(2), 117(2)(A), 117(2)(A)(a)

Applicant: MS WELLEN

Respondent: MR WELLEN

File Number: BRC 8305 of 2015

Judgment of: Judge Egan

Hearing date: 11 April 2018

Date of Last Submission: 11 April 2018

Delivered at: Brisbane

Delivered on: 11 April 2018

REPRESENTATION

Counsel for the Applicant Mr Foley

Solicitors for the Applicant: Get Real Legal

Respondent: In Person

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the Respondent pay the Applicant’s costs thrown away as a result of the adjournment of the matter before Judge Egan on 12 March 2018, and that such further costs be assessed on an indemnity basis,

2. That the quantification of costs pursuant to the Federal Circuit Court Rules 2001 be adjourned for consideration at 9.30am on 16 April 2018.

3. That the Respondent provide a copy of his 2016/2017 income tax return and a copy of his 2017 income tax assessment to the Applicant’s solicitors forthwith.

4. That the further hearing of this matter be adjourned to the sitting week commencing 4 June 2018 at 9.30am at the Maroochydore Court.

5. That each party have liberty to apply to have the matter relisted on the giving of five (5) days’ notice, each to the other.

IT IS NOTED that publication of this judgment under the pseudonym Wellen & Wellen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8305 of 2015

MS WELLEN

Applicant

And

MR WELLEN

Respondent

REASONS FOR JUDGMENT

1. I have heard submissions by Mr Foley of Counsel for the wife and I have also heard Mr Wellen as to the circumstances surrounding the adjournment of the trial listed for hearing before me on 12 March 2018.  The Husband admits that he filed a financial statement on 16 February 2018 which relevantly did not disclose the fact that, in December 2017, he had purchased a property situated at Property A, (omitted) of Brisbane.

2. It was clear at the time the matter was last listed for hearing that the wife had been taken surprise by the fact of non-disclosure of that purchase by the husband, quite apart from any argument relating to whether that had any effect upon the monetary value of the asset pool which would affect any order as to adjustment of property to be made by a Judge. The wife was fully entitled to investigate the matters surrounding the purchase of that property, where the funds emanated from for the purchase of that property, the terms on which the property was purchased, and matters relevant to repayments to be made under any loan in relation to any such purchase.

3. As it transpired, then Counsel for the husband on 12 March 2018, Mr Thiele, conceded that there had been material non-disclosure on the part of the husband. He sought an adjournment on another basis which was not a basis germane to the reason why I made an order that the trial be adjourned until today. It was my view then, and it is my view now, that a party should not be put in the position at trial of guessing what the true financial position of her former husband is in circumstances where there had been ample opportunity here, on the part of the husband, to make full disclosure in relation to the property at Property A .

4. There is power for me to award costs pursuant to Section 117(2) of the Family Law Act (“the Act”) where I am of the opinion that there are circumstances that justify the making of such an order. In this case, it is relevant for the purposes of section 117(2)(A) of the Act that the husband, by his conduct, has failed to materially disclose relevant financial matters relating to the purchase of the property at Property A. It is also relevant for the purposes of Section 117(2)(A)(a) of the Act that the wife is in a substantially weakened financial position relative to her husband, as disclosed on the material.

5. In all of the circumstances, therefore, I consider it appropriate that I make an order that the husband pay the costs thrown away as a result of the adjournment of the matter before me on 12 March 2018, and further, that those costs be assessed on the indemnity basis.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 11 May 2018