procedural. The husband's application for costs was refused. He was ordered to pay the wife's costs of the specified Form 2 applications and hearing days, with those costs to be agreed or assessed and paid...
Key principles
Under s 117 of the Family Law Act 1975 (Cth), the usual position is that each party bears their own costs, but the court may order costs where circumstances justify it, having...
An offer's value compared with the ultimate property outcome does not, by itself, determine whether a costs order should be made. The offer must be assessed in the context of the...
A party's failure to provide full financial disclosure and comply with orders may explain why the other party could not properly assess settlement offers, and may contribute to...
Costs thrown away by an adjournment may be ordered against a party where that party's failure to file required trial material made it impossible to proceed.
Issues before the court
Whether the husband's settlement offers justified a costs order in his favour.
Whether the husband should pay the wife's costs of interim applications and reserved hearing days.
Plain English Summary
The court did not treat the husband's settlement offers as sufficient, by themselves, to justify making him a costs order. It considered that he had not given full financial information or complied with court orders, leaving the wife unable to assess the offers properly and raising doubts about whether he would perform them. Those same failures contributed to interim applications and additional trial preparation. His lack of trial documents also caused an adjournment. The court therefore rejected his costs claim and ordered him to pay several categories of the wife's costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Whether the husband's non-disclosure increased the wife's trial preparation costs.
Whether the husband should pay costs thrown away on 15 December 2008.
Cited legislation
2 cited instruments linked from this judgment.
Deep Dive
2,191 words · generated 28/09/2026
What happened
The judgment is O'Malley & O'Malley (No. 2) [2009] FamCA 573, delivered by Brown J on 2 July 2009. Although the user’s introductory heading refers to Robinson v Higginbottham, that is not the judgment being analysed. Robinson v Higginbottham is one of the authorities cited in the reasons. The decision itself concerns the costs of financial and interim proceedings between Mr and Ms O'Malley.
The court had made final property orders on 5 February 2009. Those orders reserved costs and set a process for written submissions. The husband sought $196,339.30 in costs. The wife sought costs of interim applications, a contribution to the work required to prepare for trial, and costs thrown away when the trial could not proceed as scheduled on 15 December 2008.
The husband relied principally on offers made between 2006 and 2008. They included offers of $1.3 million and $1.5 million, as well as a later offer said to be $1 million. The wife’s position was that she could not sensibly assess those offers because important financial information was not disclosed, the parties’ financial position was changing, and the husband had not complied with orders. The reasons recount a series of disputed interim matters, including applications concerning property sales, financial support, debts and the execution of documents.
The court rejected the husband’s claim for costs. It ordered him to pay the wife’s costs of and incidental to the Form 2 applications filed on 22 November 2006 and 11 January 2008, along with specified hearing-day costs. It also ordered $10,000 towards the wife’s trial preparation costs and $3,700 for costs thrown away on 15 December 2008. The costs of the interim applications and specified hearing days were to be agreed or assessed under the Family Law Rules 2004.
The property findings were not reconsidered in this costs judgment. The judge recorded that no appeal had been filed against the 5 February 2009 orders, so the findings in that judgment stood for the purposes of determining costs.
Why the court decided this way
The statutory starting point was s 117(1) of the Family Law Act 1975 (Cth): ordinarily, each party bears their own costs. Section 117(2) permits the court to make a costs order where circumstances justify it, and s 117(2A) identifies factors the court must consider. The judgment discussed the parties’ financial circumstances, their conduct, compliance with orders, whether either party was wholly unsuccessful, and written offers to settle.
The court considered that the wife had limited income and employment prospects, while the husband had a significantly greater earning capacity. The judge also noted that the parties’ final financial positions could not be precisely quantified from the available material. Those circumstances were relevant, but the reasons place particular emphasis on litigation conduct and the offers.
The judge found that the husband had not made full and frank financial disclosure. The reasons state that he had relevant documents which were not produced until trial, and that other relevant documents within his possession or control were never produced. The wife had little knowledge of the parties’ financial affairs before separation. The judge found that her solicitors had to try to fill the gaps left by the incomplete disclosure. These findings mattered both to the costs claimed for trial preparation and to the wife’s ability to assess settlement proposals.
The court did not approach the offers as simple figures to compare against the final property outcome. It relied on Pennisi v Pennisi (1997) FLC 92-774 for the proposition that an offer’s value relative to the eventual award does not automatically determine costs. The offer must be considered in its context, including what the recipient knew about the parties’ financial position while the offer remained open. Here, the value of the husband’s business and work in progress, as well as the parties’ debts, were unclear. The judge concluded that the wife was not in a position to assess the offers properly.
The judge also considered whether the wife could reasonably expect the husband to perform what he offered. The reasons describe repeated failures to meet court-ordered obligations and instances where documents had to be executed by a registrar. Against that background, the judge considered it reasonable for the wife to be sceptical about the reliability of offers. That was not a finding that every offer was intrinsically unreasonable. It was a conclusion about the offers in the circumstances shown by this record.
The court separately addressed the costs of the 15 December 2008 listing. The husband had filed none of the required trial material. He was given a further opportunity to file material, and the trial was adjourned. The judge found that the husband’s failure to file the material was the reason the hearing could not proceed. The resulting $3,700 was therefore treated as costs thrown away.
Before and after state of the law
The judgment does not announce a new statutory test. It applies s 117 of the Family Law Act and draws on existing authority about settlement offers. The baseline described by Brown J is that each party ordinarily bears their own costs under s 117(1). A costs order is an available exception under s 117(2), informed by the factors listed in s 117(2A).
The decision’s contribution is practical and contextual. It illustrates why an offer’s amount alone may not resolve a costs question. Pennisi is quoted for the point that s 117(2A)(f) does not prescribe a mechanical consequence when an offer is greater or lesser than the result. The closer an offer is to the result, the more weight that may warrant, but the principle is not rigid. The offer must be assessed against the recipient’s knowledge and the surrounding circumstances.
The judgment applies that reasoning to a case where financial disclosure was incomplete. It explains that an offer cannot be evaluated in isolation if the recipient lacks relevant information about the parties’ assets, liabilities, business interests or income. It also treats ability and willingness to comply as part of the practical context in which the offer is received. In this case, prior non-compliance and inconsistent evidence were relevant to the wife’s assessment of whether the husband could fulfil proposed terms.
The decision also demonstrates how conduct under s 117(2A)(c) and compliance under s 117(2A)(d) may bear on costs. The judge connected the husband’s conduct with applications to obtain financial information, secure compliance and deal with property and debt issues. Separately, failure to meet trial directions caused an adjournment and a distinct costs consequence.
The judgment’s holding is tied to the facts and the statutory discretion. It does not say that incomplete disclosure automatically defeats a costs claim based on an offer, or that every breach of an order warrants costs. Rather, it shows how the court evaluated the combined circumstances before it.
Key passages with plain-English translation
At paragraph [58], the judge stated that a party “cannot simply refuse to make the financial disclosure required by the Family Law Rules 2004 (Cth) and expect the other party to assess offers made by him or her in a vacuum.” In plain English, a settlement proposal cannot be assessed fairly if the recipient lacks the financial information needed to understand what is being proposed.
The same paragraph recognises the importance of whether an offer is likely to be performed. The judge said that it was reasonable for a recipient to consider the likelihood of an order in the proposed terms being complied with. The point is not limited to the dollar value or percentage in an offer. In this case, past compliance failures and findings about the husband’s evidence affected how the offers could reasonably be viewed.
Paragraph [60], drawing on Pennisi v Pennisi, explains that offers must be assessed “in the context of the case and the extent of the offeree’s knowledge of the parties’ financial circumstances while the offer is live.” In plain English, the question is not simply whether the offer looks close to the eventual result when viewed later. The court considers what information was available at the time and the circumstances in which the offer was made.
At paragraph [62], the judge concluded: “I am not satisfied that any of the offers made by the husband, prior to or after proceedings were issued, warrant a costs order in his favour.” That is the outcome of applying the contextual approach to the offers and the disclosure and compliance findings.
The conclusion also distinguishes different categories of costs. At paragraph [63], the judge ordered costs of the wife’s interim applications and specified hearing days. At paragraph [64], the judge connected the failure to provide full disclosure with increased trial preparation costs, ordering a $10,000 contribution. At paragraph [65], the judge ordered $3,700 in costs thrown away because the husband was not ready to proceed on 15 December 2008.
What fact patterns trigger this precedent
This decision is relevant to costs disputes where one party relies on settlement offers but the other says that inadequate disclosure prevented a meaningful assessment. The factual features that mattered here included uncertainty about business value, work in progress and liabilities, combined with a finding that relevant financial documents had not been produced. A costs argument based on an offer may therefore raise questions about what the recipient knew when the offer was open, what financial information was missing, and whether the missing information was material to assessing the proposed division.
The case is also relevant where a party’s past compliance affects the practical reliability of an offer. The judge considered repeated failures to make payments or sign documents, the need for applications to enforce orders, and concerns arising from inconsistent evidence. Those circumstances formed part of the context for assessing whether the wife could reasonably view the offers as capable of performance. The judgment does not establish that non-compliance always makes an offer unreliable; it demonstrates that the court may consider it in the particular factual setting.
A further relevant pattern is where non-disclosure or non-compliance creates extra litigation work. Here, the court found that the wife’s solicitors had to address gaps in the financial material and that the husband’s conduct contributed to interim applications. Such matters may be relevant to the statutory factors concerning conduct and compliance, alongside the other circumstances required by s 117(2A).
Finally, the decision addresses costs thrown away where a party fails to file required trial documents and the matter must be adjourned. The important factual finding was causal: the husband’s failure to file material left him unable to proceed, and that failure was the sole reason for the adjournment. The case therefore illustrates the importance of identifying the particular default, the resulting hearing disruption, and the costs said to have been wasted.
How later courts have treated it
The supplied judgment contains no decisions from later courts and provides no account of subsequent treatment of O'Malley & O'Malley (No. 2). It is therefore not possible, from this source alone, to say whether later courts followed, distinguished or otherwise treated this decision. The judgment itself cites Robinson v Higginbottham and Pennisi v Pennisi, but those are authorities considered in 2009, not later treatment of this case.
The judgment’s discussion of Robinson v Higginbottham concerns the expectation that parties make serious settlement attempts rather than engage in a “war of attrition”. Brown J pairs that expectation with the qualification that financial disclosure is necessary for offers to be meaningfully assessed. The discussion of Pennisi supplies the contextual approach to offers. Those authorities explain the reasoning in this judgment, but the provided text does not establish the subsequent history of the 2009 decision.
Still-open questions
The judgment leaves the application of its reasoning to different factual settings open. It does not specify how much missing financial information will be enough to prevent meaningful assessment of an offer. Nor does it set a threshold for when doubts about an offeror’s capacity or reliability should affect the weight given to an offer. Those questions remain dependent on the facts and the statutory factors.
The reasons also do not quantify the precise additional trial preparation work attributable to non-disclosure. The wife sought $15,000, described as one half of a total $30,000 figure, but did not particularise that part of her claim. The judge considered $30,000 modest in light of experience with costs evidence, but ordered a $10,000 contribution. The decision therefore does not establish a general method for calculating a costs contribution where the underlying work is not itemised.
The judge’s findings about the parties’ finances were also qualified. The final asset pool could not be precisely quantified without sale proceeds and tax information. The court therefore relied on indicative figures when discussing financial circumstances. The judgment does not determine how a different or subsequently verified asset pool would have affected the costs analysis.
Finally, the source gives no later case history. Any assessment of how the decision has been applied since 2009 would require sources beyond the judgment supplied here. This is general legal information, not legal advice; Zoe can make mistakes; before you act on this, rely on it, or use any draft, have it checked by a qualified Australian lawyer.
(a) of and incidental to the form 2 application filed by her on 22 November, 2006 incurred to (and including) 7 December, 2006;
[10]
(b) of and incidental to the form 2 application filed by her on 11 January, 2008; and
[11]
(c) costs of the day (if not included in costs pursuant to paragraphs (1)(a) and (b) hereof) of 28 February, 2007, 23 January, 2008 and 31 January, 2008;
[12]
and the quantum of such costs be as agreed or, failing agreement, assessed pursuant to the Family Law Rules2004, and paid within four months of agreement or assessment, as the case may be.
[13]
(2) That the husband pay towards the wife's costs of the applications for final property orders :
[14]
(a) the sum of $10,000 (being part of the costs of preparation for trial); and
[15]
(b) the sum of $3,700 (being costs thrown away on 15 December, 2008);
[16]
IT IS NOTED that publication of this judgment under the pseudonym O'Malley & O'Malley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
[17]
On 5 February 2009 judgment was delivered and orders made in respect of competing applications for final property orders. Paragraph 13 of the orders provided for the filing and serving of written submissions in relation to the costs of the applications for final and interim property and spousal maintenance orders, including reserved costs. A party who sought costs was to file and serve a written submission within 28 days and the respondent to such an application was to file and serve any written submissions in answer within a further 28 days.
On 12 February 2009 the husband faxed to the court a submission in which he sought that the wife pay his costs of $196,339.30. Attached to that submission was correspondence from the husband's solicitors to the wife's solicitors and a number of itemised accounts rendered by his solicitors.
On 4 March 2009 a further document was filed by the husband, headed "Submissions in support of husband's costs application", together with an affidavit affirmed by the husband on 3 March 2009 and an affidavit of service of the written submissions and affidavit on the solicitors for the wife. In his affidavit the husband deposed to having had pro bono assistance of counsel to prepare his application. A subsequent letter from Ms. James of counsel, faxed on 3 March, 2009, corrected two minor errors in the filed submissions and affidavit affirmed by the husband.
On 5 March 2009 the solicitors for the wife filed written submissions in which the wife sought that the husband pay her costs and disbursements of interim applications ($90,000), preparation for trial ($15,000, being one half of these costs) and costs thrown away on 15 December, 2008 ($3,700).
Neither party filed any written submissions in answer to the submissions of the other party.
As no appeal has been filed against the orders made on 5 February 2009, the findings in the judgment delivered that day stand.
The normal rule in proceedings under the Family Law Act 1975 ("the Act") is that each party to litigation bears his or her own costs (s 117(1)). The court may make an order for costs if it is satisfied that circumstances justify that course sets out the factors to which the court shall have regard when considering a costs application.
[18]
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
[19]
As noted, the husband's failure to make payments or sign documents, as ordered, required the wife to make a number of applications to a Registrar for documents to be signed on his behalf.
The husband's failure to comply with any orders for the filing of documents for trial meant that the wife's costs of 15 December 2008 were thrown away.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The husband submitted that the wife was wholly unsuccessful in her application for spousal maintenance, which is correct. However, that aspect of her application involved no evidence other than that which she was bound to adduce in support of the property orders sought by her.
Neither party was wholly successful in relation to the property orders sought. As trial the wife sought 80% of the net asset pool; the husband sought that she receives 60%. As noted in the judgment, his submission was made in the context of a smaller asset pool and on the basis that a number of taxation and credit card debts would be jointly paid. The court found it just and equitable to apportion 65% of the pool to the wife and 35% to the husband and did not accede to the husband's submission that outstanding ATO debts, superannuation guarantee payments and credit card debts should be treated as joint debts**.**
On the figures advanced by the husband at trial, he sought that the wife receive some $600,000. She received significantly more than that but significantly less than the 80% of the asset pool which she had claimed.
(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
This subparagraph is at the heart of the husband's application for costs. In the well argued submission filed on 4 March, 2009, offers made by each of the parties were summarised and further particulars are set out in the affidavit affirmed by the husband on 3 March 2009. Between April 2006 and March 2008 a number of offers passed between the parties. I summarise the most relevant of them.
On 20 April 2006 the husband offered to pay the wife $1.3 million in four tranches. A sum of $600,000 was to be paid within 60 days of final property orders, $400,000 within twelve months, $150,000 within a further six months and the last $150,000 within a further six months. Under that offer the wife could have received payments over a period of two years and sixty days after final consent orders were made. The offer provided that the wife retain her BMW motor vehicle; all other assets of the parties were to be transferred to or retained by the husband. The wife was to be solely responsible for her personal tax liabilities and any capital gains tax liability arising from the sale of investment properties registered in her sole name.
[20]
. . . do not limit a Court's attention to offers which are greater than the amount awarded. Nor does the paragraph state what consequences flow from whether the offer is greater or lesser than the amount awarded, or how much that is the case. Words of limitation should not be imported into the provision and nor should it be read as though offers in proceedings under the Act carry the same consequences as payments into Court in common law matters.
[21]
We do, however, consider that the closer the offer is to the award when the offer is under the amount awarded by the Court, the more weight that should be given to this factor in considering the question of costs. This principle must not, however, be rigidly applied. Offers must be seen in the context of the case and the extent of the offeree's knowledge of the parties' financial circumstances while the offer is live. In the family law jurisdiction, it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties' financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer. There are also cases where the contents of the offer are in themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account when considering whether it was reasonable or not to accept an offer, no matter how close to the ultimate result the offer may be.
[22]
Prior to the proceedings there was a mediation (this is referred to in the husband's costs submissions) and after that a number of offers were exchanged. At that time the value of the husband's business and his work in progress as well as the personal and business debts of the husband were unclear. Interim applications had to be made when first the ATO, and then NAB, pressed for payments of outstanding debts. Only when those debts were pressed was the wife in a position to know their extent. Once proceedings were filed the husband failed to make full financial disclosure, which meant the wife was never in a position to fully assess offers. Given his alleged incapacity to pay even the spousal maintenance ordered in early 2007 and the unpaid debts to the ATO, NAB and other creditors, the wife could not be criticised for viewing offers made by him with scepticism and was not in a position to properly assess them.
[23]
I am not satisfied that any of the offers made by the husband, prior to or after proceedings were issued, warrant a costs order in his favour.
I am satisfied the husband should pay the wife's costs of and incidental to the applications filed by her on 22 November, 2006 and 11 January, 2008 and, if not included in those costs, the costs of the day of 28 February, 2007, 23 January, 2008 and 31 January, 2008. All of those costs were reserved.
I am satisfied the husband's failure to make full financial disclosure increased the wife's costs of preparation for trial. The wife's affidavit of evidence in chief demonstrates the extent of the work undertaken by her solicitors and reference was made to this in the judgment of 5 February 2009.
The wife did not particularise this aspect of her claim, save for asserting the $15,000 sought was one half of a total figure of $30, 000. Having regard to the evidence of costs often before the court, $30,000 seems a modest sum. Nevertheless, I propose to order that the husband contribute $10,000 towards the wife's legal costs, over and above the costs reserved and costs of 15 December, 2008.
I am satisfied the husband should pay the wife's costs thrown away on 15 December, 2008 amounting to $3,700. The husband was in no position to proceed on that day; he had filed no amended response, no affidavit of evidence in chief and no statement of financial circumstances.
The quantum of the costs of the interim applications and costs of the days referred to will be as agreed or, failing agreement, as assessed pursuant to the Family Law Rules2004.
Parties
Applicant/Plaintiff:
Robinson
Respondent/Defendant:
Higginbottham
Legislation Cited (2)
Law Act 1975
Law Rules 2004
AI Analysis
Outcomeprocedural
Disposition:
The husband's application for costs was refused. He was ordered to pay the wife's costs of the specified Form 2 applications and hearing days, with those costs to be agreed or assessed and paid within four months of agreement or assessment, plus $10,000 towards trial preparation costs and $3,700 in costs thrown away, payable within four months of the orders.
(a) the financial circumstances of each of the parties to the proceedings;
The parties' respective financial circumstances were canvassed in the judgment of 5 February 2009. At that time the wife had no income other than government benefits referable to the parties' son, and had been ineligible for Centrelink payments because investment properties were registered in her name. She had not worked in paid employment for some eighteen years. The court found it probable that her lack of employment history and qualification would mean she will never be in a position to obtain anything other than a modestly paid job.
Absent evidence of the net proceeds of sale of the former matrimonial home and shares (both to be sold pursuant to the property orders) or evidence of the calculation of capital gains tax, income tax and Medicare levy (if any) pursuant to paragraph 6(c) of the final orders, the court cannot quantify the pool. On the figures found at trial the wife's entitlement represented $991,533 of an asset pool of $1,525,436; as she was found to have assets totalling $61,696 she would be entitled, on those figures, to another $929,837. As noted in the judgment, those figure can only be indicative as the final pool depended on the sale price of the home and jointly owned shares, the quantum of outstanding rates and capital gains tax, and confirmation of a sum held in trust for the parties by solicitors.
As the orders provided for the sale of the former matrimonial home in which the wife and the child were then living, it was envisaged the wife would use some part of the capital sum received by her to rehouse herself and the child.
The court found that the husband had not paid child support and doubted his commitment to do so in the future.
The court found that the husband's evidence of his employment was inconsistent and fragmentary and that it could have no confidence in the accuracy of income figures advanced by him. The court found that prior to the parties' separation the husband was taking some $115,000 per annum out of the trust, that the recent diminution in his income was largely attributable to a change in his working habits and uncontained debts but may be affected in the future by financial matters beyond his control. The court was satisfied he had an earning capacity which was significantly in excess of that of the wife.
The court took into account the parties' respective personal liabilities and the fact that the husband would be left with significantly higher debts than the wife.
On the figures in the judgment the husband was to receive 30% of the pool, or $533,903. Assets (actual and notional) in his hands were found to total $207,995, including superannuation of just over $90,000, leaving a balance of $325,908. As noted earlier, this figure could only be indicative.
In reaching its decision the court took into account the outstanding legal fees of both parties and that those of the husband were higher than those of the wife.
(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;
Neither party was in receipt of legal aid.
(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; For the wife it was submitted that the husband's conduct in the course of the proceedings lead to inordinate delays and substantially increased her costs;
First, the wife submitted that the husband's refusal to comply with orders and to make full financial disclosure required her to issue numerous interim applications. These included applications to secure spousal maintenance (which involved a number of hearings and an urgent interim application), ensure taxation liabilities were met, avert foreclosure proceedings by the National Australia Bank and secure the sales of various properties owned by the parties. On each occasion the wife's application was successful. On a number of occasions the husband failed to comply with court orders, requiring the wife to have documents signed on his behalf pursuant to s 106A of the Act.
Second, the wife submitted that her costs of preparing for trial were increased by the husband's failure to make proper financial disclosure or discovery, and failure to file documents. The husband's solicitors filed a notice of ceasing to act on 1 October 2008 but he had filed no documents since 30 January 2008, despite a number of orders requiring him to do so. The trial was listed to commence on 15 December 2008 and the husband appeared that day, having filed no trial material whatsoever. An application by the wife to proceed on an undefended basis was not granted and he was given yet another opportunity to put material before the court, which he did.
The court found force in the wife's submissions relating to the husband's failure to make full and frank financial disclosure. His own evidence at the trial made it clear that he had numerous documents which he failed to produce until then which were of relevance to the proceedings. Numerous other documents, equally relevant, which must have been within his possession or control, were not produced at all. He candidly admitted that the wife knew little or nothing of their financial situation prior to separation and his failure to make proper financial disclosure meant her solicitors had to do their best to fill the gaps. The court found the wife's case to have been meticulously prepared and that the husband's failure to make full financial disclosure stemmed from a reluctance to lay his past and current financial affairs open for inspection and analysis.
Third, the wife submitted that the husband should pay her costs of 15 December, 2008 which totalled $3,700 of which $2,200 was counsel's brief fee. On that day the court gave the husband a last opportunity to file material. His failure to do so was the sole reason the trial was adjourned to 19 December, 2008.
The husband's submission did not deal with these submissions, findings referable to them and their relevance to s.117(2A)(c). His claim for costs was predicated on offers made by him.
The letter of offer does not specify what percentage of the net asset pool the offer represented. It does state that an earlier offer of $1.4 million represented approximately 65% of the net asset pool, not allowing for capital gains tax, and said the reduced offer took into account advice that the husband would be facing a potential capital gains tax liability of approximately $80,000, as he would be required to sell at least two investment properties. The offer was to remain open for fourteen days.
That offer was rejected on 20 May 2006.
On 3 July 2006, the husband's solicitors made a written offer that he pay the wife $1.5 million, of which $150,000 was to be characterised as capitalised spousal maintenance. Payment was to be made within six months of final property orders. The offer required the wife to vacate the former matrimonial home (and lift an intervention order to allow the husband to live there) and to agree to allow the husband to use the former matrimonial home as security to borrow any monies necessary to meet the payments to the wife. That offer provided, as had the earlier one, that the wife retain her BMW motor vehicle, be solely responsible for personal and capital gains tax liabilities in her name; all other assets were to be transferred to or retained by the husband.
The offer of 3 July 2006 was to remain open for fourteen days; a letter noted it was the final attempt to resolve the matter without proceeding to litigation.
On 19 July 2006 the wife made a counter offer of $1.5 million plus her income tax debt and all tax liability for the family trust. Until the transfer of the former matrimonial home to the husband, she sought spousal maintenance of $300 per week, plus mortgage instalments and all household bills. She also sought child support of $200 per week. That offer was to remain open for seven days.
Clarification of that offer was sought by the husband's solicitors on 4 August 2006 and by letter of 4 August 2006, the wife effectively sought a further $50,194, being one half of (according to her solicitors), the parties' then share portfolio. That offer was withdrawn on 17 August 2006, the wife's solicitors noting in a letter dated 17 August 2006 that they had not had a response.
On 29 September, 2006 the husband filed an application for final orders and a form 2 application for interim orders was filed by the wife on 22 November, 2006 returnable on 7 December 2006. Negotiations between the solicitors ensued and on 28 November 2006 an offer was made by the wife to resolve the interim application. In a reply dated 30 November 2006 the husband made a counter offer, which involved the residue of the proceeds of sale of a property being distributed 60% to the wife and 40% to the husband, with the characterisation of the payment to be left to the trial judge. On the husband's calculations the balance to be so divided totalled $26,589.73; 40% would be $10,635.89.
On 7 December 2006 the wife's application was heard. A number of orders were made by consent, however the disbursement of the proceeds of sale was contested. The court ordered the husband receive $5,000 and the wife receive the balance. Thus the husband received significantly less than he had sought. Costs were reserved.
On 28 February, 2007 the husband was ordered to file and serve an affidavit as to his financial circumstances, and an affidavit from his accountant, by 4:00 pm. on 5 March, 2007. That order was made in anticipation of the wife's application for spousal maintenance being listed on 7 March, 2007. On 28 February, 2007 Senior Registrar FitzGibbon reserved the costs of that day.
As found in the judgment, Senior Registrar FitzGibbon heard the wife's application for spousal maintenance on 7 March, 2007 and reserved his decision. Prior to the decision being delivered, the matter was listed again before the Senior Registrar, on the urgent application of the wife. The Senior Registrar's reasons of 19 March, 2007 set out the background and the reason for the urgent listing. The Senior Registrar ordered the husband to continue to meet the expenses of the wife in accordance with the orders of December 2006; in default, the husband was to transfer shares registered in his name on a trust for sale to the wife and she was authorised to use those funds to meet his obligations under court orders. In default of compliance a registrar was authorised to execute documents in the husband's name. On that day the Senior Registrar ordered the husband to pay the wife's costs of $1,600.
On 30 March, 2007 the Senior Registrar delivered judgment on the application for spousal maintenance, and ordered the husband to pay to the wife $400 per week. Orders provided for the wife to file any submission as to costs within fourteen days.
The wife filed submissions in support of an order for costs on 13 April, 2007 and the husband filed a response to those submissions on 7 April, 2007.
As the wife deposed in her trial affidavit, the husband refused to sign the share transfers and a registrar transferred the shares to her on a trust for sale on or about 28 March, 2007.
The husband conceded that on 14 May 2007 the wife offered to sell all properties by public auction and divide the net proceeds of sale on a 70/30 basis in her favour. In his affidavit he deposed that he did not remember that offer and had no further correspondence which could clarify it.
In the letter of offer the solicitors for the wife noted that no payments had been made by the husband on an overdraft which had a limit of $200,000 and currently stood at $212,000, and other loans were in substantial arrears.
On 11 January, 2008 the wife filed an interim application in which she sought that all real property owned by the parties be sold, save the former matrimonial home and that the proceeds be used to discharge all liabilities encumbering the properties and the balance, after setting aside for capital gains tax, be held in trust in an interest bearing account in the names of the parties pending the final hearing or agreement. The application was listed for hearing on 11 February, 2008. Prior to that date the parties' competing applications for final parenting and financial orders were listed for the first day of a trial under the less adversarial procedures. As set out in a judgment delivered on 23 January, 2008, the applications were adjourned part heard, to allow the husband to file further material. By 1:00 pm. on 30 January, 2008 he was to file and serve a form 2A response to the wife's application of 11 January, 2008, an affidavit in support of it and an affidavit setting out the facts which, he submitted, constituted a change in circumstances and necessitated re-litigation of parenting issues. The costs of that day were reserved.
The husband filed a form 2A response on 30 January, 2008.
The wife's application for interim orders was determined by me on 31 January, 2008 and the orders sought by her were made. Orders were made providing for the valuation of the husband's business and a number of other orders directed to obtaining evidence necessary for the trial, which was fixed for 5 December, 2008. The case was listed for further directions on 7 August, 2008, to ensure its readiness for trial. The costs of 23 January, 2008 and 31 January, 2008, and the costs of the financial applications determined on 31 January, 2008, were reserved.
On 31 January, 2008 final parenting orders were made, by consent.
In the judgment delivered on 31 January, 2008 I noted that the orders the husband then sought could not, on his own evidence, achieve the desired end; in particular, on his own figures the sales he proposed would not release enough money to touch the mortgage over the former matrimonial home. By this time NAB had issued writs in the Supreme Court to repossess real property, as a result of mortgage defaults.
As noted in the judgment of 31 January, 2008, the aide memoire prepared by the husband's counsel showed a potential short-fall in dealing with the debt which he sought to have retired. His evidence was inconsistent as to whether real properties had increased or decreased in value since earlier valuations and the court found that, on the husband's own evidence, it was hard to see how he was keeping afloat.
As the wife deposed in her trial affidavit, her solicitors had written to the husband's solicitors on 3 December, 2007 requesting that all the real properties, save the matrimonial home, be placed on the market and the proceeds used to discharge debt and make provision for capital gains tax. Her solicitors advised that if a response was not received by 7 December, 2007, an application would be made to the court for the sales. The husband did not respond to that request and the orders made on 31 January, 2008 were in the exact terms sought by her.
The husband's evidence was that the continuing litigation (and financial imposts) significantly reduced any offer he could realistically make to the wife but that he offered $1 million to the wife on around 13 March 2008, an offer which was rejected by her on 20 March 2008. The letter he relied on in support of that offer is a letter addressed to counsel who was to appear for him. In an email dated 20 March 2008 counsel retained for the wife advised counsel for the husband that the offer was rejected and she relied on the orders of 31 January, 2008 requiring the various properties to be sold.
When the case was listed for mention on 7 August, 2008 the husband was ordered to file and serve an amended application by 12 September, 2008, to which the wife was to respond by 26 September, 2008. Each was to file and serve an updated statement of financial circumstances by 10 October, 2008 and all trial affidavits were to be filed by 24 November, 2008. Orders were made for an updated valuation of the former matrimonial home and for the valuation of a number of vehicles in the husband's possession, the costs of those valuations to be borne initially by the husband and finally determined by the trial judge.
On 12 September, 2008 the wife filed another application for interim orders, seeking that she have the conduct of the proposed sale of one of the properties ordered on 31 January, 2008, that the husband sign the contract of sale within 48 hours and in default of compliance, a registrar be authorised to sign it. She sought costs on an indemnity basis. The application came before Watts J on 25 September, 2008 and the wife obtained the orders sought by her. The husband had filed no response to her application. Watts J made no orders as to costs.
As deposed by the wife in her trial affidavit, her solicitors had written to the husband's solicitors seeking the property in question be sold to the proposed buyer. On 10 September, 2008 the husband formally advised he was not prepared to agree to that sale, despite the orders of 31 January, 2008.
The husband refused to sign the documents to effect the sale ordered by Watts J and a registrar had to sign them all.
As previously noted, when the trial was listed before me on 15 December, 2008 the husband had complied with none of the directions made on 7 August, 2008. He was given a last opportunity to file some material, which he did. Its inadequacy is referred to in the judgment of 5 February, 2009.
It is apparent from the various documents relied on by the husband that prior to the filing of proceedings on 29 September, 2006 there had been a mediation and a number of offers were exchanged. Nothing in the evidence suggests that at that time the value of the husband's business or work in progress was agreed and the husband thereafter refused to comply with a number of orders aimed at full financial disclosure. From a point early in the litigation the wife had to enforce financial orders against the husband. For example, orders made by the Senior Registrar on 19 March 2007 required the husband to comply with orders of 7 December 2006 and, in fault of compliance, he was to transfer shares to the wife on a trust for sale to meet his obligations. On 30 March 2007 the Senior Registrar delivered a judgment in a contested spousal maintenance application, ordered the husband to pay $400 per week by way of spousal maintenance and that if he failed to comply, the wife to be at liberty to use funds from the sale of the shares. As the husband failed to meet the obligations pursuant to the orders of 7 December 2006 or 30 March 2007, parcels of shares were sold and by June 2008 the whole of the amount in trust had been used for those purposes.
As found in the judgment of 5 February 2009, on 20 November 2007 the wife was served with two writs from NAB seeking to take possession of the former matrimonial home and another property as a result of mortgage defaults and while she struggled to deal with creditors, the husband went on a holiday to France with his new partner and her family.
There is an expectation that parties to litigation make serious attempts to settle it rather than engage upon a "war of attrition"; Robinson v Higginbottham[1991] FamCA 4; (1991) FLC 92-209. However, a party to litigation cannot simply refuse to make the financial disclosure required by the Family Law Rules 2004 (Cth) and expect the other party to assess offers made by him or her in a vacuum. Further, it is reasonable for a party to whom an offer has been made to consider the likelihood of an order in the proposed terms being complied with. Once the litigation commenced in this court, the husband's failure to comply with orders and the wife's need to take steps to implement default clauses or have documents signed on his behalf by a registrar, would have made any rational litigant sceptical of the reliability of offers made by him. This would have been exacerbated by judicial findings of inconsistent and sometimes contradictory evidence. The husband maintained his position that he did not have the capacity to meet various court ordered obligations and proposed borrowing money to fund settlement offers. The wife might reasonably have been sceptical of the husband's capacity to fulfil offers made prior to the filing of proceedings, given the hostile relationship between them, their swiftly deteriorating financial position and his lack of candour about financial matters.
(g) such other matters as the court considers relevant
Insofar as the submissions for the wife referred to some aspects of the applications for parenting orders, I do not place weight on them. What is in issue before me is the question of costs of the applications for final and interim property and spousal maintenance orders, including reserved costs.
In Pennisi v Pennisi(1997) FLC 92-774 the Full Court confirmed that the fact an offer just exceeds the award is no bar to an award for costs and stressed that it is not the law that an offer of greater or equivalent value to that which results from the court will lead to an order for costs in favour of the offeror, adding, at 84,547, that the plain words of s.117(2A)(f) :