Aitken & Murphy (No 2)

[2012] FamCA 239

FAMILY COURT OF AUSTRALIA

AITKEN & MURPHY (NO 2) [2012] FamCA 239

FAMILY LAW – PROPERTY - Interim property orders sought – De facto relationship – Priority payment of judgment debt of Victorian Supreme Court – Required discharge of Court Freezing Order – Payment of taxation debt assessed against Respondent, costs and interests payable thereon – Payment of past, present and future legal fees pending hearing – Assessment of financial circumstances of the parties as at commencement of de facto relationship and as at separation – Consideration of s 90SM and s 90SS(1)(h) – Strongly contested interim proceedings, no agreement on facts or contribution – Determination of when a Court should exercise or decline to exercise powers in interim property disputes – Preserving available property for a defended hearing including reversing the order if applicable – Justice and equity of interim property payments and the quantum thereof – Security for costs

Family Law Act1975 (Cth), ss 79, 90SF(3), 90SM(1), (3) and (4), 90SS(1)(a),(g), (h) and (i), 117(2A)(g)
Commonwealth Evidence Act 1995 (Cth), s 128

Brugman & Marley [2012] FamCA 106
Esdale & Schenk [2012] FamCA 111
Finazzi & Finazzi [2012] FamCA 102
Gabel v Yardley (2008) FLC 93-368
Paris King Investments Pty Ltd v Rayhill  [2006] NSWSC 578
Strahan v Strahan (2011) FLC 93-466
Wenz & Archer (2008) 40 FamLR 212
Zschokke v Zschokke (1996) FLC 92-693

APPLICANT: Mr Aitken

RESPONDENT: Mr Murphy

FILE NUMBER: MLC 11907 of 2010

DATE DELIVERED: 13 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 13 and 28 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: T J Mulvany & Co

ORDERS

IT IS ORDERED:

1. THAT the Application for interim property orders be dismissed.

2. THAT the question of the payment and quantum of legal costs incurred of and incidental to this hearing be reserved.

3. THAT the further hearing of the:

   (a)reserved costs issues;

   (b)obtaining valuations of real and personal property and of the Respondent’s business;

   (c)production of documents pursuant to the subpoena and related issues involving the Applicant’s former solicitors, Law Firm 1;

   be and are all hereby adjourned for a hearing upon the evidence filed, and further submissions from Counsel, on a date to be fixed before Young J.

   IT IS CERTIFIED

4. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the Applicant and Respondent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aitken & Murphy (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11907 of 2010

Mr Aitken

Applicant

And

Mr Murphy

Respondent

REASONS FOR JUDGMENT

ISSUE

1. In an interim property application under s 90SM of the Family Law Act 1975 (Cth) (“the Act”) the Applicant has sought a significant lump sum pursuant…