Armington and Armington & Ors

[2020] FamCA 750

FAMILY COURT OF AUSTRALIA

ARMINGTON & ARMINGTON AND ORS [2020] FamCA 750

FAMILY LAW – PROPERTY – interim – where the husband filed an application in a case seeking the discharge of an order made in 2019 requiring him to pay a contribution towards the wife’s legal costs on a dollar for dollar basis – where there is no evidence before the court as to justify a discharge of that order – order that the husband’s application be dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Armington

FIRST RESPONDENT: Mr Armington

SECOND RESPONDENT: Company A Pty Ltd (ACN …)

THIRD RESPONDENT: Company B Pty Ltd (ACN …)

FOURTH RESPONDENT: Company C Pty Ltd (ACN …)

FIFTH RESPONDENT: Company D2 Pty Ltd (Formerly Company D Pty Ltd (ACN …) (In Liquidation))

SIXTH RESPONDENT: Company E2 Pty Ltd (Formerly Company E Pty Ltd (In Liquidation))

SEVENTH RESPONDENT: Company K2 Pty Ltd (Formerly Company K Pty Ltd)

FILE NUMBER: MLC 1627 of 2016

DATE DELIVERED: 16 July 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 16 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mariole

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

THE FIRST RESPONDENT: In person

THE SECOND RESPONDENT: Mr V Armington

THE THIRD RESPONDENT: Mr V Armington

THE FOURTH RESPONDENT: Mr V Armington

SOLICITOR FOR THE FIFTH RESPONDENT: Ms Dunn, Madgwicks

SOLICITOR FOR THE SIXTH RESPONDENT: Ms Dunn, Madgwicks

THE SEVENTH RESPONDENT: Mr Armington

Orders

1. That the Application in a Case filed by the husband on 2 July 2020 be dismissed.

2. That the final hearing listed to commence on 27 July 2020 be vacated.

3. That all extant applications be listed for final hearing on a date to be fixed.

4. That the applicant wife’s and the fifth and sixth respondents’ costs of this day be reserved.

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  Armington & Armington 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1627 of 2016

Ms Armington

Applicant

And

Mr Armington

First Respondent

And

Company A Pty Ltd (ACN …)

Second Respondent

And

Company B Pty Ltd (ACN …)

Third Respondent

And

Company C Pty Ltd (ACN …)

Fourth Respondent

And

Company D2 Pty Ltd (Formerly Company D Pty Ltd (ACN …) (In Liquidation))

Fifth Respondent

And

Company E2 Pty Ltd (Formerly Company E Pty Ltd (In Liquidation))

Sixth Respondent

And

Company K2 Pty Ltd (Formerly Company K Pty Ltd)

Seventh Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today upon an Application in a Case filed by the husband, Mr Armington on 2 July 2020. 

2. That application raises two issues.  Firstly, the question of obtaining updated valuations in relation to the parties’ business interests, the husband’s position being that there has been a reduction in the value of those interests as a result of the impact of COVID-19.  Ultimately, events have overtaken that part of his application insofar as arrangements have been made to obtain an updated valuation. It is anticipated that that report will be available to the parties prior to its listed trial date on 27 July 2020.

3. The second aspect of the husband’s application relates to his desire for there to be a discharge of orders made by Judge Kirton in the Federal Circuit Court on 13 May 2019 relating to the requirement that the husband pay a contribution towards the wife’s legal costs on a dollar for dollar basis.  The application of the husband is supported by his affidavit filed 28 June 2020.  That affidavit contains only three paragraphs and does little more than restate the orders that the husband seeks.  He puts before the Court no evidence that would support the discharge of the orders of Judge Kirton. 

4. The wife’s position is that she opposes the discharge of that order.  Submissions were made to the effect that, at the time the order was made, the husband was self-represented and that throughout the proceedings he has been able to obtain funds from his parents as required by him.  During the course of his submissions, the husband confirmed that he has made an arrangement with his father to obtain up to $20,000 to engage counsel for the purposes of the final hearing. 

5. Submissions were also made to the effect that there was no evidence before the Court that would indicate there has been a reduction in the husband’s salary, which is in the order of some $300,000 per annum.  Further, submissions were made to the effect that the husband, as recently as January 2020, travelled to the United States of America with the children of the marriage. Counsel for the wife submitted that during that travel, the husband attended what might be described as “exclusive restaurants” and incurred significant costs at those venues.

6. The submission of the wife is that there is nothing before the Court that would indicate there has been any change in the husband’s circumstances such as to justify the discharge of the orders made by Judge Kirton. 

7. Mr V Armington, who appears on behalf of the second, third and fourth named respondents and is the father of the husband, indicated that he had contributed some $9,000 towards the husband’s travel to the United States and sought to justify that expenditure. 

8. What emerges from those submissions is that there is some capacity for the husband’s family to provide financial assistance to the husband, to enable him to pursue his interests, such as overseas travel with his children.  Mr V Armington also confirmed that he had agreed to provide funds to the husband to enable him to engage counsel for the final hearing. 

9. Ms Dunn, solicitor appearing on behalf of the fifth and sixth named respondents, neither opposes nor agrees to the orders sought by the husband.  In saying that, Ms Dunn acknowledges that it would be of benefit to all parties were the husband to have legal representation at the final hearing, as such representation would likely reduce the length of the trial.  I agree and accept that submission. 

10. The reality is that there is no evidence before the Court today from the husband that would support the discharge of the orders made by Judge Kirton in May of 2019.  There is no evidence as to his financial circumstances or any change in his financial circumstances that would otherwise justify a discharge of that order. 

11. As a result of concessions made by both the husband and Mr V Armington, it appears that arrangements have been made for the husband to have access to funds to assist him with representation at the final hearing. Given those circumstances, I am not minded to make any orders that would otherwise affect the operation of orders previously made. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 July 2020.

Associate: 

Date:  16 July 2020