Batey-Elton and Elton (No 4)

[2010] FamCA 394

FAMILY COURT OF AUSTRALIA

BATEY-ELTON & ELTON (NO. 4) [2010] FamCA 394

FAMILY LAW – PROPERTY – Litigation funding – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Batey-Elton

RESPONDENT: Mr Elton

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 28 April 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cronin J

HEARING DATE: 28 April 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr G. Page SC

SOLICITOR FOR THE RESPONDENT: Rod Madsen

Orders

1. The application made this day is dismissed. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVF 2250 of 2004

MS BATEY-ELTON

Applicant

And

MR ELTON

Respondent

REASONS FOR JUDGMENT

1. This morning at 10 o’clock, the wife made an oral application seeking an order that the husband pay to her $80,000 by way of litigation funding.  Those were not the words she initially used, but after some discussion it became clear that is what she sought.

2. In support of her oral application, she filed an affidavit which set out a variety of things.  Much of it regurgitated things that happened yesterday.  Some of it is critical of the way in which the case is being conducted and, no doubt, critical of me in the sense that she said that the way I was conducting the matter would lead to a suggestion that I am biased against her.  I reject all of those things. 

3. There is a comprehensive document which is connected to that affidavit.  The document refers to a number of cases.  I have read all of those cases and many of them I am familiar with.  We have had considerable discussion this morning about those cases.  None of them assists the wife.

4. The gravamen of the reasoning why I cannot make the order is that the source of the money she would pursue for litigation funding is money that she says she was entitled to pursuant to the orders of this court in September 2004.  I have had the considerable assistance this morning of Mr Rogers, who appears on behalf of the wife’s trustee in bankruptcy to indicate that any money that might be sought by the wife is not her money;  it actually belongs to the trustee in bankruptcy.  Any money that was ordered to be paid to her would therefore be money belonging to the trustee.  In those circumstances there is no basis to make the order which she seeks. 

5. I also wish to add at this stage that the documents that I have been given have indicated a very comprehensive analysis overnight of the law relating to section 79A, although the application this morning related to litigation funding.  There are terms used in not only the research document, but also in the affidavit, which clearly indicates that a lot of work has been done by somebody who has legal training, and to that extent, some of the words of the wife about not having legal assistance are of little value. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  20 May 2010