BEKLAR & BEKLAR - [2012] FamCA 894

FAMILY COURT OF AUSTRALIA

BEKLAR & BEKLAR

[2012] FamCA 894

FAMILY LAW – INTERIM COSTS – Where interim costs order sought by Applicant or in the alternative payment by way of interim property settlement – Where Respondent opposed the Applicant’s application and in addition sought sale of property by way of partial property settlement – Where Applicant’s application upheld but for a lesser sum in the event the Applicant does not comply with certain requirements – Where Respondent’s application for sale of property dismissed as it would be both premature and unjust to order the sale ahead of the final hearing scheduled to take place in a matter of weeks.

Family Law Act 1975 (Cth): ss 117(1); 117(2); 117AA; 118; 117(2A); 74; 80(1)(h); 79; 75(2); 79A.

Gabel v Yardley (2008) FLC 93-386
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Penfold v Penfold (1980) FLC 98-800
Strahan & Strahan (2011) FLC 93-466
Zschokke and Zschokke (1996) FLC 92-693

APPLICANT:

Ms Beklar

RESPONDENT:

Mr Beklar

FILE NUMBER:

SYC

3556

2008

DATE DELIVERED:

30 October 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

By way of written submissions

JUDGMENT OF:

Ryan J

HEARING DATE:

By way of written submissions received by the legal representatives for both parties on 12 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Paul & Paul Lawyers

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

That the husband pay to the wife interim costs as follows:
(a)Ninety thousand dollars ($90,000.00), in the event that the wife provides proof that subsequent to 30 August 2012 she has paid $11,500.00 towards outstanding legal expenses referred to at paragraph 53 of her Financial Statement filed 30 August 2012, payable as follows:
(i)five thousand dollars ($5,000.00) within seven (7) days of the date of these orders;
(ii)five thousand dollars ($5,000.00) following the wife’s attendance upon Dr M (on 17 October 2012);
(iii)twenty five thousand dollars ($25,000.00) by 14 November 2012;
(iv)the balance on 30 November 2012, upon written confirmation that the wife has filed all evidence upon which she relies and is ready to proceed with the final hearing..
In the event that the wife does not comply with Order 1(a) the amount payable by the husband is reduced to $80,000.00.
To facilitate the payments in Order 1 above, the husband will deposit the amounts due in the trust account of Barkus Doolan Kelly and it is directed that the husband’s solicitors certify to the wife’s solicitors seven (7) days prior to payment, that such funds are held.
Excluding any other application for costs, the wife’s Application in a Case filed 30 August 2012 and the husband’s Response to an Application in a Case filed 21 September 2012 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beklar & Beklar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3556 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BEKLAR & BEKLAR [2012] FamCA 894
Case: [2012] FamCA 894
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Beklar (the wife) sought an order for interim costs of $90,000 from Mr Beklar (the husband), or alternatively, payment by way of interim property settlement. The husband opposed the wife's application and sought the sale of a property known as the Suburb T property as a partial property settlement. The final hearing for the property settlement, spousal maintenance, and parenting proceedings was scheduled to commence in a matter of weeks.

The court was required to determine whether to grant the wife's application for interim costs, and if so, in what amount. Additionally, the court had to consider the husband's application for the sale of the Suburb T property as a partial property settlement. The central legal issues revolved around the court's discretion to award costs on an interim basis, the relevant factors to be considered under sections 117 and 74 of the *Family Law Act 1975* (Cth), and whether the husband had the financial capacity to meet the wife's claim. The court also had to assess the appropriateness of ordering the sale of a significant asset prior to the final determination of the property settlement.

The court applied the principles governing interim costs orders, noting that a prerequisite for such an order is the existence of justifying circumstances, such as a disparity in financial strength and the inability of one party to meet their own legal expenses. The court considered the wife's financial position, her legal expenses to date, and her projected future legal costs, alongside the husband's significantly greater financial capacity. The court found that the husband's financial circumstances, particularly in light of conflicting evidence regarding his income, suggested he had the capacity to contribute to the wife's interim legal costs. The court also considered the wife's need to have her legal expenses met to ensure she could be adequately represented at the final hearing, which was deemed to be in the interests of justice. The husband's application for the sale of the Suburb T property was dismissed as premature and potentially unjust given the proximity of the final hearing.

The court ordered that the husband pay the wife $90,000 by way of interim costs, conditional upon the wife providing proof of payment of $15,000 towards outstanding legal expenses from her savings. The payment was to be made in instalments, with the husband to deposit the funds into his solicitors' trust account. In the event the wife did not comply with the condition regarding proof of payment, the amount payable by the husband was reduced to $80,000. The wife's application in a case filed on 30 August 2012 and the husband's response filed on 21 September 2012 were dismissed, excluding any other application for costs.

Orders