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Bodilly & Hand (No. 2)

Bodilly & Hand (No. 2)

Case [2012] FamCA 734 27 August 2012

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FAMILY COURT OF AUSTRALIA

BODILLY & HAND (NO. 2)

[2012] FamCA 734

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks an increase in maintenance – Where the wife’s heath has significantly deteriorated – Where the husband conceded he has the capacity to pay the maintenance sought by the wife – Extent of the needs of the wife – Where the wife has established that her circumstances have changed to the extent that would justify an increase

FAMILY LAW – COSTS – Where the wife seeks an order that the husband pay her costs on a solicitor client basis – Where the husband opposes a costs order – Where neither party was wholly unsuccessful – Where there were no written offers of settlement – Where the financial disparity between the parties and the husband’s conduct in the proceedings justify an award being made – Where the wife should be left with some obligation for costs.

Family Law Act 1975 (Cth) Sections 72, 74, 75, 80, 83 & 117
Family Law Rules 2004 – Rule 19.18

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175;
McGregor & McGregor [2012] FamCAFC 69;

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705;
BK & SK [2005] FamCA 1222;
Stephens & Stephens and Anor (Enforcement) (Costs) [2010] FamCAFC 172;
Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225;
In the Marriage of Kohan (1992) 16 Fam LR 245;
Pencious & Pencious [2012] FamCA 12.

APPLICANT:

Ms Bodilly

RESPONDENT:

Mr Hand

FILE NUMBER:

MLC

10737

2009

DATE DELIVERED:

27 August 2012

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Loughnan J

PLACE HEARD:

Parramatta

HEARING DATE:

6, 7 & 8 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE:	Mr St John SC with Ms Rivers
SOLICITOR FOR THE APPLICANT:	Tolhurst Druce & Emmerson Solicitors

COUNSEL FOR THE RESPONDENT HUSBAND:	Mr Ackman QC with Ms Hannan
SOLICITOR FOR THE RESPONDENT	Kenna Teasdale Lawyers

Orders

1.From the date of these orders to 24 September 2012 the husband shall pay to the wife as she may direct by way of periodic maintenance the weekly sum of $3,625.
2.From 25 September 2012 the rate of maintenance payable by the husband to the wife shall reduce to $3,323 per week.
3.Unless the wife advises the husband otherwise in writing, the first payment of periodic maintenance shall be made within 7 days and payments shall be made weekly thereafter.
4.The husband shall cause the sum paid by him pursuant to order 2 to be increased annually in accordance with any positive variation in the Consumer Price Index for Sydney published by the Australian Statistician for the preceding financial year with the first such variation as and from 1 July 2013 and adjustments as and from 1 July in each succeeding year.
5.Within 28 days the husband shall pay to the wife as she may direct the sum of $527,927.25, representing:
a)$76,784 by way…

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.

Continue reading Bodilly & Hand (No. 2)

Details

AGLC: Bodilly & Hand (No. 2) [2012] FamCA 734
Case: [2012] FamCA 734
Decision Date

CaseChat Overview and Summary

This case concerned an application by Ms Bodilly (the wife) for an increase in spousal maintenance from Mr Hand (the husband). The parties had been married for 15 years and separated in 1998. The wife had been diagnosed with multiple sclerosis prior to their marriage, and a property settlement and maintenance order had been made in 2000. The wife sought an increase in maintenance due to a significant deterioration in her health, which the husband conceded he had the capacity to pay. The primary dispute before the Family Court of Australia was the extent of the increased maintenance. The wife also sought an order for her costs on a solicitor-client basis.

The court was required to determine the extent to which the wife's circumstances had changed to justify an increase in spousal maintenance, considering her needs and the husband's capacity to pay. Additionally, the court had to consider whether an award of costs on a solicitor-client basis was warranted, taking into account the conduct of the proceedings and the financial disparity between the parties, while also acknowledging that neither party was wholly unsuccessful and no written settlement offers had been made.

The court found that the wife had established that her circumstances had changed sufficiently to justify an increase in maintenance. The husband conceded his capacity to meet the wife's requested maintenance. Regarding costs, the court determined that while neither party was entirely successful, the financial disparity and the husband's conduct in the proceedings justified an award of costs in favour of the wife. However, the court also noted that the wife should bear some responsibility for costs.

The husband was ordered to pay the wife periodic maintenance of $3,625 per week until 24 September 2012, reducing to $3,323 per week thereafter, with annual CPI adjustments from 1 July 2013. He was also ordered to pay a lump sum of $527,927.25 within 28 days, which included $76,784 in backdated periodic maintenance, $120,000 by way of lump sum maintenance, and $331,188.25 for assessed costs.

Orders