Legal Research
Cases
BRIVIO & BRIVIO

BRIVIO & BRIVIO

Case [2019] FamCA 151 18 March 2019

Type to search within this case.

FAMILY COURT OF AUSTRALIA

BRIVIO & BRIVIO

[2019] FamCA 151

FAMILY LAW – COSTS – Where application by husband for interim costs order – Where discussion of applicable principles – Where order for interim costs in sum of $50,000.00 made.

FAMILY LAW – SPOUSAL MAINTENANCE – Where application by husband for interim spousal support – Where consideration of applicable principles – Where Court not satisfied that husband unable to support himself adequately – Where application dismissed.

FAMILY LAW – ADULT CHILD MAINTENANCE – Where application by husband for adult child maintenance – Where at final hearing child now living with wife – Where application dismissed.

FAMILY LAW – INJUNCTIVE RELIEF – Where interim application by husband for injunctions restraining wife from dissipation of her assets – Where only basis for application was husband’s “concern” – Where consideration of applicable principles – Where application dismissed.

FAMILY LAW – CHILD SUPPORT DEPARTURE – Where application by husband for child support departure – Consideration of the purposes of the statutory child support – Where consideration of section 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth) – Where application dismissed.

Family Law Act 1975 (Cth) ss 66L, 72, 74, 75(2), 114, 117, 118
Child Support (Assessment) Act 1989 (Cth) ss 4, 116

Bagala & Bagala [2009] FMCAfam 953
Beklar & Beklar [2012] FamCA 894
Bevan & Bevan (1995) FLC 92-600
Collins and Collins [1985] FamCA 15; (1985) FLC 91-603
Gyselman (1992) FLC ¶92-279
Harris & Ellis [2011] FamCAFC 90
Penfold v Penfold (1980) FLC 98-800
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Sheahan (1993) FLC ¶92-375
Waugh & Waugh [2000] FamCA 1183

APPLICANT:

Mr Brivio

RESPONDENT:

Mr Brivio

FILE NUMBER:

PAC

2925

2018

DATE DELIVERED:

18 March 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17 September 2018 and 19 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Scarf Family Law

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

E & A Lawyers

Orders

That within 14 days from this date the wife pay to the husband, or as he may otherwise direct in writing, the sum of $50,000.00 by way of interim costs with the ultimate characterisation of such sum reserved to final hearing.
That, otherwise, the husband’s applications for interim spousal maintenance, adult child maintenance, injunctive relief and child support departure be dismissed.

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 Brivio & Brivio 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…

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 BRIVIO & BRIVIO

Details

AGLC: BRIVIO & BRIVIO [2019] FamCA 151
Case: [2019] FamCA 151
Decision Date: 18 March 2019

CaseChat Overview and Summary

In the matter of *Brivio & Brivio*, Foster J of the Family Court of Australia considered applications made by the husband concerning interim costs, spousal maintenance, adult child maintenance, injunctive relief, and child support departure. The wife sought to have these applications dismissed.

The court was required to determine whether to grant the husband interim spousal maintenance, adult child maintenance, and injunctive relief restraining the wife from dissipating her assets. It also had to consider the husband's application for a child support departure. Furthermore, the court was asked to determine the appropriate interim costs order.

Foster J dismissed the husband's applications for interim spousal maintenance, adult child maintenance, injunctive relief, and child support departure. In relation to spousal maintenance, the court was not satisfied that the husband was unable to support himself adequately. The application for injunctive relief was dismissed as the husband's sole basis was a general "concern" without sufficient evidence. The applications for adult child maintenance and child support departure were also dismissed, with the latter considering the purposes of the *Child Support (Assessment) Act 1989* (Cth) and section 116(1)(b).

However, the court made an order for interim costs in favour of the husband, directing the wife to pay the sum of $50,000.00 within 14 days. The ultimate characterisation of this costs sum was reserved to the final hearing.

Orders

Orders of the court

That within 14 days from this date the wife pay to the husband, or as he may otherwise direct in writing, the sum of $50,000.00 by way of interim costs with the ultimate characterisation of such sum reserved to final hearing.

That, otherwise, the husband’s applications for interim spousal maintenance, adult child maintenance, injunctive relief and child support departure be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

BRIVIO & BRIVIO [2019] FamCA 151

Cases Citing This Decision

No citing cases yet.

Cases Cited

BEKLAR & BEKLAR [2012] FamCA 894
Citation 1 (Para 4)

…As summarised by Ryan J in Beklar & Beklar [2012] FamCA 894: [31]In relation to future legal expenses, whether pursuant to s 74 or s 117(2), in Strahan & Strahan [2011] FamCAFC 126; (2011) FLC 93-466 per Boland and O’Ryan JJ at [96] the Full Court referred with approval to remarks made by Brereton J in Paris King I…
Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126
Citation 2 (Para 4)

…d by Ryan J in Beklar & Beklar [2012] FamCA 894: [31]In relation to future legal expenses, whether pursuant to s 74 or s 117(2), in Strahan & Strahan [2011] FamCAFC 126; (2011) FLC 93-466 per Boland and O’Ryan JJ at [96] the Full Court referred with approval to remarks made by Brereton J in Paris King Investments Pty…
Harris & Ellis [2011] FamCAFC 90
Citation 3 (Para 1)

…As the Full Court said in Harris and Ellis [2011] FamCAFC 90: 20.There are two ways to seek a departure from an administrative assessment of child support under the Child Support (Assessment) Act 1989 (Cth) (“the Act”). The Child Support Registrar can make a departure determination under Part 6A (on the application…
Bagala & Bagala [2009] FMCAfam 953
Citation 4 (Para 4)

…As was observed by Riethmuller FM (as he then was) in Bagala & Bagala [2009] FMCAfam 953: 20.Section 4(2)(c) of the Act seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised. There have been…
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Citation 5 (Para 4)

…66 per Boland and O’Ryan JJ at [96] the Full Court referred with approval to remarks made by Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 as follows: ... in addition to the three matters described in Zschokke , where the order was made pursuant to either s 74 or s 117 of the Act: · an app…
Waugh & Waugh [2000] FamCA 1183
Citation 6 (Para 2)

…The applicable law is found in s 114 of the Act, and the Full Court decisions in Waugh & Waugh [2000] FamCA 1183. The Full Court of the Family Court identified "the fundamental question" as being "whether there was any evidence of an intention ... to dispose of any assets pursuant to any scheme to defeat any judgmen…
Redman & Redman [1987] FamCA 2
Citation 7 (Para 3)

…In Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) said: As Nygh J said in Ashton , the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called per…
Penfold v Penfold [1980] HCA 4
Citation 8 (Para 2)

…Section 117(2) requires a finding of justifying circumstances as an essential prerequisite to the making of an order for costs ( Penfold v Penfold (1980) FLC 98-800).…
Williamson and Williamson [1978] FAMCA 57
Citation 9 (Para 3)

…the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not s…
Collins &Collins [1985] FAMCA 15
Citation 10 (Para 1)

…In Collins &Collins [1985] FamCA 15; (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.…
[1995] FAMCA 103 [1995] FAMCA 103
Citation 11 (Para 4)

…basis: Columb and Columb (unreported, Family Court of Australia, Fogarty J, 27 November 1987); see however Coomes and Coomes [1995] FamCA 103; (1995) FLC 92-558 per Cohen J; · an order may “make a provision for litigation expenses at a rate that appears reasonable in all the circumstances”; · an order can be made “…
Zschokke & Zschokke [1996] FAMCA 79
Citation 12 (Para 4)

…issue of costs”: Breen . [32]Reference to the three matters referred to in Zschokke and Zschokke [1996] FamCA 79; (1996) FLC 92-693, is to: · a position of relative financial strength on the part of the respondent; · a capacity on the part of the respondent to meet his or her own litigation costs; · an inability o…

Legislation Cited

Family Law Act 1975 (Cth) 114, 117, 118, 66L, 72, 74, 75(2)
8 mentions (from Para 1)
Child Support (Assessment) Act 1989 (Cth) 116, 4
3 mentions (from Para 1)
Child Support (Registration and Collection) Act 1988 (Cth) 89
1 mention (from Para 1)
Family Law Rules 2004 (Cth)
1 mention