CALHOUN & MERCIER - [2018] FamCA 846

FAMILY COURT OF AUSTRALIA

CALHOUN & MERCIER

[2018] FamCA 846

FAMILY LAW – PROPERTY – Interim – Application for an interim property distribution pursuant to s 90SM for future legal costs – Where this is not a “proper case in all the circumstances” to make an interim property distribution – Application dismissed.

FAMILY LAW – COSTS – Where the factors in s 117(2A) do not justify the making of a costs order – Application dismissed.

Family Law Act 1975 (Cth) ss 79, 90SM, 90SS, 117, 117(2A)

Harris & Harris (1993) FLC 92-378
Marchant & Marchant (2012) FLC 93-520
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466
Wenz v Archer (2008) 40 FamLR 212
Zschokke and Zschokke (1996) FLC 92‑693

APPLICANT:

Ms Calhoun

RESPONDENT:

Mr Mercier

FILE NUMBER:

SYC

3053

2018

DATE DELIVERED:

22 August 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

30 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Santo Family Lawyers

Orders

The applicant’s Amended Application in a Case filed 12 June 2018 is dismissed.
Any application for costs of the hearing is to be made in writing within 21 days of the date hereof, accompanied by any affidavit in support and a written submission of no longer than two A4 pages. Each party is to respond to any application for costs made by the other within seven days of service of such application and the response is to be accompanied by any affidavit in support together with written submissions of no longer than two A4 pages. Any application for costs or response made to same, is to be accompanied by a copy of any offer of compromise made in relation to the applicant’s Amended Application in a Case determined by this order.
In the event of no application for costs being filed as required by order (2) hereof, then each party’s costs of the application are reserved to be determined by the trial judge should an application be pressed.

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 Calhoun & Mercier 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 PARRAMATTA

FILE NUMBER: SYC 3053 of 2018

Ms Calhoun

Applicant

And

Mr Mercier

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an amended Application in a Case filed by Ms Calhoun (“the…

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 CALHOUN & MERCIER

Details

AGLC: CALHOUN & MERCIER [2018] FamCA 846
Case: [2018] FamCA 846
Decision Date: 22 August 2018

CaseChat Overview and Summary

In *Calhoun & Mercier*, the applicant sought an interim property distribution under s 90SM of the *Family Law Act 1975* (Cth) to cover future legal costs. The respondent opposed this application. The matter came before Le Poer Trench J.

The primary legal issue before the court was whether the circumstances warranted making an interim property distribution for the purpose of funding future legal costs. A secondary issue concerned whether the factors outlined in s 117(2A) of the *Family Law Act 1975* (Cth) justified making an order for costs in favour of either party.

Le Poer Trench J determined that the case was not a "proper case in all the circumstances" to make an interim property distribution under s 90SM for legal costs. The court found that the factors listed in s 117(2A) did not justify making a costs order. Consequently, the applicant's Amended Application in a Case was dismissed. The court then set out a detailed procedure for any subsequent applications for costs, including time limits for filing, supporting affidavits, written submissions, and the requirement to include any offers of compromise. If no application for costs was filed, the costs of the application were to be reserved for determination by the trial judge.

Orders

Orders of the court

The applicant’s Amended Application in a Case filed 12 June 2018 is dismissed.

Any application for costs of the hearing is to be made in writing within 21 days of the date hereof, accompanied by any affidavit in support and a written submission of no longer than two A4 pages. Each party is to respond to any application for costs made by the other within seven days of service of such application and the response is to be accompanied by any affidavit in support together with written submissions of no longer than two A4 pages. Any application for costs or response made to same, is to be accompanied by a copy of any offer of compromise made in relation to the applicant’s Amended Application in a Case determined by this order.

In the event of no application for costs being filed as required by order (2) hereof, then each party’s costs of the application are reserved to be determined by the trial judge should an application be pressed.

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.