FEDERAL CIRCUIT COURT OF AUSTRALIA
| CANDLIN & CANDLIN | [2017] FCCA 2211 |
| Catchwords: EVIDENCE – Parties had agreed to joint valuation – valuation incomplete by reason of failure to value three parcels of land comprised in titles to the property – valuer instructed by husband not to value water rights – inference that evidence as to value of additional land and water rights would not have assisted husband in opposing application for interim relief. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.72, 74, 77, 79, 80, 117 Matrimonial Causes Act 1959 (Cth), s.125 |
| Cases cited: Anthony Horden & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Bing v Bing (2007) FamCA 418 Breen v Breen (1990) 65 ALJR 195 Celestin v Celestin [2007] FamCA 74 Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 Elton & Batey-Elton [2008] FamCAFC 175 Farnell v Farnell (1996) FLC 92-681 Flynn v Flynn [1972] 2 NSWLR 303 Hall v Hall (2016) 257 CLR 490 Harris v Harris (1993) FLC 92-378 Hogan v Hogan (1986) FLC 91-704 Iphostrou v Iphostrou [2011] FamCA 20 In the Marriage of Wilson (1989) FLC 92-033 Klein v Domus Pty Ltd (1963) 109 CLR 467 Kyriakos v Kyriakos [2013] FamCAFC 22 Magna Alloys & Research Pty Ltd v Coffey [1981] VR 23 Medlow & Medlow (2016) FLC 93-692 MIMIA v Nystrom (2006) 228 CLR 566 Murkin & Murkin (1980) FLC 90-806 Re JJT; Ex parte Victorian Legal Aid (1998) 195 CLR 184 Seitzinger & Seitzinger [2014] FamCAFC 244 Selena & Montez [2017] FamFC 583; FLC 91-704 Stanford & Stanford (2012) 247 CLR 108 Strahan v Strahan (2011) FamCA 49 Sully v Sully [2016] FamCA 706 Wilson v Wilson (1989) FLC 92-033 Zschokke v Zschokke (1996) FamCA 79; FLC 92-692 |
Texts cited:
Pearce and Geddes, Statutory Interpretation in Australia 8th Ed (2014)
| Applicant: | MS CANDLIN |
| Respondent: | MR CANDLIN |
| File Number: | MLC 1637 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 1 September 2017 |
| Date of Last Submission: | 1 September 2017 |
| Delivered at: | Melbourne |
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- AGLC
- CANDLIN & CANDLIN [2017] FCCA 2211
- Case
- [2017] FCCA 2211
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it possessed the power to make orders in respect of litigation funding under the *Family Law Act 1975*, specifically in relation to spousal maintenance, property, or costs. It was also necessary to identify the specific head of power upon which any such determination would be based, and to consider the discretionary factors relevant to granting interim relief. The court also had to address issues arising from an incomplete joint valuation of property, where the husband had instructed the valuer not to assess water rights, leading to an inference that such evidence would not have assisted his opposition to the wife's application.
The court reasoned that it had the power to grant interim relief by way of property orders, and applied discretionary considerations in doing so. The husband was ordered to pay the wife $1,000 per week by way of financial support until further order, commencing on 5 July 2017. Additionally, the husband was ordered to pay $100,000 towards the wife's legal costs and disbursements by 18 October 2017, with the ultimate characterisation of this payment reserved for the trial judge. The court also directed the husband to facilitate the valuation of a specific property, including water rights, and vacated a previous order concerning the content of submission outlines, instead directing the parties to confer on a template. The parties were then ordered to file and exchange their outlines of submissions, including a minute of proposed final orders, by 10 November 2017. The costs of the application were reserved.
Orders
Orders of the court
1.
Until further order, the husband pay to the wife by way of financial support, the sum of $1,000 per week commencing on 5 July 2017.
2.
By 4:00pm on Wednesday, 18 October 2017, the husband pay or cause to be paid to the lawyers for the wife, Kennedy Partners, the sum of $100,000 to be applied towards the wife's outstanding and anticipated legal costs and disbursements.
3.
The ultimate characterisation of the payment pursuant to paragraph (2) above is reserved to the trial judge.
4.
By consent, the husband do all such acts and things as may be necessary to facilitate the valuation of the property situate at and known as Property A, in the State of Victoria (including the water rights thereon), by Mr J of (omitted) Real Estate or such other expert as may be engaged by the wife.
5.
Paragraph 6 of the orders made by consent on 9 June 2016 is vacated and in lieu thereof, the parties are directed to confer within 14 days hereof as to the content of a template for their outline of submissions that are to be filed in advance of the final hearing.
6.
The parties file and exchange their outline of submissions (of no more than 15 pages), no later than 4:00pm on Friday, 10 November 2017.
7.
The parties annex to their outline of submissions a minute of the order that they propose be made upon the final hearing of this proceeding.
8.
The costs of and incidental to this application are reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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