Catlin and Catlin - [2017] FamCA 818

FAMILY COURT OF AUSTRALIA

CATLIN & CATLIN

[2017] FamCA 818

FAMILY LAW – PROPERTY – Final orders – Spousal maintenance – Where wife seeks payment of spousal maintenance pursuant to a binding financial agreement – Where husband claims set offs – Consideration of whether there is a set off – Where partial set offs allowed in respect of the children’s health insurance and conveyancing costs – Where set offs not allowed in respect of a swimming pool fence and speculative audit fees – Where wife further claims monies in respect of outgoings relating to the former home paid by her – Where it is appropriate for the Court to enforce interest on spousal maintenance arrears – Where Court adjusts the amount of spousal maintenance payable to the wife – Where an order is made for the husband to pay spousal maintenance to the wife – Application upheld.

Child Support (Assessment) Act 1989 (Cth) ss 116, 123 Development Act 1993 (SA) s 71AA Family Law Act 1975 (Cth) ss 79, 81, 90DD, 90G, 90KA Family Law Rules 2004 (Cth) r 20.02
Barrington & Downton [2015] FamCA 426 Blair v Curran [1939] HCA 23 Hamilton Ice Arena Ltd v Perry Developments Ltd [2002] 1 NZLR 309 Hawesv Dean [2014] NSWCA 380 Henderson v Henderson [1843] EngR 917 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 Stelzer & Wallace [2017] FamCA 39 Yilmaz & Yilmaz [2014] FamCA 663

APPLICANT:

Ms Catlin

RESPONDENT:

Mr Catlin

FILE NUMBER:

ADC

748

2014

DATE DELIVERED:

13 October 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

21 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tinning of counsel

SOLICITOR FOR THE APPLICANT:

Tindall Gask Bentley

COUNSEL FOR THE RESPONDENT:

Mr Ower SC

SOLICITOR FOR THE RESPONDENT:

1878 Elix Lawyers

Orders

That the husband do pay to the wife within twenty eight (28) days the sum of EIGHTEEN THOUSAND SIX HUNDRED AND THIRTY DOLLARS AND SIXTY TWO CENTS ($18,630.62).
That the husband be restrained and an injunction granted restraining him from pursuing any litigation in respect of the cost of the pool fence erected by him in the sum of THIRTEEN THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS ($13,750).
That all proceedings do stand 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 Catlin & Catlin 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 ADELAIDE

FILE NUMBER: ADC 748 of 2014

Ms Catlin

Applicant

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 Catlin and Catlin

Details

AGLC: Catlin and Catlin [2017] FamCA 818
Case: [2017] FamCA 818
Decision Date: 13 October 2017

CaseChat Overview and Summary

In *Catlin and Catlin*, Berman J of the Family Court of Australia was required to determine the financial and injunctive orders to be made between the parties. The dispute concerned the division of property and the husband's pursuit of litigation regarding the cost of a pool fence.

The primary legal issues before the court were the appropriate quantum of a lump sum payment to be made by the husband to the wife, and whether an injunction should be granted to restrain the husband from further litigation concerning the pool fence. The court also had to consider the final disposition of all proceedings between the parties.

Berman J ordered the husband to pay the wife a sum of $18,630.62 within 28 days. Furthermore, the court granted an injunction restraining the husband from pursuing any litigation in relation to the cost of the pool fence, which he had claimed to be $13,750. All proceedings between the parties were dismissed.

Orders

Orders of the court

That the husband do pay to the wife within twenty eight (28) days the sum of EIGHTEEN THOUSAND SIX HUNDRED AND THIRTY DOLLARS AND SIXTY TWO CENTS ($18,630.62).

That the husband be restrained and an injunction granted restraining him from pursuing any litigation in respect of the cost of the pool fence erected by him in the sum of THIRTEEN THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS ($13,750).

That all proceedings do stand 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

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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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