Closs & Closs - [2023] FedCFamC2F 556

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Closs & Closs [2023] FedCFamC2F 556

File number(s): ADC 5592 of 2019

Judgment of: JUDGE MCGINN

Date of judgment: 12 May 2023

Catchwords: FAMILY LAW – litigation funding – interim property settlement application – trial preparation and trial expenses – detail of claimed costs – sufficiency – application granted in part

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Rules 2021

Cases cited:
Kramer & Kramer [2023] FedCFamC2F 221

Stanford v Stanford (2012) FLC 93-518

Strahan & Strahan (Interim Property Order)[2009] FamCAFC 166

Wilson & Wilson (1989)FLC 92-033

Zschokke and Zschokke (1996) FLC 92-693

Division: Division 2 Family Law

Number of paragraphs: 89

Date of hearing: 8 May 2023

Place: Adelaide

Counsel for the Applicant: Mr Tredrea

Solicitor for the Applicant: Jordan & Fowler Family Lawyers

Counsel for the Respondent: Mr Richards

Solicitor for the Respondent: Clelands Lawyers Adelaide Pty Ltd

Solicitor for the Independent Children's Lawyer: Ms O’Brien, Legal Services Commission of South Australia
ORDERS

ADC 5592 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CLOSS

Applicant

AND:
MR CLOSS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MCGINN

DATE OF ORDER:

12 May 2023

IT IS ORDERED:
1.That by way of partial property settlement pursuant to s 79 of the Family Law Act (Cth) within 14 days the respondent husband do pay to the applicant wife’s solicitor’s trust account the sum of $50,000 to be applied for the purpose only of paying the applicant wife’s legal fees and disbursements of these proceedings.
2.That the wife’s Application in a Proceeding sealed 12 April 2023 and the husband’s Response to an Application in a Proceeding sealed 14 April 2023 do otherwise stand dismissed.
3.That there be no order as to costs in respect to the said Application in a Proceeding and the Response to an Application in a Proceeding.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Closs & Closs has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN
INTRODUCTION

Before the Court is the wife’s Application in a Proceeding filed on 17 March 2023.
By that Application in a Proceeding the wife seeks payment to her of the sum of $70,000 paid to her solicitor’s trust…

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 Closs & Closs

Details

AGLC: Closs & Closs [2023] FedCFamC2F 556
Case: [2023] FedCFamC2F 556
Decision Date

CaseChat Overview and Summary

In the matter of Closs and Closs, the wife applied for an interim property settlement order to cover the costs of litigation funding. The husband opposed the application and sought dismissal and costs. The Federal Circuit and Family Court of Australia (Division 2) was required to determine whether the wife's application should be granted and, if so, in what amount. The Court considered the wife's financial circumstances, the husband's financial resources, and the need for both parties to be represented at trial. The Court found that the wife's application was genuine, and it was just and equitable to make an interim property settlement order. The Court granted the wife's application in part, ordering the husband to pay $50,000 to the wife's solicitor's trust account to cover the wife's legal fees and disbursements. The wife's application for costs was dismissed, and no order was made as to costs in respect of the wife's and husband's respective applications.

Orders