Conti and Conti - [2011] FamCA 451

FAMILY COURT OF AUSTRALIA

CONTI & CONTI

[2011] FamCA 451

FAMILY LAW – PROPERTY – Personal injuries award likely for wife – Small pool – Treatment of award – Moneys to be held in trust until further order

Family Law Act 1975 (Cth) s 79, 114(1), 114(3)
Child Support (Assessment) Act 1989 (Cth)

Australian Broadcasting Corporation & O’ Neill (2006) 227 CLR 57
Aleksovski & Aleksovski (1996) FLC 92-705
Cardisle Ltd v LED Builders Ltd (1999) 198 CLR 380
Farmer & Bramley (2000) FLC 93-060
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Keenahan & Keenahan [2004] FamCA 360
LAM & RAM (2005) FamCA 868
Mullen & De Bry (2006) FLC 93-293
Sippel & Sippel [2004] FamCA 201
Waugh & Waugh (2000) FLC 93-052
Williams & Williams (1995) 61 ALR 215
Zorbas & Zorbas (1990) FLC 92-160

APPLICANT:

Mr Conti

RESPONDENT:

Ms Conti

FILE NUMBER:

BRC

436

2009

DATE DELIVERED:

10 June 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

10 June 2011

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Mr Carmont

Orders

UPON THE HUSBAND GIVING THE USUAL UNDERTAKING AS TO DAMAGES

IT IS ORDERED UNTIL FURTHER ORDER

Any amount which the wife may be awarded or which may be agreed in relation to personal injuries suffered by her in a motor vehicle accident on 13 June 2008, net of any fees costs and charges of her personal injury lawyers, be held in the trust account of McCowan Solicitors Surfers Paradise.

AND IT IS FURTHER ORDERED

The costs of the husband’s application in a case filed 16 May 2011 are reserved to the trial Judge.

IT IS NOTED that publication of this judgment under the pseudonym Conti & Conti is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 436 of 2009

Mr Conti

Applicant

And

Ms Conti

Respondent

REASONS FOR JUDGMENT

The parties have on foot s 79 property proceedings in respect of which the husband, in addition to seeking a s 79 property order, seeks in essence a child support departure order that the wife pay to him $200 per week in total for the three children of the marriage who are now 18, 15 and 13 until such time as they have finished university or are no longer living with him, whichever comes first, to be capitalised as a lump sum.
The wife has a claim for damages for injuries suffered in a motor vehicle accident on 13 June 2008.
The parties’ relationship and marriage extended from about 1990 or 1991 until September 2008.
It is plain then that the injury which she suffered was towards the end of the relationship and marriage of some 18 or so years.
The wife’s lawyers expect that her claim will be settled for about $15,000.
The initiating application and response, together with information from the Bar table, show that excluding any such award the pool (not yet agreed)…

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 Conti and Conti

Details

AGLC: Conti and Conti [2011] FamCA 451
Case: [2011] FamCA 451
Decision Date: 10 June 2011

CaseChat Overview and Summary

In the matter of *Conti and Conti*, heard before O'Reilly J, the dispute concerned interim orders sought by the husband in proceedings filed on 16 May 2011. The wife had suffered personal injuries in a motor vehicle accident on 13 June 2008.

The primary legal issue before the court was whether to make an order for the wife's personal injury proceeds to be held in trust. The court was also required to determine the disposition of the costs associated with the husband's application.

O'Reilly J ordered that any amount awarded to or agreed upon by the wife in relation to her personal injuries, after deduction of legal fees and charges, be held in the trust account of McCowan Solicitors Surfers Paradise. This order was made upon the husband giving the usual undertaking as to damages. The costs of the husband's application were reserved to the trial judge.

Orders

Orders of the court

UPON THE HUSBAND GIVING THE USUAL UNDERTAKING AS TO DAMAGES

IT IS ORDERED UNTIL FURTHER ORDER

Any amount which the wife may be awarded or which may be agreed in relation to personal injuries suffered by her in a motor vehicle accident on 13 June 2008, net of any fees costs and charges of her personal injury lawyers, be held in the trust account of McCowan Solicitors Surfers Paradise.

AND IT IS FURTHER ORDERED

The costs of the husband’s application in a case filed 16 May 2011 are reserved to the trial Judge.

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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