De Silva & Ratnayake

[2021] FedCFamC1F 347

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

De Silva & Ratnayake [2021] FedCFamC1F 347 

File number(s):

SYC 6075 of 2021

Judgment of:

SCHONELL J

Date of judgment:

24 December 2021

Catchwords:

FAMILY LAW – INJUNCTIONS – Exclusion from matrimonial home – Where the wife seeks the sole use and occupation of the matrimonial home – Where the husband opposes the wife’s application and submits that the parties can co-exist under one roof – Consideration of the circumstances of the parties and whether an exclusive occupation order is necessary – No order for the exclusive use and occupation of the home made.

FAMILY LAW – FINANCIAL – Where the wife seeks an interim costs order – Where the parties executed a Binding Financial Agreement – Whether a clause in the Agreement addressing spousal maintenance was void pursuant to s 90E – Where it was found that the clause was not void.

FAMILY LAW – FINANCIAL – Where the wife seeks an interim costs order under s 117 – Where the wife seeks costs order for litigation funding – Consideration of the financial capacity of both parties – Where there is financial disparity between the parties – Where justice may be compromised if no order made – Costs order made.

Legislation:

Family Law Act 1975 (Cth) ss 74, 90E, 114, 117

Cases cited:

Ellerton & Jennings (2021) FLC 94-059; [2021] FedCFamC1A 39;

Dickinson & Packam [2021] FamCA 298

Ming & Dao [2020] FamCA 726

Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4

Naylen & Naylen [2021] FamCA 392

Ryder & Bonham [2017] FamCA 979

Salvage & Fosse (2020) FLC 93-96; [2020] FamCAFC 144

Division:

Division 1 First Instance

Number of paragraphs:

65

Date of hearing:

23 December 2021

Place:

Sydney

Counsel for the Applicant:

Mr Cummings SC

Solicitor for the Applicant:

Mills Oakley Law Firm

Counsel for the Respondent:

Mr Williams QC

Solicitor for the Respondent:

Jo-Anna F.S. Moy Solicitor

ORDERS

SYC 6075 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DE SILVA

Applicant

AND:

MR RATNAYAKE

Respondent

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	24 DECEMBER 2021

THE COURT ORDERS THAT:

1.The husband shall pay the wife within 28 days the sum of $40,000 by way of interim costs.

2.On a without admissions basis the husband is restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the wife.

3.On a without admissions basis the husband will not issue and is hereby restrained from issuing to the wife a notice to vacate the property at B Street, Suburb C, New South Wales under the provisions of Clause 11A of the Financial Agreement executed by the parties and dated 7 March 2013.

4.The wife's Amended Application in a Case and the husband's Response to that Amended Application is otherwise dismissed.

5.The matter is otherwise adjourned to the Docket Registrar on a date to be fixed for a procedural hearing.

Note:   The form of the order is subject to the entry in…