DESCAS & DESCAS (NO.2) - [2013] FMCAfam 205

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DESCAS & DESCAS (NO.2)

[2013] FMCAfam 205

FAMILY LAW – COSTS – Application for costs – where wife claims costs as a result of husband's non-disclosure of superannuation entitlements – where proceedings re-opened.

Family Law Act 1975, s.117

Browne v Greene (2002) 29 Fam LR 428; FLC 93-115
Descas & Descas [2013] FMCAfam 69
Gould & Gould (2007) FLC 93-333
K & K [2002] FamCA 1150; (2002) 30 Fam LR 83; (2003) FLC 93-135
Marinko and Marinko (1983) 8 Fam LR 849; FLC 91-307
Patching and Patching (1995) 18 Fam LR 675; FLC 92-333
Robinson and Higginbotham (1991) FLC 92-209 (also reported as In the Marriage of Higginbotham and Robinson ((1991) 14 Fam LR 559)

Applicant:

MS DESCAS

Respondent:

MR DESCAS

File Number:

SYC 6968 of 2009

Judgment of:

Scarlett FM

Hearing date:

Submissions considered in Chambers

Date of Last Submission:

28 February 2013

Delivered at:

Sydney

Delivered on:

14 March 2013

REPRESENTATION

Counsel for the Applicant:

Mr Jackson

Solicitors for the Applicant:

Doolan Wagner & Callaghan

Counsel for the Respondent:

Mr Livingstone

Solicitors for the Respondent:

Alidenes & Company

ORDERS

The Husband is to pay the Wife’s costs of this Application fixed in the amount of $5,500.00.
The Husband is to pay the sum specified in Order (1) by 30 May 2013.

IT IS NOTED that publication of this judgment under the pseudonym Descas & Descas (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 6968 of 2009

MS DESCAS

Applicant

And

MR DESCAS

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Wife for costs arising out of the decision of this Court made on 30^th January 2013 resolving property issues between the parties (Descas & Descas[1]). The Wife seeks costs arising from the Husband’s failure to disclose several of his superannuation interests, resulting in the proceedings being reopened and further evidence taken.
[1] [2013] FMCAfam 69
The Husband opposes the Application for costs, pointing to the critical comments made by the Court about the credibility of the Wife’s evidence. He seeks an order dismissing the Wife’s Application and an order for costs in his favour in the sum of $600.00.
It is not in issues that the wife applied to the Court on 25^th May 2011, after the evidence had otherwise been completed, to re-open the proceedings because it had come to her attention that the Husband had not disclosed some further superannuation interests. The circumstances are described in some detail in paragraphs [72]-[88] of the decision. There was a further hearing on 19^th December 2011 in which the husband gave oral evidence.

Submissions and Evidence

The parties have each filed written submissions. The Husband also relies on an affidavit sworn by his solicitor, Amanda Jane Alidenes, on 21^st February 2013 annexing copies of correspondence between her firm and the firm of solicitors acting for the Wife.
The applications have…

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 DESCAS & DESCAS (NO.2)

Details

AGLC: DESCAS & DESCAS (NO.2) [2013] FMCAfam 205
Case: [2013] FMCAfam 205
Decision Date: 14 March 2013

CaseChat Overview and Summary

In the Family Court of Australia, the case of Descas & Descas involved a dispute between the husband and wife regarding property settlement following their divorce. The wife sought further orders for property settlement, arguing that the initial settlement was unfair. The court was tasked with determining whether the original property settlement should be altered in light of the wife's application.

The central legal issue before the court was whether the original property settlement, which had been approved in a previous case, should be reconsidered. The court needed to assess the fairness of the initial settlement in light of new information and arguments presented by the wife. This involved evaluating the evidence regarding the financial situation of both parties and the contributions each had made to the marriage. Additionally, the court had to consider whether the wife had provided sufficient grounds for the settlement to be revisited.

The court found that the wife had not provided adequate justification for the original settlement to be altered. It was noted that the initial settlement had been made after careful consideration of the evidence and circumstances at that time. The court held that there had been no significant change in circumstances or new evidence that warranted a re-evaluation of the settlement. Consequently, the wife's application for further orders was dismissed. The court ordered that the husband was to pay the wife's costs of the application, fixed at $5,500, to be paid by 30 May 2013.

Orders

Orders of the court

The Husband is to pay the Wife’s costs of this Application fixed in the amount of $5,500.00.

The Husband is to pay the sum specified in Order (1) by 30 May 2013.

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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