DISHI & DISHI - [2017] FamCA 164

FAMILY COURT OF AUSTRALIA

DISHI & DISHI

[2017] FamCA 164

FAMILY LAW – PRACTICE AND PROCEDURE – Reserved interim property – Application to re-open – land tax liability – where it is in the interests of justice to re-open

FAMILY LAW – PROPERTY – Fund for litigation – Controlled monies – where the husband is in a relatively stronger financial position than the wife – where the wife has an inability to meet her litigation costs – where a litigation funding order by way of interim property division is appropriate – where there is an interim property settlement in the wife’s favour.

Family Law Act 1975 (Cth) ss 72, 74, 79, 80(1), 117

Abdo and Abdo (1989) FLC 92-013
Harris & Harris (1993) FLC 92-375
Norbis v Norbis (1986) FLC 91-712
Paris King Investments Pty Ltd v Rayhil [2006] NSWSC 578
Strahan & Strahan (interim property orders) (2011) FLC 93-466
Summitt & Summitt (Re-opening) [2009] FamCA 365
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT:

Ms Dishi

RESPONDENT:

Mr Dishi

FILE NUMBER:

SYC

1195

2014

DATE DELIVERED:

21 March 2017

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns (by video link to Sydney)

JUDGMENT OF:

Tree J

HEARING DATE:

23 February and 15 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC on 23 February 2017 and Mr Macpherson on 15 March 2015

SOLICITORS FOR THE APPLICANT:

Warren McKeon Dickson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Todd

SOLICITORS FOR THE RESPONDENT:

Jordan Djundja Lawyers

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 Dishi & Dishi 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 CAIRNS

FILE NUMBER: SYC1195/2014

Ms Dishi

Applicant

And

Mr Dishi

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 20 June 2016 Watts J made consent orders establishing a controlled monies account, which presently stands with a credit balance slightly in excess of $400,000.00 (“the controlled monies”).
By Application in a Case filed 11 October 2016,[1] Ms Dishi (“the wife”) seeks that all of those monies be disbursed to her, with 50 per cent being paid to the account of her solicitor “by way of interim costs” and the other 50 per cent be paid to her, with the nature of that payment to be reserved for characterisation by the trial judge. By his Response filed 9 December 2016, Mr Dishi (“the husband”) opposes the wife’s application, but instead seeks, in substance, that those funds be paid to the Australian Tax Office or himself in various sums, and that any balance remaining be retained…

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.

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Details

AGLC: DISHI & DISHI [2017] FamCA 164
Case: [2017] FamCA 164
Decision Date: 21 March 2017

CaseChat Overview and Summary

The parties in this matter were DISHI & DISHI, with the case heard by Tree J. The dispute concerned an application to re-open reserved interim property orders due to a newly arisen land tax liability, and also involved an application for a litigation funding order.

The court was required to determine whether it was in the interests of justice to re-open the previously reserved interim property orders in light of the land tax liability. Additionally, the court had to consider whether to make an order for litigation funding, by way of an interim property division, given the husband's stronger financial position and the wife's inability to meet her litigation costs.

Tree J reasoned that the emergence of the land tax liability constituted a material change in circumstances that warranted re-opening the reserved interim property orders to ensure a just and equitable outcome. Regarding the litigation funding, the court found that an interim property settlement in the wife's favour was appropriate to address her financial disadvantage in meeting legal expenses, thereby promoting procedural fairness.

The court made orders for an interim property settlement in the wife's favour, which included provision for her litigation costs. The reserved interim property orders were also re-opened to account for the land tax liability.

Orders