FAZARRI & HSIAO - [2018] FamCA 1159

FAMILY COURT OF AUSTRALIA

FAZARRI & HSIAO

[2018] FamCA 1159

FAMILY LAW – PROPERTY – Litigation funding – Contentious issues about duration of relationship, how the entitlement of the wife is to be calculated, and whether spousal maintenance considerations should affect litigation funding. Orders made for some funding but not what wife seeks as trial expenditure not necessary.

FAMILY LAW – SPOUSAL MAINTENANCE – matter adjourned as wife had not complied with discovery orders.

Family Law Act 1975 (Cth)

Stanford & Stanford (2011) FLC 93-483
Strahan & Strahan (interim property orders) (2011) FLC 93-466
Zschokke & Zschokke (1996) FLC) 92-693

APPLICANT:

MR FAZARRI

RESPONDENT:

MS HSIAO

FILE NUMBER:

MLC

11418

2016

DATE DELIVERED:

31 JANUARY 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

CRONIN J

HEARING DATE:

22 JANUARY 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR NORTH SC

SOLICITOR FOR THE APPLICANT:

TAUSSIG CHERRIE FILDES

COUNSEL FOR THE RESPONDENT:

MR WILSON

SOLICITOR FOR THE RESPONDENT:

BSA LEGAL

Orders

That by 28 February 2018, the husband pay to the solicitors for the wife the sum of $80,000 by way of litigation funding to be held by them for and on behalf of the wife to meet her costs of these proceedings as and when they fall due.
That paragraph 6 of the interim orders sought by the amended response filed 7 September 2017 is otherwise dismissed.

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 Fazarri & Hsiao 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 MELBOURNE

FILE NUMBER: MLC 11418 of 2016

MR FAZARRI

Applicant

And

MS HSIAO

Respondent

REASONS FOR JUDGMENT

By her response filed in the Federal Circuit Court on 7 September 2017 and before the matter was transferred to this Court, Ms Hsiao (“the wife”) sought orders that Mr Fazarri (“the husband”) pay interim spousal maintenance of $3266 per week along with the sum of $200,000 to be applied towards her legal costs and disbursements of this proceeding.
The substantive proceedings relate to property division and spousal maintenance which were commenced by the husband on 22 November 2016.

The December 2017 order

Having been transferred to this Court, it was listed before me on 11 December 2017 in the Judicial Duty List. On that occasion I made orders listing it for a specific hearing on 22 January 2018. In addition, I made the following order:
That by 4.00pm on 22 December 2017, the wife provide to the husband a copy of the electronic messages in her possession, power or control.

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 FAZARRI & HSIAO

Details

AGLC: FAZARRI & HSIAO [2018] FamCA 1159
Case: [2018] FamCA 1159
Decision Date: 31 JANUARY 2018

CaseChat Overview and Summary

In the matter of *Fazzari & Hsiao*, heard before Cronin J, the dispute concerned applications for litigation funding and spousal maintenance. The wife sought significant funding to meet her costs of proceedings, while also seeking spousal maintenance. The husband opposed the full extent of the wife's funding application.

The court was required to determine whether to grant the wife's application for litigation funding, and if so, to what extent, considering the contentious issues surrounding the duration of the relationship, the calculation of the wife's property entitlement, and the potential impact of spousal maintenance considerations. Additionally, the court had to address the wife's application for spousal maintenance, which was contingent on her compliance with discovery orders.

Cronin J reasoned that while some litigation funding was necessary to ensure the wife could properly participate in the proceedings, the full amount sought for trial expenditure was not justified at that stage. The judge considered the wife's financial position and the need for her to meet her costs as they arose. Regarding spousal maintenance, the application was adjourned due to the wife's non-compliance with outstanding discovery orders.

The court ordered that the husband pay $80,000 to the wife's solicitors by 28 February 2018, to be held for the wife's litigation costs. The remainder of the wife's interim orders sought in her amended response were dismissed.

Orders

Orders of the court

That by 28 February 2018, the husband pay to the solicitors for the wife the sum of $80,000 by way of litigation funding to be held by them for and on behalf of the wife to meet her costs of these proceedings as and when they fall due.

That paragraph 6 of the interim orders sought by the amended response filed 7 September 2017 is otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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