Field and Kingston (No 2)

Case [2017] FamCA 1071


FAMILY COURT OF AUSTRALIA

FIELD & KINGSTON (NO. 2) [2017] FamCA 1071
FAMILY LAW – PROPERTY – Interim proceedings – Where the wife seeks a “dollar for dollar” costs order – Where such an order is sought under section 117 of the Family Law Act – Where the wife alleges the order is needed to “level the playing field” – Where neither party has made full disclosure as to their financial circumstances – Where a finding cannot be made that the husband has far greater access to funds than the wife – No order made for litigation costs – Where the wife seeks that the husband be restrained from dealing with the former matrimonial home – Where the husband has shown a propensity to shift and dispense of matrimonial assets – Where the injunction sought by the wife is not onerous – Injunctive order made – Where the husband seeks that the wife be restrained from bringing further proceedings until her pending appeal is finalised – Where the husband sought that such an order be made under section 114 of the Family Law Act or Rule 1.09 of the Family Law Rules – Where the appropriate section under which such an order may be made in section 102QB of the Family Law Act – Where both parties have brought numerous applications before the court – Where the wife does not meet the threshold of a vexatious litigation – No order made restraining the wife from bringing further applications.
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 80, 102Q, 102QB, 114, 117
Family Law Rules 2004 (Cth) r 1.09
Bernieres and Anor & Dopal and Anor (2017) FLC 93 -793
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Glover v Walters (1950) CLR 172
In the Marriage of BA and RS Waugh (1999) 27 FamLR 63
Jackson v Sterling Industries Ltd (1987) 162 CLR 612; 71 ALR 457
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Penfold v Penfold (1980) 144 CLR 311
Poletti & Poletti (Unreported, Family Court of Australia, Nygh J, 2 March 1990)
Strahan & Strahan [2009] FamCAFC 166
The Estate of Parke and Anor & Parke [2017] FamCA 454
Wilson & Wilson (1989) FLC 92-033
Zschokke & Zschokke (1996) FLC 92-69
APPLICANT: Ms Field
RESPONDENT: Mr Kingston
FILE NUMBER: PAC 2095 of 2014
DATE DELIVERED: 21 December 2017
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Hannam J
HEARING DATE: 13 June 2017 & 14 August 2017 & 14 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart on 13 June 2017
SOLICITOR FOR THE APPLICANT: Matthews Folbigg Solicitors
COUNSEL FOR THE RESPONDENT: Mr Schonell SC on 13 June 2017 and 14 November 2017, Mr Elliott on 14 August 2017
SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

  1. That Orders (1) – (4) sought by the Wife in her Amended Application in a Case filed 7 June 2017 are dismissed.

  2. That upon the Wife’s undertaking as to damages…

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AGLC
Field and Kingston (No 2) [2017] FamCA 1071
Case
[2017] FamCA 1071
Decision Date

CaseChat Overview and Summary

In the matter of *Field and Kingston (No 2)*, Hannam J of the Family Court of Australia considered an application by the Wife seeking certain orders, and a counter-application by the Husband. The dispute concerned the disposition of property, specifically the matrimonial home located at D Street, Suburb B.

The primary legal issues before the court were whether to grant the orders sought by the Wife, which were dismissed, and whether to grant the order sought by the Husband, which was also dismissed. The court also had to determine the terms of any restraining orders concerning the matrimonial home.

Hannam J dismissed the Wife's application in its entirety. However, the court made an order restraining the Husband from selling, charging, mortgaging, encumbering, alienating, disposing of, or otherwise dealing with the property at D Street, Suburb B. This restraint was conditional upon the Wife providing 90 days' written notice to the Husband's lawyer and was granted upon the Wife's undertaking as to damages. The Husband's separate application for an order was also dismissed.

Orders

Orders of the court

1.

That Orders (1) – (4) sought by the Wife in her Amended Application in a Case filed 7 June 2017 are dismissed.

2.

That upon the Wife’s undertaking as to damages the Husband, Mr Kingston, be restrained from selling, charging, mortgaging, encumbering, alienating, disposing of or in any other way dealing with the property known as and situate at D Street, Suburb B being the whole of the land contained in folio identifier … without first providing to the lawyer for the Wife 90 days notice in writing.

3.

That Order (2) sought by the Husband in his Response to an Application in a Case filed 14 August 2017 be 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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