FAMILY COURT OF AUSTRALIA
| FOSSE & SALVAGE | [2019] FamCA 385 |
| FAMILY LAW – PROPERTY – Interim relief – Where the wife seeks an order for litigation funding together with spouse maintenance – Where the husband seeks that the wife’s application be dismissed – Where Cohabitation Agreement – Where the court satisfied that the husband has the capacity to meet his litigation costs – Where the wife does not have any ability to meet her litigation costs – Where the husband argued that the cohabitation agreement is binding until set aside – Where the terms of the cohabitation agreement do not prevent the wife from seeking litigation funding orders under s 117 – Where just in circumstances for litigation funding in favour of the wife – Where the court satisfied that the cohabitation agreement came into effect after separation, potentially engaging s 90UI – Where at the time the cohabitation agreement came into effect the wife was unable to support herself – Order that the husband pay maintenance at the weekly rate claimed by the wife. |
| Acts Interpretations Act 1901 (Cth) ss 15AB Family Law Act 1975 (Cth) ss 72, 74, 79, 80, 117, 71A, 90B, 90C, 90D, 90F, 90UC, 90UF, 90UG, 90UH, 90UI, 90SA, 90SF Family Law Amendment Act 2000 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Property Law Act 1974 (Qld) ss 264, 266 |
| Zschokke & Zschokke (1996) FLC 92-693 Stanton & Brook [2012] FamCA 230 |
| APPLICANT: | Ms Fosse |
| RESPONDENT: | Mr Salvage |
| FILE NUMBER: | CSC | 563 | of | 2018 |
| DATE DELIVERED: | 14 June 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 13 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Firth |
| SOLICITORS FOR THE APPLICANT: | Damien Greer Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITORS FOR THE RESPONDENT: | Hopgood Ganim |
Orders
Within 14 days from the date of this order, the husband is to cause to be paid into the trust account of the wife’s solicitors the sum of $100,000.00, which monies are only to be used to meet the wife’s legal costs of these proceedings.
Until further order, the husband pay the wife interim spouse maintenance in the sum of $516.05 per week.
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 Fosse & Salvage has been approved by the Chief Justice pursuant to s…
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- AGLC
- FOSSE & SALVAGE [2019] FamCA 385
- Case
- [2019] FamCA 385
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the cohabitation agreement precluded the wife from seeking litigation funding under s 117 of the Family Law Act 1975 (Cth). Additionally, the court needed to consider whether the circumstances justified an order for litigation funding in favour of the wife, and whether she was entitled to interim spouse maintenance. The court also had to assess if the cohabitation agreement, entered into after separation, engaged s 90UI of the Family Law Act, particularly given the wife's inability to support herself at that time.
Tree J found that the terms of the cohabitation agreement did not prevent the wife from seeking litigation funding orders under s 117. The court was satisfied that the husband had the capacity to meet his litigation costs and that the wife lacked the ability to do so. Consequently, the court deemed it just in the circumstances to grant litigation funding in favour of the wife. Furthermore, the court was satisfied that the cohabitation agreement came into effect after separation and that the wife was unable to support herself when it did.
The court ordered that within 14 days, the husband pay $100,000.00 into the trust account of the wife's solicitors for her legal costs. Until further order, the husband was also ordered to pay the wife interim spouse maintenance of $516.05 per week.
Orders
Orders of the court
1.
Within 14 days from the date of this order, the husband is to cause to be paid into the trust account of the wife’s solicitors the sum of $100,000.00, which monies are only to be used to meet the wife’s legal costs of these proceedings.
2.
Until further order, the husband pay the wife interim spouse maintenance in the sum of $516.05 per week.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Separation5.1 Neither will be required to pay maintenance to the other.…5.4That save as otherwise herein provided assets and resources accumulated in the name of one, other or both of the parties during the course of the relationship (“the Joint Property”) shall be deemed to be owned by the parties in the proportions described in any document evidencing title and if none then in accordance with their respective contributions thereto. 5.5If either party acquires assets and/or financial resources after the date of this agreement in their own name then that party will be entitled to the benefit of that property or financial resource.… Legal FeesMr Salvage and Ms Fosse agree to each pay their own legal costs of and incidental to this Agreement and all actions taken in negotiations preceding this Agreement. General Provision8.1Neither party will make any further claim against the significant property, financial resources and liabilities of the other party, other than as stipulated in this Agreement.… 8.3Sanae has no entitlement to and will not make any claim against the husband in respect of any property, income, financial resources or liability which Mr Salvage may acquire after the date of signing this Agreement.8.4Mr Salvage has no entitlement to and will not make any claim against Ms Fosse in respect of any property, income, financial resources or liability which Ms Fosse may acquire after the date of signing this Agreement.… Cumulative RightsThe rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the part(y) at law or in equity.… This AgreementRecitals form part of this deed of Agreement and the parties warrant their truth and accuracy. Costs/Stamp DutyThe parties must bear their own costs of and incidental to the negotiation, preparation and execution of this agreement. Any stamp duty chargeable upon or in respect of this deed or an instrument prepared pursuant to this Agreement shall be paid by the transferee who shall indemnify the transferor in respect of such stamp duty. Pleading this Agreement as a BarMr Salvage and Ms Fosse agree and acknowledge the terms of this deed may be pleaded as an absolute bar and estoppel to further proceedings, commenced now or taken at any time in the future. Interpretation20.1In this deed, except to the extent that the context otherwise requires:…20.1.3Headings are for the convenience of reference only and do not affect the construction or interpretation of this deed.… There are at least three sources of power to make litigation funding orders. The first is s 117 of the Family Law Act which relevantly provides as follows:117(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118 each party to proceedings under this Act shall bear his or her own costs.117(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.117(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:(a)the financial circumstances of each of the parties to the proceedings;(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and(g)such other matters as the court considers relevant.…