Fowles and Fowles - [2020] FamCA 282

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES

[2020] FamCA 282

FAMILY LAW – PROPERTY – where an order was made requiring the husband’s practitioners to pay a proportion of all monies received from the husband to the wife’s practitioners to be applied on payment of outgoings on the former matrimonial home – where wife seeks to apply funds held by her solicitor in payment of liabilities not associated with the former matrimonial home and principally her legal costs – husband opposes distribution of funds – distribution allowed.

Family Law Rules 2004 (Cth)

APPLICANT:

Ms Fowles

RESPONDENT:

Mr Fowles

INDEPENDENT CHILDREN’S LAWYER:

Ms Lonergan

FILE NUMBER:

MLC

8587

2015

DATE DELIVERED:

4 February 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

4 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood SC

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Salamanca

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Excused from attendance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

From the monies held by Lander & Rogers accumulated by reason of paragraph 7 of the Order made on 5 July 2018 there be paid to the wife the following by way of part property settlement:-
(a) the sum of $150,000 to be applied in reduction of the wife’s liability to LL Company;
(b) the sum of $50,000 to be used as the wife sees fit.
In relation to costs of the interim proceedings of November and December 2019 and the costs of this day, any party wishing to make an application for costs do so within 14 days and support same with written submissions of not more than 5 pages. Otherwise:-
(a) Without prejudice to any basis upon which costs may be sought to be calculated, any party making an application for costs accompany such application with a memorandum of those costs drawn in accordance with Schedule 3 to the Family Law Rules 2004; and
(b) Any party receiving an application for costs file and serve a response and submissions of not more than 5 pages within 14 days of service including a response and submissions as to liability and quantum.
(c) Seven days after the response is filed each party advise the other and my Associate – ... – as to whether he/she seeks to make further submissions orally and, if either party does, the matter be listed for mention (estimated to take one hour).
The submission as to costs take into account the costs associated with the application for costs and my preference is to fix the quantum of any costs rather than require the parties to participate in an assessment of costs.
The wife’s application and responses of the parties filed in November 2019, December 2019 and February 2020 be otherwise dismissed.

AND IT IS NOTED that the continuation of the final hearing of this matter is listed to a date to be fixed subject to a trial plan being…

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

Case: [2020] FamCA 282
Decision Date: 4 February 2020

CaseChat Overview and Summary

In Fowles and Fowles, the wife sought orders for part property settlement from monies held by Lander & Rogers, and the parties also addressed costs associated with interim proceedings. The matter came before Bennett J.

The primary legal issues before the court were the quantum and distribution of funds for part property settlement, and the procedure for determining costs in relation to interim proceedings. The court also considered the dismissal of certain applications made by the wife.

Bennett J ordered that $150,000 be paid to the wife to reduce her liability to LL Company, and a further $50,000 be paid to the wife for her own use. The court also established a detailed process for any party wishing to make an application for costs, requiring written submissions and allowing for a response and further submissions, with a preference for fixing the quantum of costs rather than proceeding to a formal assessment. The wife's applications and the parties' responses filed in November 2019, December 2019, and February 2020 were otherwise dismissed. The final hearing of the matter was adjourned to a date to be fixed, contingent on the submission of a trial plan.

Orders

Orders of the court

From the monies held by Lander & Rogers accumulated by reason of paragraph 7 of the Order made on 5 July 2018 there be paid to the wife the following by way of part property settlement:-

(a) the sum of $150,000 to be applied in reduction of the wife’s liability to LL Company;

(b) the sum of $50,000 to be used as the wife sees fit.

In relation to costs of the interim proceedings of November and December 2019 and the costs of this day, any party wishing to make an application for costs do so within 14 days and support same with written submissions of not more than 5 pages. Otherwise:-

(a) Without prejudice to any basis upon which costs may be sought to be calculated, any party making an application for costs accompany such application with a memorandum of those costs drawn in accordance with Schedule 3 to the Family Law Rules 2004; and

(b) Any party receiving an application for costs file and serve a response and submissions of not more than 5 pages within 14 days of service including a response and submissions as to liability and quantum.

(c) Seven days after the response is filed each party advise the other and my Associate – ... – as to whether he/she seeks to make further submissions orally and, if either party does, the matter be listed for mention (estimated to take one hour).

The submission as to costs take into account the costs associated with the application for costs and my preference is to fix the quantum of any costs rather than require the parties to participate in an assessment of costs.

The wife’s application and responses of the parties filed in November 2019, December 2019 and February 2020 be otherwise dismissed.

AND IT IS NOTED that the continuation of the final hearing of this matter is listed to a date to be fixed subject to a trial plan being submitted to my Chambers so that the matter can be allocated appropriately.

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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