Gaulit and Bunker - [2010] FamCA 232

FAMILY COURT OF AUSTRALIA

GAULIT & BUNKER

[2010] FamCA 232

FAMILY LAW – PROPERTY – interim property settlement – for payment of legal expenses – application granted

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

Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166

APPLICANT:

Ms Gaulit

RESPONDENT:

Mr Bunker

INTERVENOR:

Ms B

INDEPENDENT CHILDREN’S LAWYER:

Mr M Finn

FILE NUMBER:

MLC

3776

2008

DATE DELIVERED:

18 March 2010

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

BENNETT J

HEARING DATE:

15 FEBRUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Bartfeld QC

SOLICITOR FOR THE APPLICANT:

Meerkin & Apel

COUNSEL FOR THE RESPONDENT:

Ms M Vohra

SOLICITOR FOR THE RESPONDENT:

Pearsons

COUNSEL FOR THE INTERVENER

Ms K Southey

SOLICITOR FOR THE INTERVENER

David Joseph & Co

Orders

The husband pay or cause to be paid to the wife the sum of $135,000 such sum to be paid within 30 days into the wife’s lawyers’ trust account to be utilised:-
a. As to $60,000 in payment of outstanding legal expenses associated with these proceedings;
b. As to $75,000 to be used for future legal costs and disbursements of the wife in these proceedings and, subject to further or other order of the court to the contrary, not otherwise.
That the parties’ costs of and incidental to this application be reserved and, in the event that any party seeks a determination of such costs prior to the final hearing of the financial matters, that party has liberty to approach Registrar Riddiford to have the matter listed before me for that purpose.
The applications of the wife filed 30 October 2009 and 3 February 2009 and the husband’s response filed 10 November 2009 be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gaulit & Bunker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3776 of 2008

MS GAULIT

Applicant

And

MR BUNKER

Respondent

REASONS FOR JUDGMENT

Applications

The principal applications between the husband and the wife seek a final alteration of property interests and parenting orders regarding the parties’ child, a son born in March 2000. The parenting matters were to have been heard but have been adjourned for hearing before me on 10 May 2010 as the first case in that rolling list. Pursuant to an order made by me on 13 November 2009, the property matters are to be dealt with as a separate trial. The property proceedings also involve an intervenor, Ms B, who is one of two daughters from the husband’s previous marriage relationship.
The interim application requiring determination was filed by the wife on 30 October 2009. It is an application in a case in which the wife seeks an order that the husband pay the sum of $180,000, such sum to be paid to the wife’s solicitors’ trust account and utilised by her to meet her legal costs and disbursements and to later be categorised…

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 Gaulit and Bunker

Details

AGLC: Gaulit and Bunker [2010] FamCA 232
Case: [2010] FamCA 232
Decision Date: 18 March 2010

CaseChat Overview and Summary

In *Gaulit and Bunker*, heard before Bennett J, the dispute concerned financial matters between a husband and wife. The wife had filed applications on 30 October 2009 and 3 February 2009, to which the husband responded on 10 November 2009.

The court was required to determine the appropriate orders regarding the wife's legal expenses and the disposition of the parties' applications. Specifically, the court needed to decide how outstanding and future legal costs would be met and whether the wife's applications and the husband's response should be dismissed.

Bennett J ordered the husband to pay the wife $135,000 within 30 days into her lawyers' trust account. Of this sum, $60,000 was to be used for outstanding legal expenses, and $75,000 was allocated for future legal costs and disbursements of the wife in the proceedings, with a restriction that it not be used otherwise unless by further court order. The applications of the wife filed on 30 October 2009 and 3 February 2009, and the husband’s response filed on 10 November 2009, were otherwise dismissed. The parties' costs of and incidental to this application were reserved, with liberty to approach Registrar Riddiford for listing before Bennett J if a determination of costs was sought prior to the final hearing of the financial matters.

Orders

Orders of the court

The husband pay or cause to be paid to the wife the sum of $135,000 such sum to be paid within 30 days into the wife’s lawyers’ trust account to be utilised:-

a. As to $60,000 in payment of outstanding legal expenses associated with these proceedings;

b. As to $75,000 to be used for future legal costs and disbursements of the wife in these proceedings and, subject to further or other order of the court to the contrary, not otherwise.

That the parties’ costs of and incidental to this application be reserved and, in the event that any party seeks a determination of such costs prior to the final hearing of the financial matters, that party has liberty to approach Registrar Riddiford to have the matter listed before me for that purpose.

The applications of the wife filed 30 October 2009 and 3 February 2009 and the husband’s response filed 10 November 2009 be otherwise dismissed.

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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