GEORGE & BUTLER - [2015] FCCA 2154

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEORGE & BUTLER

[2015] FCCA 2154

Catchwords:
FAMILY LAW – Interim spouse maintenance.

Legislation:

Family Law Act 1975, ss.72, 74, 75, 114

Kiesinger & Paget [2008] FamCAFC 23
Mitchell & Mitchell [1995] FamCA 32
Weir & Weir (1993) FLC 92-338

Applicant:

MS GEORGE

Respondent:

MR BUTLER

File Number:

WOC 927 of 2010

Judgment of:

Judge Altobelli

Hearing date:

10 July 2015

Date of Last Submission:

14 July 2015

Delivered at:

Wollongong

Delivered on:

14 July 2015

REPRESENTATION

Solicitors for the Applicant:

Rita Thakur & Associates

Solicitors for the Respondent:

DGB Lawyers

ORDERS

The Husband is to pay interim spousal maintenance to the Wife as follows:
(a)$564 per week to be paid seven (7) days hence
(b)$984 per week from 7 November 2015
The wife’s costs of the application are reserved.
The matter be listed for 3 day Final Hearing on 25 July 2016 at 10am.
Both parties file and serve any Amended Application / Response / Financial Statement upon which they intend to rely by no later than 8 July 2016.
Each party is to file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witness’s affidavits by no later than 8 July 2016.
Neither party may rely on any documents filed after 8 July 2016 without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.
Each party is to file and serve a Case Outline document by no later than 4:00pm on 8 July 2016, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought;
(c)a list of objections to evidence and the basis for such objection;
(d)a brief summary of argument setting out:
(i)the party’s contention as to the percentage contribution based entitlement asserted and the evidence relied on;
(ii)the party’s contention as to any s.75(2) percentage adjustment sought, the factors in s.75(2) relied on and the evidence relied on;
(e)a joint balance sheet, identifying the agreed and not agreed values of the pool of assets;
(f)a draft of the order sought to give effect to the overall entitlement asserted.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.
Both parties are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.
Liberty is granted to the parties to re-list the matter on seven (7) days’ notice by joint application to the Court in Chambers in appropriate circumstances.

THE COURT NOTES THAT:

A party’s trial Affidavits will not be read until the Case Outline document has been filed and served in accordance with these directions, which may result in the…

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 GEORGE & BUTLER

Details

AGLC: George and Butler [2015] FCCA 2154
Case: [2015] FCCA 2154
Decision Date: 14 July 2015

CaseChat Overview and Summary

In *George & Butler*, the Federal Circuit Court of Australia considered an application for interim spousal maintenance. The dispute concerned the financial support to be provided by the Husband to the Wife pending the final determination of their property settlement proceedings.

The primary legal issue before the Court was to determine the appropriate quantum and commencement date for interim spousal maintenance payable by the Husband to the Wife. The Court also addressed the procedural directions for the conduct of the final hearing, including the filing of evidence, case outlines, and amended applications.

Judge Altobelli ordered the Husband to pay interim spousal maintenance of $564 per week commencing seven days from the date of the order, and $984 per week from 7 November 2015. The Court also issued detailed directions for the filing of all further material, including affidavits and case outlines, by 8 July 2016, emphasizing that non-compliance could lead to the vacation of trial dates or other adverse consequences. The Wife's costs of the application were reserved, and the matter was listed for a three-day final hearing on 25 July 2016.

Orders

Orders of the court

The Husband is to pay interim spousal maintenance to the Wife as follows:

(a) $564 per week to be paid seven (7) days hence

(b) $984 per week from 7 November 2015

The wife’s costs of the application are reserved.

The matter be listed for 3 day Final Hearing on 25 July 2016 at 10am.

Both parties file and serve any Amended Application / Response / Financial Statement upon which they intend to rely by no later than 8 July 2016.

Each party is to file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witness’s affidavits by no later than 8 July 2016.

Neither party may rely on any documents filed after 8 July 2016 without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.

Each party is to file and serve a Case Outline document by no later than 4:00pm on 8 July 2016, setting out:

(a) a list of documents to be read in their case;

(b) a precise Minute of Orders Sought;

(d) a brief summary of argument setting out:

(i) the party’s contention as to the percentage contribution based entitlement asserted and the evidence relied on;

(ii) the party’s contention as to any s.75(2) percentage adjustment sought, the factors in s.75(2) relied on and the evidence relied on;

(e) a joint balance sheet, identifying the agreed and not agreed values of the pool of assets;

(f) a draft of the order sought to give effect to the overall entitlement asserted.

The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

Both parties are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.

10.

Liberty is granted to the parties to re-list the matter on seven (7) days’ notice by joint application to the Court in Chambers in appropriate circumstances.

THE COURT NOTES THAT:

11.

A party’s trial Affidavits will not be read until the Case Outline document has been filed and served in accordance with these directions, which may result in the Final Hearing dates being vacated, other matters being listed with priority, or the matter becoming part-heard.

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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