GLOVER & WEBSTER - [2020] FamCA 422

FAMILY COURT OF AUSTRALIA

GLOVER & WEBSTER

[2020] FamCA 422

FAMILY LAW – PRACTICE AND PROCEDURE – whether the proceedings should be listed for a discrete hearing to determine whether there exists any property not covered by the binding financial agreement between the parties

FAMILY LAW – PROPERTY – where the de facto wife seeks the sum of $225,000 for litigation funding – where the Court finds $20,000 is more appropriate – where the de facto husband may have little prospect of receiving the sum of $20,000 (or any part of his costs) from the de facto wife – where the Court takes that detriment to the de facto husband into account – order made for the de facto husband to pay to the de facto wife $20,000 by way of interim property adjustment

FAMILY LAW – INJUNCTIONS – where the de facto wife seeks to restrain the de facto husband from the use and operation of various entities – application dismissed

Family Law Act 1975 (Cth) ss 90SM, 79
Family Law Rules 2004 (Cth) rr.1.04, 10.13

Webster & Glover [2018] FCCA 3340
Esdale & Schenk [2012] FamCA 111
Atkins & Hunt and Ors [2018] FamCA 14
Zschokke & Zschokke (1996) FLC 92-693
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-46
Harris & Harris (1993) FLC 92-378
Tsiang & Wu and Ors [2019] FamCAFC 128
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Mullen and De Bry (2006) FLC 93-293
Palmer v Parbery [2019] QCA 27

APPLICANT:

Ms Glover

RESPONDENT:

Mr Webster

FILE NUMBER:

BRC

11228

2016

DATE DELIVERED:

29 May 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

20 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R Galloway (direct brief)

COUNSEL FOR THE RESPONDENT:

Mr J Bunning

SOLICITOR FOR THE RESPONDENT:

Damien Greer Lawyers

Orders

That by way of interim property adjustment, the Respondent pay to the Applicant the sum of $20,000 within thirty (30) days of the date of this Order.
That the Applicant’s application for injunctive relief be dismissed.
That these proceedings be adjourned for Case Management Hearing at 9.30am on 9 July 2020 in the Family Court of Australia at Brisbane.

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 Webster & Glover has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11228 of 2016

Ms Glover

Applicant

And

Mr Webster

Respondent

REASONS FOR JUDGMENT

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 GLOVER & WEBSTER

Details

AGLC: GLOVER & WEBSTER [2020] FamCA 422
Case: [2020] FamCA 422
Decision Date: 29 May 2020

CaseChat Overview and Summary

In *Glover & Webster*, heard before Baumann J, the dispute concerned applications made by the de facto wife (Applicant) against the de facto husband (Respondent) in family law proceedings. The Applicant sought, among other things, litigation funding and injunctive relief to restrain the Respondent's use of various entities. A central issue was whether the proceedings should be listed for a discrete hearing to determine if any property existed outside the scope of a binding financial agreement between the parties.

The court was required to determine the appropriate amount of interim property adjustment for litigation funding, the merits of the Applicant's application for injunctive relief, and the existence of property not covered by the parties' binding financial agreement.

Baumann J ordered the Respondent to pay the Applicant $20,000 by way of interim property adjustment, finding this sum to be more appropriate than the $225,000 sought. In making this order, the court took into account the potential detriment to the Respondent, noting he might have little prospect of recovering any costs from the Applicant. The application for injunctive relief was dismissed. The proceedings were subsequently adjourned for a case management hearing.

Orders

Orders of the court

That by way of interim property adjustment, the Respondent pay to the Applicant the sum of $20,000 within thirty (30) days of the date of this Order.

That the Applicant’s application for injunctive relief be dismissed.

That these proceedings be adjourned for Case Management Hearing at 9.30am on 9 July 2020 in the Family Court of Australia at Brisbane.

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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