GRAINGER & EDEN - [2015] FCCA 3006

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRAINGER & EDEN

[2015] FCCA 3006

Catchwords:
FAMILY LAW – Security for costs application – further application for access to files of the parties in earlier family law (the de facto Wife) proceedings and in recent criminal proceedings (the de facto Husband) – fixed costs order sought by Applicant de facto Wife for Respondent de facto Husband vacating the final hearing for a second time – request for Husband’s former solicitors to respond to Husband’s allegations of negligence.

Legislation:

Family Law Act 1975, s.117(2A)

Federal Circuit Court Rules 2001, r.21.01

Bartsch & Redman (2014) FLC ¶93-584
Evans v Rochford (2003) 30 Fam LR 336
Luadaka & Luadaka (1998) 148 FLR 421; (1998) 24 Fam LR 340
Sidhu v Van Dyke (2014) 251 CLR 505

Applicant:

MS GRAINGER

Respondent:

MR EDEN

File Number:

CAC 767 of 2014

Judgment of:

Judge Neville

Hearing date:

20 August 2015

Date of Last Submission:

21 September 2015

Delivered at:

Canberra

Delivered on:

12 November 2015

REPRESENTATION

Counsel for the Applicant:

Ms B Lane

Solicitors for the Applicant:

Campbell & Co

Counsel for the Respondent:

Mr J Shaw

Solicitors for the Respondent:

N/A

ORDERS

The Husband is to pay the sum of $25,000.00 to the trust account of the Wife’s solicitor, within 90 days from the date of these Orders by way of security for costs, pursuant to Section 117(2A) of the Family Law Act 1975 (Cth).
The Husband is to pay the Wife’s costs for the Directions Hearing of 20 August 2015 and for the vacated Final Hearing on 21 August 2015 in the amount of $8490.00 within 60 days from the date of these Orders. Such payment must be made to the Wife’s solicitor’s trust account.
The Hearing dates of 21 and 22 April 2016 be stayed, pending full payment of the costs outlined in Orders 1 and 2 within the stipulated time frame.
The parties are to attend a Conciliation Conference on 16 December 2015 commencing at 2:15pm.
The Applicant shall pay the Conciliation Conference fee, or obtain an exemption for such payment, if applicable, in accordance with Regulation 2.09 of the Family Law (Fees) Regulation 2012.
If either party is in a superannuation plan that party forthwith make an application to the Trustee of the plan pursuant to Section 90MZB for information about the party’s interest in the plan and provide a copy of that information to the other party as soon as it is received.
Unless by 2 December 2015 the parties agree on the value of all assets in dispute, they shall arrange for a single joint valuation of those assets to be available at least 7 days before the Conciliation Conference with the costs of such valuation to be equally shared, unless otherwise agreed in writing.
If valuations are in issue the parties are to exchange copies of valuations or market appraisals no later than 14 days prior to the date of the conference.
The solicitors for the parties…

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 GRAINGER & EDEN

Details

AGLC: Grainger and Eden [2015] FCCA 3006
Case: [2015] FCCA 3006
Decision Date: 12 November 2015

CaseChat Overview and Summary

This matter concerned a dispute between a Husband and Wife, heard by Judge Neville in the Family Court of Australia. The proceedings involved applications relating to costs, the stay of future hearing dates, and directions for the progression of the case towards a conciliation conference and potential resolution of asset division.

The court was required to determine several issues, including the appropriate security for costs to be paid by the Husband, the quantum of costs to be paid by the Husband for previous hearings, and whether future hearing dates should be stayed pending compliance with cost orders. Additionally, the court needed to issue directions regarding a conciliation conference, the valuation of disputed assets, and the exchange of financial information, including superannuation interests. The court also addressed allegations made by the Husband concerning his former solicitors' conduct.

Judge Neville ordered the Husband to pay $25,000.00 as security for costs and $8,490.00 for the Wife's costs for a directions hearing and a vacated final hearing, with specific timeframes for payment. The court further ordered a stay of the April 2016 hearing dates until these costs were fully paid. Directions were given for a conciliation conference, including the payment of the conference fee, the process for obtaining superannuation information, and the joint valuation of assets if agreement could not be reached by a specified date. The court also requested the Husband's former solicitors to respond to allegations of acting without instructions regarding a de facto relationship and consent orders concerning property sale.

Orders

Orders of the court

The Husband is to pay the sum of $25,000.00 to the trust account of the Wife’s solicitor, within 90 days from the date of these Orders by way of security for costs, pursuant to Section 117(2A) of the Family Law Act 1975 (Cth).

The Husband is to pay the Wife’s costs for the Directions Hearing of 20 August 2015 and for the vacated Final Hearing on 21 August 2015 in the amount of $8490.00 within 60 days from the date of these Orders. Such payment must be made to the Wife’s solicitor’s trust account.

The Hearing dates of 21 and 22 April 2016 be stayed, pending full payment of the costs outlined in Orders 1 and 2 within the stipulated time frame.

The parties are to attend a Conciliation Conference on 16 December 2015 commencing at 2:15pm.

The Applicant shall pay the Conciliation Conference fee, or obtain an exemption for such payment, if applicable, in accordance with Regulation 2.09 of the Family Law (Fees) Regulation 2012.

If either party is in a superannuation plan that party forthwith make an application to the Trustee of the plan pursuant to Section 90MZB for information about the party’s interest in the plan and provide a copy of that information to the other party as soon as it is received.

Unless by 2 December 2015 the parties agree on the value of all assets in dispute, they shall arrange for a single joint valuation of those assets to be available at least 7 days before the Conciliation Conference with the costs of such valuation to be equally shared, unless otherwise agreed in writing.

If valuations are in issue the parties are to exchange copies of valuations or market appraisals no later than 14 days prior to the date of the conference.

The solicitors for the parties are to email the Registrar a Conciliation Conference document to Canberra@familycourt.gov.au no later than 2:00pm the day before the Conference.

10.

The solicitors comply with Rule 19.04 Family Law Rules 2004 (Notification of costs).

11.

The Registrar of the Court is requested to provide a copy of these reasons to the Husband’s former solicitors.

12.

The Husband’s former solicitors are invited by the Court to respond to the Husband’s allegations that they did not have instructions to advise the Court to concede the existence of a de facto relationship between the parties, and that the consent orders made by the Registrar at the conclusion of the conciliation conference held on 11th December 2014 regarding the sale of the property at Property B were also made without instructions. Any response from the solicitors is requested to be provided to the Court within 28 days.

THE COURT NOTES THAT:

A. No later than 9 December 2015 both parties are to email the Registry at Canberra@familycourt.gov.au to confirm (a) that there are no outstanding matters; (b) no outstanding financial disclosure and (c) that the matter is ready to proceed to the Conciliation Conference.

B. Absent the receipt of emails from both parties (or an email acknowledging that it is jointly sent) the Conciliation Conference will be vacated without further notice to the parties.

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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