Grattan and Grattan and Anor

The Family Court of Australia considered an application by Ms Grattan (the wife) seeking a further partial property settlement of $500,000 against Mr Grattan (the husband) and B Pty Ltd. This followed an earlier consent order where the husband and B Pty Ltd were jointly and severally liable to pay the wife $500,000. The wife's current application sought to make B Pty Ltd jointly and severally liable for an additional $500,000. The husband and B Pty Ltd disputed the Court's jurisdiction and power to make such an order against the company.

The primary legal issue before the Court was whether it possessed the jurisdiction and power under the *Family Law Act 1975* (Cth) to make a property settlement order against a third party, B Pty Ltd, in its own right. The Court also considered a secondary application by the wife for the husband to pay the costs of a single expert valuer at first instance, with an adjustment to be made in the final property settlement.

Justice Cronin determined that the Court lacked the power to make the property settlement order against B Pty Ltd. While acknowledging that matrimonial causes can be instituted under the Act concerning the property of the parties to a marriage, and that s 79 empowers the Court to alter parties' interests in property, the Court found that there was no power to make a property settlement order *per se* against B Pty Ltd. The Court noted that the wife's application invoked s 79, and that the evidence did not establish that the property of B Pty Ltd was property of the parties to the marriage at that stage. The Court referred to *Kyriakos v Kyriakos* as a reminder of the necessity to identify the relevant head of power, and concluded that based on the material before it and the reliance on s 79, no power existed to make the order against B Pty Ltd.

Regarding the costs of the single expert, the Court found that while Rule 15.47 of the *Family Law Rules 2004* generally makes parties equally liable for such costs, the Court has the power under Rule 1.12 to order otherwise. Given the husband's greater control over finances and stronger financial position, the Court ordered that the husband pay the expert's costs at first instance, with an adjustment to be made in the final property settlement to account for this.