Halsted & Baughan

Case [2021] FedCFamC1A 65

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Halsted & Baughan [2021] FedCFamC1A 65

Appeal from: Baughan & Halsted [2021] FCCA 1626
Appeal number(s): SOA 42 of 2021
File number(s): MLC 10907 of 2020
Judgment of: STRICKLAND J
Date of judgment: 16 November 2021
Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – INTERIM ORDERS – Where the applicant asserts that the primary judge fell into error by confusing the requirements of an interim property settlement order made pursuant to s 90SM of the Family Law Act 1975 (Cth) with the requirements of a litigation funding order made as a costs order pursuant to s 117 of the Family Law Act 1975 (Cth) – Where the applicant argues that the primary judge concluding that she was satisfied that there was an “arguable case” erred by effectively determining the application on that basis and failing to consider the reversibility of the interim property settlement order – Where there is no merit in these arguments – Application dismissed.

COSTS – Where the respondent sought an order for costs in the event the application for leave was refused – Where that application was not opposed – Where the applicant has been wholly unsuccessful in her application – Where the disparity in the parties’ financial resources is a factor to be taken into account – Costs ordered in the amount sought by the respondent.
Legislation: Family Law Act 1975 (Cth) s 74, s 79 s 90SM, s 117
Cases cited:

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Lao & Zeng [2021] FedCFamC1A 17

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2011] FamCAFC 126

Zschokke and Zschokke (1996) FLC 92-693; [1996] FamCA 79
Number of paragraphs: 46
Date of hearing: 22 October 2021
Place: Adelaide via Microsoft Teams to Melbourne
Counsel for the Applicant: Dr Ingleby
Solicitor for the Applicant: Lander & Rogers
Counsel for the Respondent: Dr R Smith
Solicitor for the Respondent: Savage & Co Pty Ltd

ORDERS

SOA 42 of 2021
MLC 10907 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS HALSTED

Applicant
AND:

MR BAUGHAN

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

16 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant wife pay the costs of the respondent husband fixed in the sum of $10,729.20.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act

Continue reading Halsted & Baughan

Sign in free to access the full text

Details
AGLC
Halsted & Baughan [2021] FedCFamC1A 65
Case
[2021] FedCFamC1A 65
Decision Date

CaseChat Overview and Summary

The application for leave to appeal in Halsted & Baughan arose from proceedings concerning a de facto relationship that ended in June 2018, after approximately eight years. The husband, having significantly lower net assets than the wife, sought a property settlement calculated on a 70/30 per centum adjustment in the wife’s favour. The wife opposed this application, arguing that due to her substantial initial and ongoing contributions to the relationship, no property settlement should be ordered. Additionally, the husband sought interim property settlement of $45,000 and litigation funding of $80,000, which the wife opposed, in line with her overall position.

The legal issues for the court to decide were whether the primary judge erred in making the interim property settlement order, and if there was sufficient doubt or substantial injustice to warrant the granting of leave to appeal. The wife argued that the primary judge made an interim determination without specifying its application, did not sufficiently distinguish between the requirements for the two separate payments, and did not adequately consider the possibility that the interim orders could not be reversed if the wife was successful at trial. The wife also argued that there would be substantial injustice if she were required to pay $125,000 without the prospect of reclaiming it.

The court found that the wife's arguments lacked merit, particularly in relation to the primary judge's consideration of the capability of correction of the interim orders at trial. The court noted that the primary judge had appropriately considered the requirements for interim orders and found no sufficient doubt in the decision to warrant reconsideration by an appellate court. Consequently, the application for leave to appeal was dismissed. In the circumstances, the husband's application for costs was granted, and the wife ordered to pay $10,729.20.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the application for leave to appeal must be dismissed.BACKGROUND The parties separated in June 2018, having lived in a de facto relationship for some eight years. In these reasons for judgment, for ease of reference, the parties are referred to as husband and wife, despite the fact they were never married. There are no children of the relationship, but both have children from previous relationships. The financial position as between the parties is stark. According to the wife’s Financial Statement filed in May 2021, she had net assets valued at approximately $4.7 million, whereas the husband had net property of approximately $35,000 according to his Financial Statement, also filed in May 2021. On 7 October 2020, the husband commenced the property settlement proceedings in the Federal Circuit Court of Australia, seeking final orders calculated on a 70/30 per centum adjustment of the parties’ net assets in the wife’s favour. On 5 May 2021, the husband applied for an interim property settlement of $45,000 and litigation funding of $80,000. The wife’s overall position in the proceedings is that no orders for property settlement should be made due to her overwhelming contributions, and accordingly, the husband’s application for property settlement should be dismissed. The wife sought the husband’s interim application be dismissed in line with her overall position. It is not in dispute that the wife’s initial financial contributions to the relationship were overwhelming, and included five investment properties. It is also not in dispute that the husband’s initial contributions were relatively minimal. The husband’s case is that during the relationship he made financial contributions, homemaker contributions (including assisting in caring for the wife’s children from time-to-time and caring for the wife during her treatment for breast cancer), and undertook maintenance on the wife’s various investment properties. The wife disputes the extent of the husband’s contributions and the weight to be given to them in light of her overwhelming initial contributions, and contributions made during the de facto relationship, such that it is not just and equitable for there to be any division of the parties’ assets by way of property settlement.THE APPLICATION FOR LEAVE TO APPEAL This being an appeal against interim orders, leave is necessary. The test to be applied in applications for leave to appeal is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692). However, that is a guideline which does not fetter the wide statutory discretion of the court. The wife contends leave to appeal ought be granted, relying on the following: 5. The errors of principle were that the primary judge:(a.)Made an interim determination that it was just and equitable for an order to be made without specifying whether this finding related to an interim or final order;(b.)… omitted consideration (or at the very least gave insignificant weight) to the requirement that an interim order be capable of correction at trial, in circumstances where it was clear that:i. the interim orders could not be reversed if the [wife] was successful at trial; and ii. the [wife] had a serious case to that effect; (c.)Did not sufficiently distinguish the requirements for the 2 separate payments; (d.)and therefore made the part property settlement order, despite such issue [was] required to be determined at a final trial. 6.The injustice is that the [wife] is required to pay sums of money totaling [sic] $125,000 with the prospect that she will never be able to reclaim them.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As to the second alleged error, the answer is again found in the plain and appropriate language of [56] and [57], and it is unnecessary to respond further to this issue. It too has no merit.CONCLUSION Having found no merit in any of the grounds of appeal, there is no basis to grant leave to appeal as the decision is not attended by sufficient doubt, and the application must be dismissed. COSTS The husband sought an order for costs in the event the application for leave was refused. The amount sought was $10,729.20. The application was not opposed by the wife in the event that leave to appeal was refused. An order for costs is appropriate given the wife has been wholly unsuccessful in her application (s 117(2A)(e) of the Act), and the disparity in the parties’ financial resources. Thus, there will be an order as sought by the husband.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.