Hill and Hill - [2009] FamCA 489

FAMILY COURT OF AUSTRALIA

HILL & HILL

[2009] FamCA 489

FAMILY LAW – PROPERTY – Interim

Family Law Act 1975 (Cth)

Colgate-Palmolive Company & Anor v Cussens Pty Ltd (1993) 46 FCR 225
Harris v Harris (1993) FLC 92‑378
Hickey v Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Kohan (1993) FLC 92-340
Schokke (1996) FLC 92-693

APPLICANT:

Mr Hill

RESPONDENT:

Ms Hill

FILE NUMBER:

DGC

1508

2007

DATE DELIVERED:

1 June 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

1 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. Buchecker

SOLICITOR FOR THE APPLICANT:

Susan Snyder

COUNSEL FOR THE RESPONDENT:

Mr G.R. Atkinson

SOLICITOR FOR THE RESPONDENT:

Henderson & Ball

Orders

That the application in a case filed by the husband on 11 May 2009 be dismissed.
That the response of the wife filed 20 May 2009 be dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That the husband pay the wife’s costs of $3000 thrown away this day within one month.

IT IS NOTED that publication of this judgment under the pseudonym Hill & Hill is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 1508 of 2007

MR HILL

Applicant

And

MS HILL

Respondent

REASONS FOR JUDGMENT

This is an application filed by the husband on 11 May 2009 in which he seeks the payment of two debts which in very rough figures amounts to about $37,000 from a significant sum of money sitting in the husband's solicitor's trust account. The amount sitting in the trust account is about $248,000 and that seems to be the proceeds of the sale of the property that the parties had.
Counsel for the husband described the marriage as a short marriage and on the facts, one might subjectively think that is right. They were married in November 2000 and separated in December 2004. The problem is that I am not really sure what the respective contributions of the parties have been during what might otherwise be described as a relatively short marriage.
What the husband has said is that the wife has had significant use of funds post the separation period by her access to credit cards. There have been a number of affidavits that I have read and relied upon. The wife in her response described the use of the funds as for business purposes. When one looks at the subsequent affidavit in reply of the husband, to some extent that might necessarily be right, but there are also significant other payments set out in a number of pages of an affidavit in which the husband asks me to conclude that they were personal expenditure of the wife. It is not a matter that I can draw conclusions upon where the facts are significantly in dispute.
The parties have a pool of assets somewhere…

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 Hill and Hill

Details

AGLC: Hill and Hill [2009] FamCA 489
Case: [2009] FamCA 489
Decision Date: 1 June 2009

CaseChat Overview and Summary

In *Hill and Hill*, the husband and wife were parties to proceedings before Cronin J in the Family Court of Australia. The nature of the dispute concerned an application filed by the husband and a response filed by the wife, both of which were ultimately dismissed by the court.

The central legal issues before the court were the determination of the applications made by each party. The court was required to consider the merits of the husband's application and the wife's response in order to make a final determination on the matters before it.

Cronin J dismissed both the husband's application and the wife's response. The court further certified that it was reasonable to engage counsel to attend the proceedings, and ordered the husband to pay the wife's costs of $3000 within one month, representing costs thrown away on that day.

Orders

Orders of the court

That the application in a case filed by the husband on 11 May 2009 be dismissed.

That the response of the wife filed 20 May 2009 be dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

That the husband pay the wife’s costs of $3000 thrown away this day within one month.

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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