HITCHENS & HITCHENS - [2020] FamCA 423

FAMILY COURT OF AUSTRALIA

HITCHENS & HITCHENS

[2020] FamCA 423

FAMILY LAW – PROPERTY – Where the wife brings an application for litigation funding – Where the Court is not satisfied that an identifiable and available fund or source for the payments sought has been established – Where the Court is also not satisfied that circumstances exist to justify an order for costs under s117 – Where the Application is dismissed

Family Law Act 1975 (Cth) ss 79, 80(1), 117(2)

Esdale & Schenk [2012] FamCA 111
Atkins & Hunt and Ors [2018] FamCA 14

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Zschokke & Zschokke (1996) FLC 92-693
Harris & Harris (1993) FLC 92-378

APPLICANT:

Ms Hitchens

RESPONDENT:

Mr Hitchens

FILE NUMBER:

BRC

8051

2018

DATE DELIVERED:

29 May 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

12 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr D Madsen,
Madsen Law

COUNSEL FOR THE RESPONDENT:

Mr S Williams QC

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson Lawyers

Orders

That the wife’s Application in a Case filed 9 April 2020 for litigation funding be dismissed.
That the parties’ costs of the Application in a Case filed 9 April 2020 be reserved.

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 Hitchens & Hitchens 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 8051 of 2018

Ms Hitchens

Applicant

And

Mr Hitchens

Respondent

REASONS FOR JUDGMENT

Substantive property and parenting proceedings in this matter are set to commence final hearing before me on 29 June 2020. Despite proceedings having been commenced by the husband in July 2018, the wife, with the assistance of recently retained new solicitors, filed an Application in a Case on 9 April 2020 seeking a number of orders, yet relevantly for the purpose of these Reasons, an order that (by an Amended Application in a Case filed 11 May 2020) that:
“10. That the husband pay or in his capacity as director of any entity referred to in order 1 cause to be paid to the wife by way of a partial property settlement the sum of $129,607.98 within 14 days of the date of this order with this payment to be made to Madsen Law, Law Practice Trust Account.
10A. In the alternative to making an interim property order pursuant to Section 79 of the Family Law Act for the sum of $129,607.98, a lump sum interlocutory costs order be made in the wife’s…

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 HITCHENS & HITCHENS

Details

AGLC: HITCHENS & HITCHENS [2020] FamCA 423
Case: [2020] FamCA 423
Decision Date: 29 May 2020

CaseChat Overview and Summary

In *Hitchens & Hitchens*, Baumann J of the Federal Circuit and Family Court of Australia considered an application by the wife for litigation funding. The husband and wife were parties to proceedings concerning property settlement.

The primary legal issue before the court was whether the wife should be granted an order for litigation funding to pursue her property settlement claim. This required the court to assess the merits of her case, her financial position, and the overall justice of the situation.

Baumann J dismissed the wife's application for litigation funding. The court's reasoning, though not detailed in the provided text, would have involved an assessment of the wife's prospects of success in the substantive proceedings and her demonstrated need for financial assistance to pursue them, weighed against the husband's financial position and the overall circumstances of the case. The court reserved the costs of the application, meaning that the question of who should pay the legal costs associated with the litigation funding application would be determined at a later stage.

Orders

Orders of the court

That the wife’s Application in a Case filed 9 April 2020 for litigation funding be dismissed.

That the parties’ costs of the Application in a Case filed 9 April 2020 be reserved.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.