HOLLAND & HOLLAND - [2015] FCCA 1207

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLLAND & HOLLAND

[2015] FCCA 1207

Catchwords:
FAMILY LAW – SPOUSAL MAINTENANCE – Application in a Case – Urgent Maintenance – interim maintenance – urgent spousal maintenance – whether immediate need for financial assistance – where applicant has not shown an immediate need of financial assistance – where no evidence of the respondent’s capacity to pay.

FAMILY LAW – SPOUSAL MAINTENANCE – Application for an order of a lump sum to defray anticipated legal costs – where no evidence of likely legal costs – where no evidence of fund from which lump sum could be paid – no evidence of capacity to pay.

FAMILY LAW – PROPERTY – Declaration – where applicant claims that a truck in the possession of the respondent is her property – where respondent in his affidavit concedes that the vehicle is the property of the applicant.

PRACTICE AND PROCEDURE – Conduct of the parties to the litigation – unexplained delay by respondent in filing and serving Response, affidavit and Financial Statement – affidavits in reply filed by applicant without leave of the Court.

COSTS – Where neither party wholly unsuccessful – conduct of the parties to the proceedings in relation to the proceedings generally – parties to pay their own costs.

Legislation:

Family Law Act 1975 (Cth), ss.72, 74, 77, 78, 79, 117

Federal Circuit Court Rules 2001, r.4.03

Cases cited:
Celestin & Celestin [2011] FamCA 74
Chapman & Chapman (1979) FLC 90-671
Geston & Geston [2011] FMCAfam 1418
Grimshaw-Grieves & Grieves [2011] FMCAfam 125
Gylseth & Bates [2010] FMCAfam 794
Gyopar & Gyopar (1986) FLC 91-679
Kennon & Kennon (1997) 22 Fam LR 1; FLC 92-757
Kowalski & Kowalski (1993) FLC 92-342
Malcolm & Malcolm (1977) FLC 90-220
Moloney & Beams [2013] FCCA 85
Redman & Redman (1987) FLC 91-805
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166; (2009) 242 FLR 1; (2011) FLC 93-466

Applicant:

MS HOLLAND

Respondent:

MR HOLLAND

File Number:

SYC 4984 of 2014

Judgment of:

Judge Scarlett

Hearing date:

31 October 2014

Date of Last Submission:

31 October 2014

Delivered at:

Sydney

Delivered on:

11 May 2015

REPRESENTATION

Solicitor for the Applicant:

Mr Sher

Solicitors for the Applicant:

Drayton Sher Lawyers

Counsel for the Respondent:

Mr Ahmad

Solicitors for the Respondent:

Nadeem Lawyers

ORDERS

The Applicant is refused leave to rely on the following affidavits:
(a)The affidavit of the Applicant affirmed on 29 October 2014;
(b)The affidavit of Y affirmed on 29 October 2014; and
(c)The affidavit of X affirmed on 29 October 2014.
The Respondent is refused leave to rely on his affidavit affirmed on 30 October 2014.
The Applicant is declared to be the sole owner of unregistered Mitsubishi (omitted) truck (omitted) currently in the possession of the Respondent.
The Respondent must deliver up to the Applicant the said Mitsubishi (omitted) truck referred to in Order (3) above within seven (7) days of this Order.
The Application in a Case filed on 10 October 2014 is otherwise dismissed.
The…

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 HOLLAND & HOLLAND

Details

AGLC: HOLLAND & HOLLAND [2015] FCCA 1207
Case: [2015] FCCA 1207
Decision Date: 11 May 2015

CaseChat Overview and Summary

In *Holland & Holland*, heard by Judge Scarlett, the applicant sought urgent spousal maintenance, a lump sum to defray anticipated legal costs, and a declaration of ownership over a truck in the respondent's possession. The respondent had failed to file and serve his response, affidavit, and financial statement in a timely manner, and the applicant had filed affidavits in reply without leave.

The court was required to determine whether the applicant had demonstrated an immediate need for financial assistance for spousal maintenance and whether there was evidence of the respondent's capacity to pay. It also needed to consider the application for a lump sum for legal costs, specifically whether there was evidence of the likely costs and the respondent's capacity to pay such a sum. Furthermore, the court had to address the applicant's claim of ownership of the truck.

Judge Scarlett reasoned that the applicant had not shown an immediate need for financial assistance for spousal maintenance, nor had she provided evidence of the respondent's capacity to pay. Similarly, the application for a lump sum for legal costs failed due to a lack of evidence regarding the anticipated costs and the respondent's ability to pay. However, the respondent conceded in his affidavit that the truck in his possession was the property of the applicant.

Consequently, the court refused the applicant leave to rely on certain affidavits and refused the respondent leave to rely on his affidavit. The applicant was declared the sole owner of the truck, and the respondent was ordered to deliver it up to the applicant within seven days. The remainder of the application in a case was dismissed. Given that neither party was wholly successful and considering the conduct of the parties, the court ordered that each party was to pay their own costs.

Orders

Orders of the court

The Applicant is refused leave to rely on the following affidavits:

(a) The affidavit of the Applicant affirmed on 29 October 2014;

(b) The affidavit of Y affirmed on 29 October 2014; and

The Respondent is refused leave to rely on his affidavit affirmed on 30 October 2014.

The Applicant is declared to be the sole owner of unregistered Mitsubishi (omitted) truck (omitted) currently in the possession of the Respondent.

The Respondent must deliver up to the Applicant the said Mitsubishi (omitted) truck referred to in Order (3) above within seven (7) days of this Order.

The Application in a Case filed on 10 October 2014 is otherwise dismissed.

The parties are to pay their own costs.

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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