HUBER & OVESEN (No.4) - [2019] FCCA 3394

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUBER & OVESEN (No.4)

[2019] FCCA 3394

Catchwords:
FAMILY LAW – Costs.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Act 1999, s.86
Federal Circuit Court Rules 2001, r.21.02 & Schedule 1
Family Law Rules 2004, r.19.01

Cases cited:

Penfold v Penfold (1980) 144 CLR 311
Latoudis v Casey(1990) 170 CLR 534
Brown v Brown [1998] FamCA 115
Collins & Collins (1985) FLC 91-603
Trang & Kingsley (2017) FLC 93-786
D & D (2006) FLC93-256
Robinson & Higginbotham (1991) FLC 92-209
In the Marriage of Murray (1990) FLC 92-173
Browne v Green (2002) FLC 93-115
In the Marriage of Harris (1987) FLC 91-822
Munday v Bowman (1997) FLC 92-784
Kohan & Kohan (1993) FLC 92-340
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (2000) FLC 93-029
JEL & DDF (No.2) (2001) FLC 93-083
Prantage v Prantage [2013] FamCAFC 105
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Braithwaite & Braithwaite [2007] FamCA 468

Applicant:

MR HUBER

Respondent:

MS OVESEN

File Number:

SYC 4336 of 2012

Judgment of:

Judge Kemp

Hearing date:

In Chambers

Date of Last Submission:

29 October 2019

Delivered at:

Sydney

Delivered on:

27 November 2019

REPRESENTATION

Counsel for the Applicant:

Ms Cohen

Counsel for the Respondent:

Mr Friedlander

THE COURT ORDERS THAT:

The wife be granted leave to make an application for costs in this matter.
The husband pay the wife the sum of $7,188.00 within 2 months of the date hereof.
Payment of the sum referred to in order 2 above, be a continuing charge against and on the husband’s member balance in any superannuation fund (including his interest in the Mr Huber Superannuation Fund) until such payment is made in full.
The matter is, otherwise, removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Huber & Ovesen (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4336 of 2012

MR HUBER

Applicant

And

MS OVESEN

Respondent

REASONS FOR JUDGMENT

Introduction

The husband’s Initiating Application in this matter was filed on 29 August 2012. This matter has had a very lengthy history in this Court, as outlined below.

Contravention application

On 10 February 2014, the husband filed a Contravention Application which related to an asserted breach by the respondent wife of a consent order made on 2 September 2013. That order was made when both parties were legally represented and was to the following effect:
That the wife do all things necessary to instruct her accountants to prepare taxation returns and financial statements for her personal self-managed superannuation fund for the years 2010, 2011, 2012 and to pay all moneys to the accountant for release of same within 60 days and provide the returns 2009, 2010, 2011, 2012 to the husband.
The wife had filed a Contravention Application on 2 September 2013 in relation to an asserted breach by the husband of…

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 HUBER & OVESEN (No.4)

Details

AGLC: HUBER & OVESEN (No.4) [2019] FCCA 3394
Case: [2019] FCCA 3394
Decision Date: 27 November 2019

CaseChat Overview and Summary

In *Huber & Ovesen (No.4)*, Judge Kemp of the Family Court of Australia considered an application for costs made by the wife. The dispute concerned the wife's entitlement to an order for costs against the husband.

The central legal issue before the court was whether the wife should be granted leave to make an application for costs, and if so, what order for costs should be made.

Judge Kemp granted the wife leave to make an application for costs. The court ordered the husband to pay the wife the sum of $7,188.00 within two months. This payment was to be a continuing charge against the husband's member balance in any superannuation fund, including his interest in the Mr Huber Superannuation Fund, until fully discharged. The matter was then removed from the active pending cases list.

Orders

Orders of the court

The wife be granted leave to make an application for costs in this matter.

The husband pay the wife the sum of $7,188.00 within 2 months of the date hereof.

Payment of the sum referred to in order 2 above, be a continuing charge against and on the husband’s member balance in any superannuation fund (including his interest in the Mr Huber Superannuation Fund) until such payment is made in full.

The matter is, otherwise, removed from the active pending cases list.

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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