Kehoe & Seden (No 4) - [2023] FedCFamC1F 753

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kehoe & Seden (No 4) [2023] FedCFamC1F 753

File number(s): SYC 7833 of 2018

Judgment of: HARPER J

Date of judgment: 1 September 2023

Catchwords: FAMILY LAW – PROPERTY – INTERIM PROPERTY – Where wife seeks compliance with previous orders – Where wife seeks payment by husband of outstanding single expert fees – Where estimated single expert fees are substantial – Where consent orders were previously made requiring husband to meet the costs of the single experts in the first instance – Where wife to reimburse husband for her share of the single expert fees from final property adjustment – Where husband seeks to discharge consent orders – Where husband claimed he no longer had the financial resources to pay the single expert fees – Where husband did not satisfy the Court that consent orders made four months previously should be discharged – Where the wife seeks payment of interim costs in the amount of $500,000 or a dollar for dollar costs order – Where husband claimed he no longer had financial resources to pay interim costs to the wife – Where husband previous received significant financial assistance from the second respondent – Where husband and second respondent argued the second respondent would no longer provide husband with financial support – Husband and second respondent directors of trustee of testamentary trust – where testamentary trust has lent husband substantial funds since 2017 - Where Court satisfied husband has sufficient access to funds to pay single expert fees and a dollar for dollar order in favour of wife – Consent order not discharged – Dollar for dollar order made in favour of wife.

Legislation:
Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67(1), 67(2), 68

Cases cited:
Bing and Bing (2007) FLC 93-318; [2007] FamCA 418

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Kehoe & Seden (No 2) [2022] FedCFamC1F 346

Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

Poletti & Poletti (1990) 15 Fam LR 794; [1990] FamCA 79

Seden & Kehoe [2020] FamCAFC 294

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

Division: Division 1 First Instance

Number of paragraphs: 46

Date of hearing: 26 July 2023

Place: Sydney

Counsel for the Applicant: Mr Kearney SC

Solicitor for the Applicant: Rubn Blight Hardy Family Lawyers & Mediators

Counsel for the First Respondent: Mr Bennett

Solicitor for the First Respondent: Coleman Greig Lawyers

Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Respondents: Ms Jeliba

Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Respondents: Barkus Doolan Winning
ORDERS

SYC 7833 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KEHOE

Applicant

AND:
MR SEDEN

First Respondent

MS G SEDEN

Second Respondent

SEDEN GROUP HOLDINGS PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

HARPER J

DATE…

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 Kehoe & Seden (No 4)

Details

AGLC: Kehoe & Seden (No 4) [2023] FedCFamC1F 753
Case: [2023] FedCFamC1F 753
Decision Date

CaseChat Overview and Summary

The case of Kehoe & Seden (No 4) involved the husband and wife, who were engaged in a lengthy and costly legal dispute. The primary issue in this case was the amount of costs already incurred by both parties, which was deemed excessive relative to the complexity of the issues at hand. Additionally, the court had to determine whether the husband could borrow sufficient funds from a testamentary trust to meet his obligations under a spouse maintenance order, including the payment of expert fees for the wife. The court also needed to decide on the appropriate method of cost allocation between the parties.

The court addressed these issues by first acknowledging the significant financial burden the proceedings had placed on both parties. It was noted that any further delay would only exacerbate the situation, which would be inconsistent with the overarching purpose of the legal system. The court then turned to the question of the husband's ability to borrow from the testamentary trust. After reviewing the husband's evidence, the court found that it was more likely than not that the trust would lend him sufficient funds to meet his maintenance obligations. However, the court did not accept the husband's claim that the trust could lend him as much as $500,000 to cover the wife's interim costs and expert fees. Consequently, the court ruled that the husband must comply with the existing order to pay the expert fees. The court also decided that a dollar-for-dollar costs order was more appropriate than a lump sum payment of $500,000 for the wife's interim costs.

In conclusion, the court ordered that the husband must adhere to the existing obligation to pay the expert fees. It also ruled that the wife's proposed dollar-for-dollar costs order was more suitable than a lump sum payment of $500,000 for her interim costs. This decision aimed to balance the financial implications of the proceedings with the need to ensure that the husband's obligations were met in a fair and reasonable manner.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The amount of costs already expended by the parties in these proceedings is enormous. It is not self-evident that these costs are proportionate to the complexity of the issues in dispute, but this is a question which cannot yet be answered with any clarity. However, any delay in the finalisation of the proceedings is likely to increase costs, which itself is inconsistent with the objectives of the overarching purpose, especially when viewed against the maters mentioned in the previous paragraph.CONCLUSION The husband’s evidence satisfies me that the Testamentary Trust is more likely than not to lend him sufficient funds to continue to meet his spouse maintenance obligations. The more difficult question is whether the trust is in a position to lend him as substantial an amount as $500,000 for the wife’s interim costs and to meet the payment of expert’s fees, which together would total about $800,000. I do not consider that the husband has demonstrated a sufficient basis to discharge the existing order for him to meet the expert fees. He must comply with that order. In the circumstances and at this stage of the proceedings, the wife’s proposed dollar for dollar costs order is more appropriate than ordering a lump sum payment of $500,000 for her interim costs. I will make such an order.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 7833 of 2018
Judgment of:	HARPER J
Date of judgment:	1 September 2023
Catchwords:	FAMILY LAW – PROPERTY – INTERIM PROPERTY – Where wife seeks compliance with previous orders – Where wife seeks payment by husband of outstanding single expert fees – Where estimated single expert fees are substantial – Where consent orders were previously made requiring husband to meet the costs of the single experts in the first instance – Where wife to reimburse husband for her share of the single expert fees from final property adjustment – Where husband seeks to discharge consent orders – Where husband claimed he no longer had the financial resources to pay the single expert fees – Where husband did not satisfy the Court that consent orders made four months previously should be discharged – Where the wife seeks payment of interim costs in the amount of $500,000 or a dollar for dollar costs order – Where husband claimed he no longer had financial resources to pay interim costs to the wife – Where husband previous received significant financial assistance from the second respondent – Where husband and second respondent argued the second respondent would no longer provide husband with financial support – Husband and second respondent directors of trustee of testamentary trust – where testamentary trust has lent husband substantial funds since 2017 - Where Court satisfied husband has sufficient access to funds to pay single expert fees and a dollar for dollar order in favour of wife – Consent order not discharged – Dollar for dollar order made in favour of wife.
Legislation:	Family Law Act 1975 (Cth) Pt VIII Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67(1), 67(2), 68
Cases cited:	Bing and Bing (2007) FLC 93-318; [2007] FamCA 418 Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 Kehoe & Seden (No 2) [2022] FedCFamC1F 346 Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56 Poletti & Poletti (1990) 15 Fam LR 794; [1990] FamCA 79 Seden & Kehoe [2020] FamCAFC 294 Salvage and Fosse (2020) FLC 93-966; [2020] FamCAFC 144
Division:	Division 1 First Instance
Number of paragraphs:	46
Date of hearing:	26 July 2023
Place:	Sydney
Counsel for the Applicant:	Mr Kearney SC
Solicitor for the Applicant:	Rubn Blight Hardy Family Lawyers & Mediators
Counsel for the First Respondent:	Mr Bennett
Solicitor for the First Respondent:	Coleman Greig Lawyers
Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Respondents:	Ms Jeliba
Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Respondents:	Barkus Doolan Winning

SYC 7833 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KEHOE Applicant
AND:	MR SEDEN First Respondent MS G SEDEN Second Respondent SEDEN GROUP HOLDINGS PTY LTD (and others named in the Schedule) Third Respondent