Kendling v Kendling

Case [2008] FamCAFC 70


FAMILY COURT OF AUSTRALIA

KENDLING & KENDLING [2008] FamCAFC 70

FAMILY LAW – APPEAL - APPLICATION FOR LEAVE TO APPEAL – Allowed.

FAMILY LAW - APPEAL – INTERIM PAYMENT ON ACCOUNT OF COSTS IN PROPERTY SETTLEMENT PROCEEDINGS – Where the trial Judge made orders that the husband pay an amount into the trust account of the solicitors for the wife to be used on account of the costs incurred by the wife in property settlement proceedings between the parties – Where the trial Judge had made similar orders eight months earlier – Where the trial Judge was satisfied that the wife would eventually receive property in excess of the funds to be advanced to her by the husband on account of costs – Whether the trial Judge erred in making the subsequent orders in circumstances where the previous orders were asserted to cover all future costs of the wife – Whether the trial Judge failed to follow the principles in Poletti & Poletti – Whether the trial Judge erred in making the orders for further funding in circumstances where the wife was asserted to have failed to adduce evidence of how the funds previously provided had been expended – Whether trial Judge erred in failing to provide adequate reasons in relation to the wife’s expenditure of the previous funds – Whether the trial Judge erred in failing to find that the wife’s costs were excessive – Whether the trial Judge erred in failing to require the wife to produce an itemised bill of costs – Whether the trial Judge erred in not requiring the wife’s costs to be at scale or taxed – Whether the orders were contrary to the decision in Chester & Chester – Whether the trial Judge erred in relying on an amount that the husband had proposed that the wife would receive by way of property settlement to support the further advance to the wife – Whether the trial Judge erred in failing to determine that the wife had the means to borrow to fund her own litigation – No substance in the grounds of appeal – Appeal allowed only to the extent necessary to modify existing injunctions in order to permit the husband to raise the funds required to be paid to the wife.

FAMILY LAW – APPEAL - APPLICATIONS TO ADDUCE FURTHER EVIDENCE – Refused.

FAMILY LAW - COSTS – That the husband pay the costs of the wife of the application for leave to appeal and the appeal, having regard to her overall success.

Family Law Act 1975 (Cth)
Family Law Rules 2004
Poletti & Poletti (unreported, Family Court of Australia, Nygh J, 2 March 1990)
Poletti & Poletti (1991-2) 15 Fam LR 794
Luadaka & Luadaka (1998) FLC 92-830
Zschokke & Zschokke (1996) FLC 92-693; (1996) FamLR 275
Chester & Chester (1995) FLC 92-612; (1995) 19 Fam LR 281
Wilson & Wilson (1989) FLC 92-033; (1989) 13 Fam LR 205
Breen & Breen (1990) 65 ALJR 195
CDJ v VAJ (1998) 197…

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Details
AGLC
Kendling v Kendling [2008] FamCAFC 70
Case
[2008] FamCAFC 70
Decision Date

CaseChat Overview and Summary

The case of Kendling v Kendling involved an appeal by the husband against several orders made by the trial Judge in relation to a property settlement dispute. The husband argued that the trial Judge had erred in making certain orders for the payment of costs to the wife, including making orders for further funding after having already made similar orders eight months prior. The husband further contended that the trial Judge had failed to follow relevant principles and had not provided adequate reasons for the orders. The wife, on the other hand, maintained that the orders were appropriate and within the trial Judge's discretion.

The legal issues that the court had to decide included whether the trial Judge had erred in making the subsequent orders for funding, whether the trial Judge had failed to consider the principles in Poletti & Poletti, whether the trial Judge had erred in not requiring the wife to provide an itemised bill of costs, and whether the orders were consistent with the decision in Chester & Chester. The court also considered whether the trial Judge had erred in relying on a proposed amount for the property settlement to support the further advance to the wife, and whether the trial Judge had failed to determine that the wife had the means to borrow to fund her own litigation.

The court found that there was no substance in the husband's grounds of appeal, but allowed the appeal to the extent necessary to modify existing injunctions in order to permit the husband to raise the funds required to be paid to the wife. The court held that the trial Judge had not erred in making the orders for further funding, and that the orders were consistent with the decision in Chester & Chester. The court also found that the trial Judge had not failed to follow the principles in Poletti & Poletti, and that there was no need for the wife to provide an itemised bill of costs. The court dismissed the applications to adduce further evidence and ordered the husband to pay the wife's costs of and incidental to the application for leave to appeal and appeal.

Orders

Orders of the court

1.

That the application for leave to appeal be allowed.

2.

That the appeal be allowed to the extent necessary to add the following order to the orders made on 25 January 2008:

5. That Orders 9, 11, and 12 of the Orders made on 27 September 2007 shall be modified only to the limited extent that the Husband may borrow and [B] Limited may lend to the Husband funds for the exclusive purpose of satisfying the orders made by the Honourable Justice O’Ryan on 25 January 2008.

3.

That the appeal be otherwise dismissed.

4.

That the applications of both parties to adduce further evidence be dismissed.

5.

That the husband pay the wife’s costs of and incidental to the application for leave to appeal and appeal (with such costs to be assessed in default of agreement).

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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