Kendling v Kendling

[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…