KLEARCHOS & KLEARCHOS - [2014] FamCA 1049

FAMILY COURT OF AUSTRALIA

KLEARCHOS & KLEARCHOS

[2014] FamCA 1049

FAMILY LAW – COSTS – Interim Costs – Where the wife seeks orders for an interim distribution of $1million or a “dollar by dollar” preliminary costs order to enable her to pay past and anticipated legal costs in the current proceedings – Where the wife makes her application in the alternative under both s 80(1)(h) and s 117 of the Family Law Act 1975 (Cth) – Where the husband opposes the order – Where the wife has been engaged in significant litigation with companies previously associated with the husband – Where the wife has significant outstanding legal fees – Where there is a disparity between the financial circumstances of the wife and those of the husband – Where the husband claims that he does not have the financial capacity to meet the order sought by the wife – Where the husband continues to lead an affluent lifestyle – Where an injustice would occur if the wife was not provided funds to assist her to pay her litigation costs – Where the requirements for the exercise of the Court’s discretion to make an interim costs order pursuant to s 117(2) of the Act are met – Where it is just that an interim costs order be made in favour of the wife on a “dollar by dollar” basis.
FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks an order that the husband pay her interim spousal maintenance in the sum of €10 000 per month – Where the wife has the primary care of the children – Where the wife does not have any capacity to support herself – Where the wife has sold several assets to fund her legal costs – Where the wife does not have any other source of funds – Where the husband had previously paid the wife €10 000 per month – Where the husband reduced his payments to $6000 per month – Where an order is made that the husband pay the wife $AUD10 000 per month.

Family Law Act 1975 (Cth) – s 72(1), s 74(1), s 75, s 79; s 80(h); s 117

Paris King Investments Pty Limited v Rayhill [2006] NSWSC 578
Poletti and Poletti (unreported, Family Court of Australia, 2 March 1990)
Strahan & Strahan (2010) 42 Fam LR 2013
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Zschokke & Zschokke (1996) FLC 92-693; 20 Fam LR 766

APPLICANT:

Ms Klearchos

RESPONDENT:

Mr Klearchos

FILE NUMBER:

SYC

2977

2013

DATE DELIVERED:

13 November 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

5 May 2014 and 1 & 2 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr White (5 May 2014) and Mr Bell (1 & 2 September 2014)

SOLICITOR FOR THE APPLICANT:

Neville & Hourn Legal

COUNSEL FOR THE RESPONDENT:

Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

That pending further order, the husband pay to the wife by way 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.

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Details

AGLC: KLEARCHOS & KLEARCHOS [2014] FamCA 1049
Case: [2014] FamCA 1049
Decision Date: 13 November 2014

CaseChat Overview and Summary

In *Klearchos & Klearchos*, Johnston J of the Family Court of Australia considered an application for spousal maintenance and legal costs. The proceedings involved a husband and wife, with the wife seeking financial support from the husband and an order for the husband to contribute to her legal fees.

The court was required to determine the appropriate quantum of spousal maintenance to be paid by the husband to the wife, and to consider whether an order for the husband to contribute to the wife's legal costs was warranted under section 117(2) of the *Family Law Act 1975* (Cth). The court also needed to specify the method and destination of any such legal cost payments.

Johnston J ordered the husband to pay the wife spousal maintenance of $10,000 per month, commencing from 1 January 2014. Furthermore, pursuant to section 117(2) of the *Family Law Act 1975* (Cth), the husband was ordered to pay to the wife's solicitors' trust account, on a dollar-for-dollar basis with the other respondents, such sums as were collectively paid by the husband and the second, third, and fourth respondents for legal fees. These payments were to be made monthly and were to be used solely for the wife's anticipated legal costs and outlays in the proceedings, with the court to take these payments into account in the substantive proceedings.

Orders

Orders of the court

That pending further order, the husband pay to the wife by way of spousal maintenance the sum of $AUD10,000 per month, commencing from 1 January 2014.

That in addition to the above sum, pursuant to s 117(2) of the Family Law Act 1975 (Cth) the husband pay to the wife such sum as the husband and second, third and fourth respondents (in the substantive proceedings) collectively pay for legal fees on a “dollar by dollar” basis, with payments made monthly.

That the sums referred to in order 2 be paid to the wife’s solicitors’ trust account (Neville and Hourn Legal Trust Account), on account of legal costs and outlays anticipated as being incurred by the wife in these proceedings and to be used solely for such purposes.

That the above payments be taken into account by the Court in the substantive proceedings in such manner as the Court considers appropriate.

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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