Klearchos & Klearchos & Ors

[2015] FamCAFC 217

FAMILY COURT OF AUSTRALIA

KLEARCHOS & KLEARCHOS AND ORS [2015] FamCAFC 217

FAMILY LAW  – APPEAL  – LEAVE TO APPEAL – Where the husband seeks leave to appeal against interim spousal maintenance orders – Where the wife sought that certain companies under the control of the husband be joined to the proceedings – Where the husband seeks leave to appeal against an order to fund the costs of the wife’s litigation in such sum as the husband and second, third and fourth respondents collectively pay for legal fees on a “dollar by dollar” basis – Where the wife is liable for an unusually high level of legal costs – Where the trial judge found that the husband is in a position of relative financial strength compared with that of the wife – Where the wife failed to disclose the source of the funds used by her to pay her legal fees – Where the trial judge could not know the impact of the litigation funding order on the husband’s finances as there was no evidence of the legal costs likely to be incurred – Where there was insufficient evidence before the trial judge to satisfy him that the husband could pay the ordered spousal maintenance – Appeal allowed.

FAMILY LAW  – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the evidence sought to be adduced may have produced a different result had it been available at trial – Where the evidence relates to the wife’s non-disclosure of her financial position – Where, had his Honour had the further evidence of her failure to disclose certain income, he may have come to a different conclusion about the wife’s capacity to fund her own legal costs and her need for spousal maintenance – Application allowed.

Family Law Act 1975 (Cth) ss 117, 117 (1), 117(2A), 117(2A)(a), 117(2A)(c)
Federal Proceedings (Costs) Act 1981 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Gronow & Gronow (1979) 144 CLR 513

APPELLANT: Mr Klearchos

FIRST RESPONDENT: Ms Klearchos

SECOND RESPONDENT: Q Pty Limited

THIRD RESPONDENT: E Pty Limited

FOURTH RESPONDENT: R Pty Limited

FILE NUMBER: SYC 2977 of 2013

APPEAL NUMBER: EA 155 of 2014

DATE DELIVERED: 17 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Finn, Ainslie-Wallace & Kent JJ

HEARING DATE: 18 March 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 13 November 2014

LOWER COURT MNC: [2014] FamCA 1049

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lloyd SC

SOLICITOR FOR THE APPELLANT: Barkus Doolan

COUNSEL FOR THE FIRST RESPONDENT: Mr R S Bell

SOLICITOR FOR THE FIRST RESPONDENT: Neville & Hourn Legal

COUNSEL FOR THE SECOND, THIRD & FOURTH  RESPONDENTS: Mr Connor

SOLICITOR FOR THE SECOND, THIRD & FOURTH  RESPONDENTS: Argyle Legal

Orders

ORDERS made on 18 March 2015:

1. Leave is granted to the appellant husband to rely on an Amended Notice of Appeal filed on 25 February 2015.

ORDERS:

1. Leave is granted to the appellant husband to appeal against the orders of the Honourable Justice Johnston…