FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Klinger & Rothmann [2023] FedCFamC2F 1324
File number(s): ADC 4965 of 2022 Judgment of: JUDGE MCGINN Date of judgment: 13 October 2023 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT PROCEEDINGS – Summary dismissal – Final orders made February 2023 – Proposed 79A application – Limited pool – Application allowed in part – Limiting of issues – Interim injunctions – No evidence of realistic risk – Application refused
FAMILY LAW – SECURITY FOR COSTS – Weak case – Order made – Costs of interim application – Just that such order be made for a limited amount
FAMILY LAW – PRACTICE AND PROCEDURE – In relation to case development – Made prior to financial conciliation conference
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Family Law (Fees) Regulations 2012 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Banham & Banham [2021] FamCAFC 132
Colburn & Cleese [2022] FedCFam1A 147
Ebner & Pappas [2014] FamCAFC 229; (2014) FLC 93-619
Fooks and Clark (2004) FLC 93-183
Gong & Zao [2021] FamCAFC 110
Karlsson & Karlsson [2020] FamCAFC 207
Kowaliw & Kowaliw (1981) FLC 91-092
Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251
Luadaka & Luadaka (1998) FLC 92-830
Maxwell & Militiadis [2015] FamCAFC 40; (2015) FLC 93-644
Ritter & Ritter & Anor [2020] FamCAFC 86
Tomaras & Tomaras [2021] FamCAFC 4
Tsiang & Wu and Ors [2019] FamCAFC 128; (2019) FLC 93-911
Warbrick & Warbrick [2021] FamCAFC 60; (2021) FLC 94-016
Division: Division 2 Family Law Number of paragraphs: 150 Date of hearing: 9 October 2023 Place: Adelaide Counsel for the Applicant: Mr Praolini Solicitor for the Applicant: KD & Co Lawyers Counsel for the Respondent: Ms Lewis Solicitor for the Respondent: All Family Law ORDERS
ADC 4965 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KLINGER
Applicant
AND: MS ROTHMANN
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
13 OCTOBER 2023
IT IS ORDERED:
1.That within 7 days the husband file and serve an Amended Initiating Application setting out the orders he seeks pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) in reliance upon s 79A(1)(c) of the Act.
2.That, pursuant to s 192(4) of the Federal Circuit and Family Court Act 2021 (Cth), without leave of the Court first had and obtained, the husband’s claim be limited to that set out in order 1.
3.Pursuant to s 45A of the Act and Rule 10.09 the applicant husband’s applications for orders to be made pursuant to s 79A(1)(a) and s 79(1)(b) of the Act do stand dismissed.
4.Pursuant to s 117 of the Act on or before 4:00pm (Adelaide time), Monday, 22 November 2023 the husband do pay the wife’s costs of…
Continue reading Klinger & Rothmann
Sign in free to access the full text
- AGLC
- Klinger & Rothmann [2023] FedCFamC2F 1324
- Case
- [2023] FedCFamC2F 1324
- Decision Date
CaseChat Overview and Summary
The court had to decide whether certain claims should be summarily dismissed and, if so, whether to limit the applicant's claims to specific grounds. It further considered the merits of interim injunctions in light of the evidence presented and the likelihood of success on the merits. The court also examined whether an order for security for costs should be made given the perceived weakness of the applicant's case and, if so, what amount would be appropriate. Finally, the court was required to address the costs of the interim application and the timing of various procedural steps.
In its reasoning, the court found that the applicant's claims were weak and, as such, ordered that they be limited to certain specified grounds. The court refused interim injunctions on the basis that there was no evidence of a realistic risk of significant harm if such orders were not made. Security for costs was ordered but limited to a specific amount due to the perceived weakness of the case. The costs of the interim application were also addressed, with an order for the applicant to pay a specified sum to the respondent's solicitors' trust account. The court further detailed specific procedural steps, including the amendment of the initiating application, the payment of costs, and the attendance at a financial conciliation conference.
The court's final orders included directives for the applicant to file an amended initiating application, the dismissal of certain claims, the payment of costs, and the provision of various documents and statements in preparation for the financial conciliation conference. The court also stipulated that if certain payments were not made, the applicant's initiating application would be stayed.
Orders
Orders of the court
ADC 4965 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR KLINGER
Applicant
AND:
MS ROTHMANN
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
13 OCTOBER 2023
IT IS ORDERED:
1. That within 7 days the husband file and serve an Amended Initiating Application setting out the orders he seeks pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) in reliance upon s 79A(1)(c) of the Act.
2. That, pursuant to s 192(4) of the Federal Circuit and Family Court Act 2021 (Cth), without leave of the Court first had and obtained, the husband’s claim be limited to that set out in order 1.
3. Pursuant to s 45A of the Act and Rule 10.09 the applicant husband’s applications for orders to be made pursuant to s 79A(1)(a) and s 79(1)(b) of the Act do stand dismissed.
4. Pursuant to s 117 of the Act on or before 4:00pm (Adelaide time), Monday, 22 November 2023 the husband do pay the wife’s costs of the interim proceedings argued before this Court on, Monday, 9 October 2023 in the sum of $3,000, inclusive of GST, to the wife solicitors’ trust account for and on behalf of the wife.
5. Pursuant to s117 of the Act and by way of security for the wife’s costs, that on or before 4;00pm (Adelaide time), 7 December 2023, the husband pay $17,500 into his solicitors’ trust account to be held by way of security for the wife’s costs and to otherwise abide further order of this Court PROVIDED THAT if the husband has no solicitors acting for him at the time of such payment then such payment be made into the wife’s solicitors’ trust account to be held upon the same terms as if the monies had been paid to the husband’s solicitors’ trust account pursuant to this order.
6. Pursuant to Rule 12.03, in the event that the payment referred to in order 5 has not been made in accordance with that order then and in such event the husband’s Initiating Application sealed 26 April 2023 and/or filed pursuant to order 1 be and do stand stayed.
7. For the purposes of the husband openly particularising his position, the husband is to serve, but not file, upon the wife’s solicitor by 4:00pm (Adelaide time), Thursday, 16 November 2023,
(a) a copy of all valuations as at the date of the property settlement orders and at the present time that he intends to rely for the purposes of his application pursuant to s79A(1)(c);
(b) a statement of the amount of “damage’ for each item of property for which the husband says he entitled to claim and identifying the specific documents said to establish such damage and the amount thereof;
(c) a copy of a written calculation of the effect of property orders that he would now seek based upon current valuations indicating what he and the wife would be retaining and the value of each parties’ proposed entitlement; and
(d) a written statement of the name of each witnesses he would be calling at trial of this matter and a summary of the evidence that each witness would be giving.
8. The husband and wife each file and serve by 4:00pm (Adelaide time), Thursday, 16 November 2023, a costs notice and undertaking as to disclosure that comply with the Rules.
9. The parties and their legal representatives attend a financial conciliation conference in this matter on 22 November 2023 at 9:00am (Adelaide time) at the Adelaide Registry of this Court.
10. The husband, unless he obtains an exemption of the financial conciliation conference fee in Accordance with the Family Law (Fees) Regulations 2012 (Cth), is to pay the financial conciliation conference fee by 4:00pm (Adelaide time), 27 October 2023.
11. For the purposes of the conference each party is to provide on or before 4:00pm (Adelaide time), 20 November 2023, to the Court and to each other a Confidential Case Outline (Dispute Resolution), noting that each such document is a confidential without prejudice document for the purpose of the conference only.
12. That all other interim applications whether by way of Initiating Application, Response to the Application or Case Outlines sealed on or before 15 September 2023 do otherwise stand dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.