KNIGHT & ELLINGTON

Case [2018] FamCA 892


FAMILY COURT OF AUSTRALIA

KNIGHT & ELLINGTON [2018] FamCA 892

FAMILY LAW – SUMMARY DISMISSAL – Wife’s application to summarily dismiss husband’s s 79A Application – Where the Full Court has held that the only material to be relied upon in such applications is the material put forward by the respondent – Where the husband’s s 79A Application is not doomed to fail and is not frivolous or vexatious – Application dismissed.

FAMILY LAW – SECURITY FOR COSTS – Wife alternatively sought security for costs in the sum of $50,000 from the husband – Matters identified by the Full Court in Luadaka & Luadaka (1998) FLC 92-830 considered – the weight of the considerations favour there being no order for security for costs – Application dismissed.

Family Law Act 1975 (Cth) ss 79A, 117

Family Law Rules 2004 r 10.12

Pelerman (2000) FLC 93-037

Bigg v Suzi (1998) FLC 92-799
Beck & Beck (2004) FLC 93-181
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Gadde & Gadde [2015] FamCA 617
Ricci & Jones [2011] FamCAFC 222
Finch & Finch [2013] FamCA 567
Dunnett & Dunnett [2013] FamCA 529
Luadaka & Luadaka (1998) FLC 92-830
Richards and Duff [2001] FamCA 177
Lan & Hao [2015] FamCA 1149

APPLICANT: Mr Knight
RESPONDENT: Ms Ellington
FILE NUMBER: CSC 677 of 2007
DATE DELIVERED: 5 November 2018
PLACE DELIVERED: Cairns
PLACE HEARD: Melbourne
JUDGMENT OF: Tree J
HEARING DATE: 2 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson
SOLICITORS FOR THE APPLICANT: Vernon Da Gama & Associates
COUNSEL FOR THE RESPONDENT: Dr Ingleby
SOLICITORS FOR THE RESPONDENT: Berger Kordos Lawyers

Orders

  1. The Application in a Case filed by the wife on 2 August 2018 is dismissed. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Knight & Ellington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: CSC677/2007

Mr Knight

Applicant

And

Ms Ellington

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

  1. By Initiating Application filed 11 August 2017, Mr Knight (“the husband”) sought orders under s 79A of the Family Law Act, varying earlier consent orders made under s 79 of the Act, which effected a final division of the parties’ matrimonial property.  By her Response filed 3 October 2017, Ms Ellington (“the wife”) seeks that the husband’s Initiating Application be dismissed.

  2. On 8 May 2018 the court advised the parties that a Trial Management Hearing, at which the matter would be readied for trial, would be conducted on…

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KNIGHT & ELLINGTON [2018] FamCA 892
Case
[2018] FamCA 892
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the wife sought the summary dismissal of the husband's application under section 79A of the *Family Law Act 1975* (Cth). The wife also alternatively sought an order for security for costs against the husband.

The primary legal issue before the Court was whether the husband's section 79A application was so lacking in merit that it should be summarily dismissed. The secondary issue was whether the husband should be ordered to provide security for the wife's costs, and if so, in what amount.

Her Honour considered the Full Court's guidance that in summary dismissal applications, only the material put forward by the respondent (in this instance, the husband) should be relied upon. Applying this principle, the Court found that the husband's section 79A application was not doomed to fail, nor was it frivolous or vexatious. Consequently, the wife's application for summary dismissal was dismissed. Regarding the alternative application for security for costs, the Court considered the relevant factors outlined in *Luadaka & Luadaka* (1998) FLC 92-830 and determined that the weight of these considerations favoured no order being made. Therefore, the wife's application for security for costs was also dismissed.

The Court ordered that the wife's Application in a Case filed on 2 August 2018 be dismissed.

Orders

Orders of the court

1.

The Application in a Case filed by the wife on 2 August 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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