Kramer & Kramer - [2023] FedCFamC2F 221

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kramer & Kramer [2023] FedCFamC2F 221

File number(s): ADC 1303 of 2022

Judgment of: JUDGE DICKSON

Date of judgment: 3 March 2023

Catchwords: FAMILY LAW – PROPERTY – LITIGATION FUNDING – interim proceedings – provision of funds held in trust for litigation expenses – application of costs power under section 117 – where the wife seeks a sum of $120,000 on account of legal costs and disbursements – where the husband seeks that each party receive $50,000 for the same – where the wife has failed to provide evidence of Retainer Agreement with her solicitors – where the wife has failed to properly plead the final orders sought at Trial – review of authorities – held, that the amount sought by the wife is not just- orders for litigation expenses made as sought by the husband.

Legislation: Family Law Act 1975 (Cth) ss 79, 117

Cases cited:
Atkins & Hunt [2018] FamCA 14

Charisteas & Charisteas [2022] FedCFamC1A 160

In the Marriage of Zschokke (1996) 20 Fam LR 766

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578

Quayle v Perceval [2018] FamCA 664

Rakete & Rakete [2012] FamCA 267

Salvage & Fosse [2020] FamCAFC 144

Selena & Montez and Ors [2017] FamCA 583

Strahan v Strahan (2009) 42 Fam LR 203

Verdon & Verdon [2020] FamCA 824

Division: Division 2 Family Law

Number of paragraphs: 62

Date of hearing: 21 February 2023

Place: Adelaide

Counsel for the Applicant: Mr Heinrich

Solicitor for the Applicant: Mildwaters Lawyers

Counsel for the Respondent: Mrs Read

Solicitor for the Respondent: Lindbloms Lawyers
ORDERS

ADC 1303 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KRAMER

Applicant

AND:
MR KRAMER

Respondent

order made by:

JUDGE DICKSON

DATE OF ORDER:

3 MARCH 2023

UPON NOTING:
A.The matter has been transferred to Division 1 on the basis that if the matter proceeds to final hearing, it is likely that it would take more than four (4) days of hearing time.
B.The parties will be contacted directly by the National Assessment Team confirming the transfer of proceedings and the next listing date.
C.The parties are in agreement that the sums referred to in paragraphs 1 and 2 herein are to be brought to account as assets to be retained by each of them at Trial.

THE COURT ORDERS:
1.That pursuant to section 117 of the Family Law Act 1975 (Cth) (‘the Act’) from the funds currently held in the Lindbloms Lawyers Trust Account pursuant to paragraph 1 of the Orders made by this Honourable Court on 1 February 2023, the sum of $50,000 be made available to the wife to be applied towards her legal costs and disbursements associated with these proceedings.

THE COURT FURTHER ORDERS BY CONSENT:
2.That pursuant to section 117 of the Act from the funds currently held in the Lindbloms Lawyers Trust Account pursuant to paragraph 1 of the Orders made by this Honourable Court on 1 February 2023,…

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.

Continue reading Kramer & Kramer

Details

AGLC: Kramer & Kramer [2023] FedCFamC2F 221
Case: [2023] FedCFamC2F 221
Decision Date

CaseChat Overview and Summary

The interim proceedings in Kramer & Kramer concerned competing applications filed by the parties in relation to litigation funding, injunctions, and discovery. The matter came before Judge Dickson of the Federal Circuit and Family Court of Australia (Division 2) for argument on 21 February 2023. The primary issue before the Court was whether the wife should be granted $120,000 for litigation funding or whether $50,000, as sought by the husband, would be sufficient. The Court found that the amount sought by the wife was not "just" in all the circumstances, primarily due to the absence of a Retainer Agreement setting out the terms upon which her solicitors would continue to act. Additionally, the Court could not assess the merit of the wife's case as her final orders sought were unenforceable. Consequently, the Court ordered that $50,000 be made available to the wife for her legal costs and disbursements, with a further $50,000 to be made available to the husband for the same purpose. The Court also transferred the proceedings to Division 1 of the Federal Circuit and Family Court of Australia, given that any trial in this matter would likely exceed four days.

Orders