KUNTI & KOHL - [2016] FamCA 448

FAMILY COURT OF AUSTRALIA

KUNTI & KOHL

[2016] FamCA 448

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings – Transfer from Family Court of Australia to Federal Circuit Court of Australia.

FAMILY LAW – COSTS – Where husband made an application objecting to the Court’s jurisdiction – Where the husband subsequently withdrew the application at the hearing and the application was dismissed – Where the husband required the wife be available for cross-examination and the wife travelled from India for that purpose – Consideration of s 117 of the Family Law Act 1975 (Cth) – Husband ordered to pay the wife’s costs of and incidental to his Application in a Case and the wife’s costs incurred in travelling to Australia.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 11.18

Forster & Beckett [2015] FamCA 140
Hawkins & Roe [2012] FamCAFC 77
Penfold v Penfold (1980) 144 CLR 311

APPLICANT:

Ms Kunti

RESPONDENT:

Mr Kohl

FILE NUMBER:

SYC

2222

2014

DATE DELIVERED:

7 June 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

27 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Flanigan

SOLICITOR FOR THE APPLICANT:

Hammond Nguyen Turnbull

COUNSEL FOR THE RESPONDENT:

Ms Cantrall

SOLICITOR FOR THE RESPONDENT:

Walker Kissane & Plummer Solicitors

Orders

That these proceedings be transferred to the Federal Circuit Court of Australia to be listed before a judge in a duty list on a date to be advised.
That the husband pay the wife’s costs of and incidental to his application in a case filed on 10 December 2015 as agreed within one month from this date or otherwise as assessed.
That the husband pay to the wife within one month from today’s date the sum of $1500.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 2222 of 2014

Ms Kunti

Applicant

And

Mr Kohl

Respondent

REASONS FOR JUDGMENT

On 13 September 2014 the applicant wife and respondent husband in these proceedings were divorced.
On 8 September 2015 the wife commenced proceedings in this Court for orders as to property settlement. The orders sought by her in summary were orders seeking the sale of a property owned by the husband and wife in joint names at Suburb B, New South Wales with substantially a division of the net proceeds of sale equally to the husband and wife.
The husband has yet to file a response to the wife’s application for property settlement orders.
On 10 December 2015 the husband filed an Application in a Case seeking orders that the wife’s application for property settlement orders be dismissed and that she pay costs on an indemnity basis. That Application in a Case was amended on 23 May 2016 so as to seek in the alternative an order that…

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 KUNTI & KOHL

Details

AGLC: KUNTI & KOHL [2016] FamCA 448
Case: [2016] FamCA 448
Decision Date: 7 June 2016

CaseChat Overview and Summary

In the matter of Kunti & Kohl, Foster J of the Family Court of Australia considered an application for the transfer of proceedings and an application for costs. The dispute involved a husband who had raised an objection to the Court's jurisdiction, an application which he subsequently withdrew during the hearing. The wife had travelled from India to attend the hearing for the purpose of being cross-examined by the husband.

The primary legal issues before the Court were whether the proceedings should be transferred from the Family Court of Australia to the Federal Circuit Court of Australia, and whether the husband should be ordered to pay the wife's costs, particularly in light of his withdrawn jurisdictional objection and the wife's travel expenses. The Court was required to consider the application of section 117 of the *Family Law Act 1975* (Cth) in relation to the costs order.

Foster J reasoned that the proceedings were appropriate for transfer to the Federal Circuit Court, ordering that the matter be listed before a judge in a duty list. Regarding costs, the Court found that the husband should bear the costs of and incidental to his application filed on 10 December 2015, given its withdrawal at the hearing. Furthermore, the Court ordered the husband to pay the wife's costs incurred in travelling to Australia for the hearing, specifically awarding a sum of $1500 for these expenses.

Orders

Orders of the court

That these proceedings be transferred to the Federal Circuit Court of Australia to be listed before a judge in a duty list on a date to be advised.

That the husband pay the wife’s costs of and incidental to his application in a case filed on 10 December 2015 as agreed within one month from this date or otherwise as assessed.

That the husband pay to the wife within one month from today’s date the sum of $1500.

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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