FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAKE & AINSLEY | [2017] FCCA 2109 |
| Catchwords: FAMILY LAW – Costs following successful application to set aside Binding Financial Agreement – Costs reserved. |
| Legislation: Family Law Act 1975, ss.79, 117 Federal Circuit Court Rules 2001, rr. 21.02, 21.03 |
| Cases cited: Hawkins v Roe [2012] FAM CAFC 77 Kay & Kay & Anor [2017] FCCA 515 |
| Applicant: | MR LAKE |
| Respondent: | MS AINSLEY |
| File Number: | WOC 790 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 18 May 2017 |
| Date of Last Submission: | 18 May 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 8 September 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Rebecca Bailey & Associates |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Kells The Lawyers |
ORDERS
The Applicant’s costs in the amount of $23,315.00 are reserved.
The matter be stood over to the 3 day Final Hearing commencing on 12 February 2018 at 10.00am.
Both parties file and serve any Amended Application / Response / Financial Statement upon which they intend to rely by no later than 19 January 2018.
Each party is to file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witness’s affidavits by no later than 19 January 2018.
Neither party may rely on any documents filed after 19 January 2018 without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.
Each party is to file and serve a Case Outline document by no later than 4:00pm on 5 February 2017, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought;
(c)a list of objections to evidence and the basis for such objection;
(d)a brief summary of argument setting out:
(i)the party’s contention as to the percentage contribution based entitlement asserted and the evidence relied on;
(ii)the party’s contention as to any s.75(2) percentage adjustment sought, the factors in s.75(2) relied on and the evidence relied on;
(e)a joint balance sheet, identifying the agreed and not agreed values of the pool of assets;
(f)a draft of the order sought to give effect to the overall entitlement asserted.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.
Both parties are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.
THE COURT NOTES THAT:
A.A party’s trial Affidavits will not be read until the Case Outline document has been filed and served in accordance with these directions, which may result in the Final Hearing dates being vacated, other matters being listed with priority, or the matter becoming part-heard.
IT IS NOTED that publication of this judgment under the pseudonym Lake & Ainsley
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- AGLC
- Lake and Ainsley [2017] FCCA 2109
- Case
- [2017] FCCA 2109
- Decision Date
CaseChat Overview and Summary
The court was required to determine the procedural steps necessary to ensure a fair and efficient final hearing. This included setting deadlines for the filing of amended applications, responses, financial statements, and consolidated affidavits. Furthermore, the court needed to establish a framework for the presentation of evidence and arguments, including the requirement for each party to file a detailed Case Outline.
Judge Altobelli's reasoning focused on ensuring that both parties were adequately prepared for the final hearing and that the court had all necessary information presented in a clear and organised manner. The directions emphasised the importance of timely compliance with filing requirements, with clear consequences for non-compliance, such as the vacation of trial dates or the prioritisation of other matters. The court also granted leave for parties to issue subpoenas, acknowledging the potential need for further evidence. The court's orders reserved the applicant's costs, scheduled a three-day final hearing commencing on 12 February 2018, and imposed strict filing deadlines for various documents, including amended applications, responses, financial statements, affidavits, and a comprehensive Case Outline. The court also stipulated that trial affidavits would not be read until the Case Outline was filed, highlighting the critical nature of this document for the progression of the case.
Orders
Orders of the court
1.
The Applicant’s costs in the amount of $23,315.00 are reserved.
2.
The matter be stood over to the 3 day Final Hearing commencing on 12 February 2018 at 10.00am.
3.
Both parties file and serve any Amended Application / Response / Financial Statement upon which they intend to rely by no later than 19 January 2018.
4.
Each party is to file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witness’s affidavits by no later than 19 January 2018.
5.
Neither party may rely on any documents filed after 19 January 2018 without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.
6.
Each party is to file and serve a Case Outline document by no later than 4:00pm on 5 February 2017, setting out:
(a) a list of documents to be read in their case;
(b) a precise Minute of Orders Sought;
(c) a list of objections to evidence and the basis for such objection;
(d) a brief summary of argument setting out:
(i) the party’s contention as to the percentage contribution based entitlement asserted and the evidence relied on;
(ii) the party’s contention as to any s.75(2) percentage adjustment sought, the factors in s.75(2) relied on and the evidence relied on;
(e) a joint balance sheet, identifying the agreed and not agreed values of the pool of assets;
(f) a draft of the order sought to give effect to the overall entitlement asserted.
7.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.
8.
Both parties are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.
THE COURT NOTES THAT:
A. A party’s trial Affidavits will not be read until the Case Outline document has been filed and served in accordance with these directions, which may result in the Final Hearing dates being vacated, other matters being listed with priority, or the matter becoming part-heard.
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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