Lange and Lange (No 2) - [2013] FamCA 670

FAMILY COURT OF AUSTRALIA

LANGE & LANGE (NO 2)

[2013] FamCA 670

FAMILY LAW – PRACTICE AND PROCEEDURE – Proceedings adjourned to a fixed date for mention – Directions hearing ordered – Orders and directions made for discovery

FAMILY LAW – COSTS – Order that Wife pay husbands costs thrown away

Family Law Act 1975 (Cth)

Prantage and Prantage [2013] FamCAFC 105
Hand v Bodily [2013] FamCAFC 98

APPLICANT:

Mr Lange

RESPONDENT:

Ms Lange

FILE NUMBER:

MLC

7168

2011

DATE DELIVERED:

2 August 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

2 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Vohra

SOLICITOR FOR THE APPLICANT:

Pearsons Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Hess and Mr Lethlean

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

These part heard property, spousal maintance and Child Support proceedings be adjourned for mention and directions before me at 4.30pm on Tuesday 6 August 2013 at Melbourne.
Leave be given to the parties to appear by telephone by dialling …
IT IS DIRECTED
Both parties and their legal representatives (if they continue to act) attend at such directions hearing on 6 August 2013 at 4.30pm.
A copy of the transcript of the evidence of the husband given in chief on 2 August 2013 from approximately 10.35am to 11.35am be taken out and placed on the Court file.
The husband cause to be delivered, either in person or electronically, (either by email or facsimile) to the wife’s solicitors practice by 4.00pm Monday 5 August 2013:-
(a)The financial accounts of D Pty Ltd for the years ending 30 June 2011, 30 June 2012 and such of the financial accounts as are prepared to date for the financial year ended 30 June 2013 together with a copy of a letter which he must send to his accountants H Accountants at I Street, Suburb J …, an authority for the wife and/or her expert and/or her solicitors to obtain such information as to the financial circumstances and financial accounts of D Pty Ltd as is reasonably required by her and at her own expense; and
(b)The financial accounts of the Lange Family Trust No. 2 or any associated company or trust which operates around the business or owns any of the assets of the business for the years ending 30 June 2011, 30 June 2012 and such of the financial accounts as are prepared to date for the financial year ended 30 June 2013 together with a copy of a letter which he must send to his accountants H Accountants at I Street, Suburb J…, an authority for the wife and/or her expert and/or her solicitors to obtain such information as to the financial circumstances and financial accounts of the Lange Family Trust No. 2 or any associated company or trust which operates around the business or owns any of the assets of the business as is reasonably required by her and at her own expense
IT IS FURTHER ORDERED
The…

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.

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Details

Case: [2013] FamCA 670
Decision Date: 2 August 2013

CaseChat Overview and Summary

This matter before Benjamin J concerned property settlement, spousal maintenance, and child support proceedings between the parties, Mr and Mrs Lange. The proceedings were part-heard and required further directions from the court.

The court was required to determine the procedural steps necessary to advance the property settlement and maintenance claims, including the disclosure of financial information and the potential appointment of an expert. The court also needed to address the costs incurred by the husband due to an adjournment on 2 August 2013.

Benjamin J directed that the parties attend a further mention and directions hearing by telephone on 6 August 2013. Crucially, the husband was ordered to provide the wife's solicitors with the financial accounts for D Pty Ltd and the Lange Family Trust No. 2 for the financial years ending 30 June 2011, 30 June 2012, and any prepared to date for the financial year ending 30 June 2013. He was also ordered to provide an authority to his accountants, H Accountants, allowing the wife or her representatives to obtain necessary financial information at her expense. The court further ordered that the wife pay the husband's costs thrown away on 2 August 2013, totalling $5,975, to be deducted from any property settlement amount payable to her. The wife was also given a deadline to file an application for the appointment of a single expert to value the husband's company and business, should she wish to pursue that course.

Orders

Orders of the court

These part heard property, spousal maintance and Child Support proceedings be adjourned for mention and directions before me at 4.30pm on Tuesday 6 August 2013 at Melbourne.

Leave be given to the parties to appear by telephone by dialling …

IT IS DIRECTED

Both parties and their legal representatives (if they continue to act) attend at such directions hearing on 6 August 2013 at 4.30pm.

A copy of the transcript of the evidence of the husband given in chief on 2 August 2013 from approximately 10.35am to 11.35am be taken out and placed on the Court file.

The husband cause to be delivered, either in person or electronically, (either by email or facsimile) to the wife’s solicitors practice by 4.00pm Monday 5 August 2013:-

(a) The financial accounts of D Pty Ltd for the years ending 30 June 2011, 30 June 2012 and such of the financial accounts as are prepared to date for the financial year ended 30 June 2013 together with a copy of a letter which he must send to his accountants H Accountants at I Street, Suburb J …, an authority for the wife and/or her expert and/or her solicitors to obtain such information as to the financial circumstances and financial accounts of D Pty Ltd as is reasonably required by her and at her own expense; and

(b) The financial accounts of the Lange Family Trust No. 2 or any associated company or trust which operates around the business or owns any of the assets of the business for the years ending 30 June 2011, 30 June 2012 and such of the financial accounts as are prepared to date for the financial year ended 30 June 2013 together with a copy of a letter which he must send to his accountants H Accountants at I Street, Suburb J…, an authority for the wife and/or her expert and/or her solicitors to obtain such information as to the financial circumstances and financial accounts of the Lange Family Trust No. 2 or any associated company or trust which operates around the business or owns any of the assets of the business as is reasonably required by her and at her own expense

IT IS FURTHER ORDERED

The wife pay the husband’s costs thrown away 2 August 2013 totalling $5,975. The payment of that sum to be effected by way of its deduction from the amount otherwise payable to the wife pursuant to the property orders, whether the orders are made by way of agreement between the parties or are ordered by a Court exercising jurisdiction under the Family Law Act.

IT IS FURTHER DIRECTED

If the wife wishes to make an application for the appointment of a single expert to value the husband’s company and business, the wife file and serve an application in a case in that respect, to this court by 12.00 noon Thurdsay 8 August 2013, together with an affidavit in support of that application.

If the wife ceases to instruct her barrister and/or solicitor the wife provide to the court an address for service which will include an address, an email address and a telephone number where she can be contaced.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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