MAIN & WALTON - [2020] FamCA 927

FAMILY COURT OF AUSTRALIA

MAIN & WALTON

[2020] FamCA 927

FAMILY LAW – INTERIM PROPERTY – Where the applicant seeks $500,000 partial property settlement and $150,000 for litigation funding under section 90SM of the Family Law Act 1975 (Cth) – Where the applicant made unchallenged contributions in the relationship – Where the applicant has an appropriate case for partial property distribution – Where the applicant, in final distribution, would receive substantially more than the $650,000 sought for interim distribution – Orders made for partial property settlement.

Family Law Act 1975 (Cth) s 90SM

Strahan & Strahan (2011) FLC 93-466
Osferatu & Osferatu [2012] FamCA 408

APPLICANT:

Mr Main

RESPONDENT:

Ms Walton

FILE NUMBER:

SYC

1467

2019

DATE DELIVERED:

4 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

3 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn Sydney

COUNSEL FOR THE RESPONDENT:

Mr Sansom SC

SOLICITOR FOR THE RESPONDENT:

Swaab Attorneys

Orders

IT IS ORDERED

That each of the applicant and the respondent do all acts and things required to effect the payment to the applicant, by way of partial property settlement, of the sum of $650,000 from the funds held by Swaab Attorneys in the controlled monies account in trust for the parties being account number #…37 in D Bank.
That within 28 days of the date of these Orders, the respondent pay to the applicant the sum of $10,000 on account of the applicant’s costs of this application.

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 Main & Walton 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 SYDNEY

FILE NUMBER: SYC 1467 of 2019

Mr Main

Applicant

And

Ms Walton

Respondent

REASONS FOR JUDGMENT

Mr Main (“the applicant”) and Ms Walton (“the respondent”) separated in 2002 after a relationship of ten years and one child and entered into orders for property settlement in 2003.
In 2008, they commenced living together in a de facto relationship which lasted until they separated in September or November 2017. Their second child was born in 2010.
The substantive proceedings relate to the distribution of property arising out of the de facto relationship.
The application before the court is for payment of two amounts to the applicant who seeks $150,000 categorised as litigation funding and a further $500,000 by way of partial property settlement. The applications are opposed by the respondent.
It is not in dispute that the sum of $14,076,000 is…

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 MAIN & WALTON

Details

AGLC: MAIN & WALTON [2020] FamCA 927
Case: [2020] FamCA 927
Decision Date: 4 November 2020

CaseChat Overview and Summary

In the matter of *MAIN & WALTON*, heard before Rees J, the applicant sought interim orders for a partial property settlement of $500,000 and $150,000 for litigation funding, pursuant to section 90SM of the *Family Law Act 1975* (Cth). The dispute centred on the applicant's claim for an advance from the marital assets to meet immediate financial needs and litigation expenses, given their unchallenged contributions to the relationship.

The primary legal issue before the court was whether to grant the applicant's request for an interim distribution of property and litigation funding. This required the court to consider the strength of the applicant's case for a partial property distribution and to assess whether the amount sought was appropriate in the context of a likely final property settlement.

Rees J found that the applicant had established an appropriate case for a partial property distribution. The court reasoned that the applicant's contributions to the relationship were unchallenged and that, in a final property settlement, the applicant would likely receive substantially more than the $650,000 sought for interim purposes. Consequently, the court ordered the payment of $650,000 to the applicant by way of partial property settlement from specific funds held in trust. Additionally, the respondent was ordered to pay $10,000 to the applicant on account of their costs for the application.

Orders

Orders of the court

IT IS ORDERED

That each of the applicant and the respondent do all acts and things required to effect the payment to the applicant, by way of partial property settlement, of the sum of $650,000 from the funds held by Swaab Attorneys in the controlled monies account in trust for the parties being account number #…37 in D Bank.

That within 28 days of the date of these Orders, the respondent pay to the applicant the sum of $10,000 on account of the applicant’s costs of this application.

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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