Marchant & Marchant

Case [2012] FamCAFC 181


FAMILY COURT OF AUSTRALIA

MARCHANT & MARCHANT [2012] FamCAFC 181

FAMILY LAW – APPEAL – Interim financial orders – Whether application for lump sum payment entertained solely because the payment was within the wife’s ultimate property entitlement – Whether sufficient circumstances existed for it to be appropriate to exercise power pursuant to s 79 and s 80(1)(h).

FAMILY LAW – APPEAL – Interim financial orders – Whether order for periodic payment directed to “property” – Future contingent interest in income from investments – Form of order made – Whether capable of being made pursuant to s 79 and s 80(1)(h).

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Cordell & Cordell (1977) FLC 90-322
Crapp & Crapp (No 2) (1979) FLC 90-615
Duff and Duff (1977) FLC 90-217
Gabel & Yardley (2008) FLC 93-386
In the Marriage of Debs (1978) 4 Fam LN 48
In the Marriage of Nelson (1977) 30 FLR 573
In the Marriage of Rickaby (1995) FLC 92-642
In the Marriage of White (1979) FLC 90-682
Jones v Skinner (1835) 5 LJ Ch 87
Mullane & Mullane (1983) 158 CLR 436
Perrett & Perrett (1990) FLC 92-101
Rutherford & Rutherford (1991) FLC 92-255
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
W & W (1980) FLC 90-872
APPELLANT: Mr Marchant
RESPONDENT: Mrs Marchant
FILE NUMBER: BRC 9607 of 2011
APPEAL NUMBER: NA 18 of 2012
DATE DELIVERED: 12 November 2012
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: May, Ainslie-Wallace & Kent JJ
HEARING DATE: 4 September 2012
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 10 February 2012
LOWER COURT MNC: [2011] FMCAfam201

REPRESENTATION

COUNSEL FOR THE APPELLANT: Graham Page SC
SOLICITOR FOR THE APPELLANT: Rostron Carlyle Solicitors
COUNSEL FOR THE RESPONDENT: R M Galloway
SOLICITOR FOR THE RESPONDENT: Crowley Greenhalgh Solicitors

Orders

  1. The appellant have leave to appeal from the orders of Federal Magistrate Purdon-Sully made on 10 February 2012.

  2. The appeal against Order 2 of the orders of Federal Magistrate Purdon-Sully of 10 February 2012 be allowed and that Order be discharged.

  3. The Court grants to the appellant a costs certificate pursuant to s 9(1) of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

  4. The Court grants to the respondent a costs certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marchant…

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MARCHANT & MARCHANT [2012] FamCAFC 181
Case
[2012] FamCAFC 181
Decision Date

CaseChat Overview and Summary

The case of Marchant & Marchant involved an appeal by the appellant against an order made by Federal Magistrate Purdon-Sully on 10 February 2012. The nature of the dispute is not explicitly stated in the text, but it is clear that the appellant sought leave to appeal certain orders and that the Federal Circuit Court was tasked with reviewing the decision of the Federal Magistrate. The court was required to decide whether the appellant had grounds for appeal, specifically regarding Order 2 of the Magistrate's orders, and to determine the appropriate allocation of costs under the Federal Proceedings (Costs) Act 1981 (Cth).

The legal issues before the court included whether the appellant had satisfied the criteria for leave to appeal and whether the Federal Magistrate's Order 2 was justified. The court had to consider the merits of the appeal and whether the order in question was appropriate. Additionally, the court needed to decide on the allocation of costs between the appellant and the respondent, ensuring that the appropriate party was compensated for their legal expenses.

In its reasoning, the court found that the appellant had grounds for appealing Order 2, which was subsequently discharged. The court determined that the appellant was entitled to a costs certificate, indicating that it was appropriate for the Attorney-General to authorise payment of the appellant's costs related to the appeal. Similarly, the court granted the respondent a costs certificate, indicating that it was appropriate for the Attorney-General to authorise payment of the respondent's costs related to the appeal. This balanced approach ensured that both parties were adequately compensated for their legal expenses.

Orders

Orders of the court

1.

The appellant have leave to appeal from the orders of Federal Magistrate Purdon-Sully made on 10 February 2012.

2.

The appeal against Order 2 of the orders of Federal Magistrate Purdon-Sully of 10 February 2012 be allowed and that Order be discharged.

3.

The Court grants to the appellant a costs certificate pursuant to s 9(1) of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

4.

The Court grants to the respondent a costs certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

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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