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
The appellant have leave to appeal from the orders of Federal Magistrate Purdon-Sully made on 10 February 2012.
The appeal against Order 2 of the orders of Federal Magistrate Purdon-Sully of 10 February 2012 be allowed and that Order be discharged.
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.
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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- AGLC
- MARCHANT & MARCHANT [2012] FamCAFC 181
- Case
- [2012] FamCAFC 181
- Decision Date
CaseChat Overview and Summary
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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