Markell & Markell & Anor - [2015] FamCA 623

FAMILY COURT OF AUSTRALIA

MARKELL & MARKELL & ANOR

[2015] FamCA 623

FAMILY LAW – PROPERTY – Interim – Husband’s application for litigation funding – Where the husband is incarcerated for murder in a NSW prison and seeks interim property orders to obtain funds for legal costs to pursue an appeal in his criminal proceedings and to fund legal costs of these proceedings – Where the law firm which represented the husband in his criminal law proceedings is an intervener, seeking to obtain funds attributable to unpaid fees as a creditor of the husband – Where the wife and intervener oppose any interim property orders – Husband’s legal capacity to appear in these proceedings in circumstances where he is incarcerated – Where the amount owing by the husband to the intervener is disputed – Where the husband has not particularised any current or prospective legal fees attributable to his criminal law appeal or these proceedings – Where an order in terms of the husband’s application for litigation funding would not be just and equitable – Application dismissed.

Bankruptcy Act 1966 (Cth)
Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)
Felons (Civil Proceedings) Act 1981 (NSW)
Public Trustee Act 1978 (Qld)
NSW Trustee and Guardian Act 2009

ASIC v Rich (2003) 31 Fam LR 667
Australian Securities & Investments Commission v Forge (2003) 133 FCR 487
Re BM2008 Pty Ltd (in liq) (2010) 244 FLR 17
Re Glendale Land Development Ltd (in liq) (1982) 7 ACLR 171
Strahan & Strahan (Interim property orders) (2011) FLC 93-466

APPLICANT:

Ms Markell

RESPONDENT:

Mr Markell

INTERVENER:

B Lawyers (ACN …)

FILE NUMBER:

BRC

6823

2012

DATE DELIVERED:

30 July 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

7 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Rhonda Sheehy & Associates

FOR THE RESPONDENT:

In person (by telephone)

COUNSEL FOR THE INTERVENER:

Ms Wardle

SOLICITOR FOR THE INTERVENER:

Sydney Criminal Lawyers

Orders

It is ordered that:

The Applications in a Case filed by the Respondent Husband on 11 November 2013 and 23 January 2014 respectively be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Markell & Markell & Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6823 of 2012

Ms Markell

Applicant

And

Mr Markell

Respondent

And

B Lawyers (ACN …)
Intervener

REASONS FOR JUDGMENT

In March 2014, Mr Markell (“the husband”) who is the respondent in these substantive property settlement proceedings instituted by Ms Markell (“the wife”) was convicted of the murder, in 2012, of one Ms C.
In 2014, the husband was sentenced to a term of imprisonment of 29 years, with a non-parole period of 22 years commencing from February 2013. The husband is first eligible for parole in February 2035, with the balance of the term expiring in 2042. The husband is currently incarcerated in prison in New…

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: [2015] FamCA 623
Decision Date: 30 July 2015

CaseChat Overview and Summary

In *Markell & Markell & Anor*, Kent J of the Family Court of Australia considered applications filed by the Respondent Husband on 11 November 2013 and 23 January 2014. The precise nature of the dispute between the parties is not detailed in the provided text, beyond the fact that the Respondent Husband initiated these applications.

The central legal issue before the court was whether the applications filed by the Respondent Husband should be granted. The court was required to determine the merits of these applications and decide whether they should be dismissed.

Kent J ultimately ordered that the applications filed by the Respondent Husband on 11 November 2013 and 23 January 2014 be dismissed. No further reasoning or legal principles applied are discernible from the provided text.

Orders

Orders of the court

It is ordered that:

The Applications in a Case filed by the Respondent Husband on 11 November 2013 and 23 January 2014 respectively be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.