Mawson & Mawson (No 2) - [2021] FedCFamC1F 268

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mawson & Mawson (No 2) [2021] FedCFamC1F 268

File number(s): ADC 433 of 2020

Judgment of: BERMAN J

Date of judgment: 14 December 2021

Catchwords:
FAMILY LAW – PROPERTY – Interim distribution – Where the wife seeks a lump sum interim distribution for her legal fees and to assist in establishing a home for her and the child – Consideration of the property interests of the parties – Where the husband would have to refinance the former matrimonial home on an interim basis – Where there is no proper basis for an order to be made.

FAMILY LAW – PROPERTY – Litigation funding – Where the wife seeks litigation funding – Where the husband opposes the application – Consideration of the parties’ financial circumstances – Where the husband has been able to meet his legal fees – Where the wife has only been able to meet her legal fees by borrowing money from family – Where there should be a level playing field – Orders.

Legislation:
Family Law Act 1975 (Cth) ss 80(1)(h), 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06

Cases cited:
Klearchos & Klearchos and Ors [2015] FamCAFC 217

Medlow & Medlow (2016) FLC 93-692

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Division: Division 1 First Instance

Number of paragraphs: 46

Date of hearing: 24 November 2021

Place: Adelaide

Counsel for the Applicant: Mr Bowler

Solicitor for the Applicant: Clelands Lawyers Adelaide

Counsel for the Respondent: Mr Jordan

Solicitor for the Respondent: Jordan & Fowler Family Lawyers
ORDERS

ADC 433 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MAWSON

Applicant

AND:
MS MAWSON

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

14 DECEMBER 2021

THE COURT ORDERS THAT:
1.The husband do pay to the wife the sum of FIFTY THOUSAND DOLLARS ($50,000) by way of litigation funding or in the alternative that he transfer to the wife the D Pty Ltd shares currently held by him on or before 20 January 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mawson & Mawson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

By Further Amended Response to Initiating Application filed 28…

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 Mawson & Mawson (No 2)

Details

AGLC: Mawson & Mawson (No 2) [2021] FedCFamC1F 268
Case: [2021] FedCFamC1F 268
Decision Date

CaseChat Overview and Summary

Mawson & Mawson (No 2) involved a dispute between the husband and wife regarding financial support and litigation funding. The case was heard in the Family Court of Australia. The husband contested the wife’s application for litigation funding, arguing that she had not genuinely sought employment and that he had limited financial resources. The wife sought the funding to cover her legal fees, which she claimed were necessary to adequately represent her interests in the ongoing proceedings.

The primary legal issue before the court was whether the wife was entitled to litigation funding, given the husband’s contention that she had not made genuine efforts to find employment. The court also had to consider the financial circumstances of both parties and determine which party was more likely to be able to maintain legal representation without further financial assistance. The court had to weigh the husband’s access to family loans and the former matrimonial home against the wife’s need for funding to cover her legal expenses.

In its reasoning, the court found that the husband had not provided sufficient evidence to support his claim that the wife had not genuinely sought employment. The court also considered that the husband had more financial resources available to him, including the former matrimonial home and support from family members, which made it more likely that he could maintain his legal representation without needing to draw on the disputed shares. The court recognised that the wife’s application for litigation funding would likely reduce the husband’s settlement payment, making it in the best interests of both parties to grant the funding. The court concluded that the wife’s application should be granted, providing her with the necessary funds to continue her legal representation.

The final orders of the court were that the wife’s application for litigation funding was to be granted, allowing her to cover her legal fees. This decision aimed to provide the best chance for both parties to be adequately represented in the proceedings while considering their respective financial circumstances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BERMAN J

Whilst there is some challenge by the husband to the extent to which he does not consider the wife has genuinely sought employment, I am not able to make such a finding.CONCLUSION I find that given the husband has the resource of the former matrimonial home, a resource not available to the wife and has been able to meet his legal fees from his income and loans from family members on an ongoing basis, there is more likelihood that the husband will be able to maintain his legal representation without recourse to the D Pty Ltd Shares. It is also relevant that given the wife’s application is for litigation funding, the amount sought by her will likely be considered as an addback thereby reducing the eventual settlement sum that the husband acknowledges he will be required to pay to her. In those circumstances and acknowledging the difficulties that each of the parties will sustain up to the conclusion of the proceedings, I consider that I should make the order as sought by the wife following a consideration of the financial circumstances of the parties and as presenting the best chance of both parties being represented. I make the order as appears at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Established by: BERMAN J

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File number(s):	ADC 433 of 2020
Judgment of:	BERMAN J
Date of judgment:	14 December 2021
Catchwords:	FAMILY LAW – PROPERTY – Interim distribution – Where the wife seeks a lump sum interim distribution for her legal fees and to assist in establishing a home for her and the child – Consideration of the property interests of the parties – Where the husband would have to refinance the former matrimonial home on an interim basis – Where there is no proper basis for an order to be made. FAMILY LAW – PROPERTY – Litigation funding – Where the wife seeks litigation funding – Where the husband opposes the application – Consideration of the parties’ financial circumstances – Where the husband has been able to meet his legal fees – Where the wife has only been able to meet her legal fees by borrowing money from family – Where there should be a level playing field – Orders.
Legislation:	Family Law Act 1975 (Cth) ss 80(1)(h), 79 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06
Cases cited:	Klearchos & Klearchos and Ors [2015] FamCAFC 217 Medlow & Medlow (2016) FLC 93-692 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Division:	Division 1 First Instance
Number of paragraphs:	46
Date of hearing:	24 November 2021
Place:	Adelaide
Counsel for the Applicant:	Mr Bowler
Solicitor for the Applicant:	Clelands Lawyers Adelaide
Counsel for the Respondent:	Mr Jordan
Solicitor for the Respondent:	Jordan & Fowler Family Lawyers

ADC 433 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MAWSON Applicant
AND:	MS MAWSON Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	14 DECEMBER 2021