Norton and Wilkins - [2017] FamCA 992

FAMILY COURT OF AUSTRALIA

NORTON & WILKINS

[2017] FamCA 992

FAMILY LAW – PROPERTY AND MAINTENANCE – INTERIM – PRACTICE AND PROCEDURE – COSTS – Where the applicant seeks maintenance and litigation funding – Where there is dispute between the parties as to the validity of a financial agreement – Where there is no prospect of the sum sought by the applicant being repaid.

Family Law Act 1975 (Cth)

In the Marriage of Zschokke [1996] FamCA 79; (1996) 20 FamLR 766; (1996) FLC 92-693
Norton & Locke (2013) 50 Fam LR 517; (2013) FLC 93-567
Rakete & Rakete [2012] FamCA 267
Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311
Strahan v Strahan (interim property orders) [2009] FamCAFC 166; (2009) 42 FamLR 203; (2011) FLC 93-466
Wall & Mitchell [2010] FamCA 1194

APPLICANT:

Ms Norton

RESPONDENT:

Mr Wilkins

FILE NUMBER:

SYC

3110

2017

DATE DELIVERED:

29 November 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

27 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hackett

SOLICITOR FOR THE APPLICANT:

Aubrey Brown Partners

COUNSEL FOR THE RESPONDENT:	Mr Kearney SC
SOLICITOR FOR THE RESPONDENT:	Hopgood Ganim Lawyers

Orders

The application for maintenance and litigation funding filed on 6 September 2017 (interim orders sought) is dismissed.
That pursuant to Rule 10.13 of the Family Law Rules 2004 there be a separate hearing as to:
(a)the relief sought by the Applicant in paragraphs 1 and 2 of the Amended Initiating Application (Family Law) filed 6 September 2017; and,
(b)the relief sought by the Respondent in paragraphs 1 and 2 of the Response to Initiating Application (Family Law) filed 24 October 2017.
All extant applications for interim orders are otherwise dismissed.

IT IS FURTHER ORDERED BY CONSENT:

The Applicant have leave to amend paragraph 5 of the Interim Orders sought in the Amended Initiating Application so as to accord with paragraph 17 of the Applicant’s Case Outline filed in Court on 27 November 2017 and the addition of paragraph 7(c) below.

Disclosure

The Respondent disclose such of the following documents (if any) within his possession or control within 14 days:
(a) documents from the Respondent’s computer relating to the date he:
(i)Scanned the Financial Agreement; and
(ii)Made the diary entry.
(b) documents relating to:
(i)when the letter by B Lawyers to C Lawyers dated 11 July 2014 (letter) was created;
(ii)whether the letter was transmitted by email and sent by post;
(iii)the receipt of either email or letter by C Lawyers of the letter or, to the contrary, its return; and documents relating to
(c)documents relating to receipt by the Respondent from his solicitors of the Financial Agreement for signature by him.

Points of Claim

That within thirty (30) days hereof the Applicant shall file and serve a Points of Claim document, pleading the particular provisions of the Family Law Act 1975 and any contentions of law she relies upon as grounds for the relief sought by her in paragraphs 1 and 2…

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 Norton and Wilkins

Details

AGLC: Norton and Wilkins [2017] FamCA 992
Case: [2017] FamCA 992
Decision Date: 29 November 2017

CaseChat Overview and Summary

In the matter of Norton and Wilkins, Carew J considered an application for interim maintenance and litigation funding. The applicant sought these orders, while the respondent contested them. The core of the dispute revolved around the validity of a financial agreement and related issues concerning its execution and transmission.

The court was required to determine whether to grant the interim orders sought by the applicant for maintenance and litigation funding. Additionally, the court needed to decide on the appropriate procedural steps for resolving the substantive relief sought by both parties concerning the financial agreement and other matters raised in their respective applications.

Carew J dismissed the application for interim maintenance and litigation funding. Instead, the court ordered a separate hearing to address the substantive relief sought by both the applicant and the respondent. This approach was taken to clarify the issues and ensure proper pleading of the case. The court also made orders by consent regarding amendments to the applicant's application and directed the disclosure of specific documents relevant to the financial agreement's scanning, creation, and transmission. Furthermore, the court mandated the filing of Points of Claim and Points of Defence by both parties to define the issues for the separate hearing.

Orders

Orders of the court

The application for maintenance and litigation funding filed on 6 September 2017 (interim orders sought) is dismissed.

That pursuant to Rule 10.13 of the Family Law Rules 2004 there be a separate hearing as to:

(a) the relief sought by the Applicant in paragraphs 1 and 2 of the Amended Initiating Application (Family Law) filed 6 September 2017; and,

(b) the relief sought by the Respondent in paragraphs 1 and 2 of the Response to Initiating Application (Family Law) filed 24 October 2017.

All extant applications for interim orders are otherwise dismissed.

IT IS FURTHER ORDERED BY CONSENT:

The Applicant have leave to amend paragraph 5 of the Interim Orders sought in the Amended Initiating Application so as to accord with paragraph 17 of the Applicant’s Case Outline filed in Court on 27 November 2017 and the addition of paragraph 7(c) below.

Disclosure

The Respondent disclose such of the following documents (if any) within his possession or control within 14 days:

(a) documents from the Respondent’s computer relating to the date he:

(i) Scanned the Financial Agreement; and

(ii) Made the diary entry.

(b) documents relating to:

(i) when the letter by B Lawyers to C Lawyers dated 11 July 2014 (letter) was created;

(ii) whether the letter was transmitted by email and sent by post;

(iii) the receipt of either email or letter by C Lawyers of the letter or, to the contrary, its return; and documents relating to

Points of Claim

That within thirty (30) days hereof the Applicant shall file and serve a Points of Claim document, pleading the particular provisions of the Family Law Act 1975 and any contentions of law she relies upon as grounds for the relief sought by her in paragraphs 1 and 2 of the Amended Initiating Application (Family Law) filed 6 September 2017 and all the material facts she contends will support the relief she seeks, but not the evidence by which the facts are to be proved.

That within thirty (30) days of the date of service upon the respondent of the Applicant’s Points of Claim document, the Respondent shall file and serve both:

(a) a Points of Defence document; and,

(b) a Points of Claim document, pleading the particular provisions of the Family Law Act 1975 and any contentions of law he relies upon as grounds for the relief sought by him in paragraph 2 of the Response to Initiating Application (Family Law) filed 24 October 2017 and all the material facts he contends will support the relief he seeks, but not the evidence by which the facts are to be proved.

That within fifteen (15) days of the date of service upon the applicant of the Respondent’s Points of Claim document, the Applicant shall file and serve a Points of Defence document.

The Points of Claim documents shall include particulars necessary to define the issues for, and prevent surprise at, the separate hearing, and to enable each party to plead in response, and support any matters specifically pleaded.

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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