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 | of | 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…
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- AGLC
- Norton and Wilkins [2017] FamCA 992
- Case
- [2017] FamCA 992
- Decision Date
CaseChat Overview and Summary
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
1.
The application for maintenance and litigation funding filed on 6 September 2017 (interim orders sought) is dismissed.
2.
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.
3.
All extant applications for interim orders are otherwise dismissed.
IT IS FURTHER ORDERED BY CONSENT:
4.
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
5.
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
6.
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.
7.
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.
8.
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.
9.
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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