ORCHIDE & ORCHIDE

In the matter of Orchide & Orchide, the appellant, the husband, appealed against a decision of the Family Court of Australia, which had determined the distribution of property between the parties following their separation. The primary issue before the court was whether the trial judge erred in her findings regarding an informal agreement reached by the parties at the time of their separation. The husband argued that he had allowed the wife and their child to occupy the former matrimonial home, and that this should be considered as a contribution by him. However, the court found that the trial judge was correct in her assessment and did not err in her findings.

The court emphasised that the trial judge had provided adequate reasons for her decision, and it was open to her to accept the evidence of one party over the other. The husband's appeal was based on the assertion that the trial judge had erred in the exercise of her discretion and that her decision was plainly wrong. However, the court found that there was no merit in any of the grounds of appeal, and the husband's argument was unsuccessful.

In relation to costs, the wife sought an order for costs against the husband, who opposed the order on the basis of his poor financial circumstances. However, the court held that the wife was in a financially better position than the husband, and that impecuniosity was not a bar to an order for costs being made where there were circumstances which justified such an order. Given that the husband had been wholly unsuccessful in his appeal, the court ordered that he pay the costs of the wife of and incidental to the appeal.

The appeal was dismissed, and the husband was ordered to pay the wife's costs of and incidental to the appeal, such costs to be assessed in default of agreement.