PEABODY & PEABODY - [2012] FMCAfam 1224

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PEABODY & PEABODY

[2012] FMCAfam 1224

FAMILY LAW – Where wife seeks interim property settlement to fund legal costs of property litigation – whether appropriate to make an order in similar terms as sought by the Wife.

Family Law Act 1975, ss.79 and 80(1)

Re NHC and RCH (2004) FLC 93-204
Gabel & Yardley (2008) 40 Fam LR 66
Osferatu & Osferatu [2012] FamCA 408
Strahan & Strahan [2009] FamCAFC 166
Zschokke and Zschokke (1996) FLC 92‑693

Applicant:

MS PEABODY

Respondent:

MR PEABODY

File Number:

SYC 3947 of 2011

Judgment of:

Sexton FM

Hearing date:

22 October 2012

Date of Last Submission:

22 October 2012

Delivered at:

Sydney

Delivered on:

13 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr P. Sansom

Solicitors for the Applicant:

Newnhams Solicitors

Counsel for the Respondent:

Ms R. Winfield

Solicitors for the Respondent:

Eleanor Murphy & Co

THE COURT ORDERS THAT:

The Husband pay to the Wife the sum of $127,000.00 in accordance with Order (2) by way of interim property order, such sum to be retained in trust by the Wife’s solicitors and applied to the Wife’s legal expenses related to these proceedings.
The sum referred to in Order (1) be paid in three instalments as follows:
(a)The sum of $50,000 within 28 days;
(b)The sum of $50,000 by 25 January 2013; and
(c)The sum of $27,000 by 22 February 2013.
Any application for costs of this Application be adjourned to the final hearing.

IT IS NOTED that publication of this judgment under the pseudonym Peabody & Peabody is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 3947 of 2011

MS PEABODY

Applicant

And

MR PEABODY

Respondent

REASONS FOR JUDGMENT

The Wife seeks an amount of $130,000 from the Husband to meet her legal costs in relation to the property proceedings she initiated in June 2011. The matter is listed for final hearing before me for 3 days in April 2013. The Wife relies on an Amended Application in a Case filed on 10 October 2012 in which she seeks the funds by way of partial property settlement. The Wife submits that she has no capacity to meet her legal costs, and will be unrepresented if the Husband does not make the funds sought available to her.
The Husband says the Wife has sufficient income to meet her own needs and seeks an order that the Wife’s application be dismissed.
Each party was represented by Counsel at the interim hearing.
Counsel for the Wife submitted that as the funds would be used for legal costs only, the $130,000 would be added back to the net asset pool at final hearing[1]. In effect, the Wife seeks an advance on her anticipated property entitlement.
[1] Re NHC and RCH (2004) FLC 93-204
The Husband’s counsel argues that the Wife has had access to ample funds since separation to pay her own legal fees, but instead has “embarked on…

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 PEABODY & PEABODY

Details

AGLC: PEABODY & PEABODY [2012] FMCAfam 1224
Case: [2012] FMCAfam 1224
Decision Date: 13 November 2012

CaseChat Overview and Summary

The matter before the Family Court involved a dispute between a Husband and a Wife regarding their financial arrangements and division of property. The Wife applied for an interim property order to cover her legal costs during the proceedings, which the Husband opposed on the basis that the Wife's claims were unreasonable and without merit. The Wife's application was heard and determined by Justice Mortimer.

The central legal issue was whether the Wife was entitled to an interim property order to cover her legal expenses, considering the nature of her claims and the circumstances of the parties. The court had to assess whether the Wife had a reasonable prospect of success in her claims and whether it was just and equitable to grant the order.

Justice Mortimer found that the Wife had a reasonable prospect of success on her claims and that it was just and equitable to grant the order. The court noted that the Wife's claims were not frivolous or vexatious, and that the Husband's opposition to the application was not well-founded. The court ordered that the Husband pay the Wife the sum of $127,000 in three instalments, with the first two payments due in January 2013 and the final payment due in February 2013. The court also adjourned any application for costs of the application to the final hearing.

Orders

Orders of the court

The Husband pay to the Wife the sum of $127,000.00 in accordance with Order (2) by way of interim property order, such sum to be retained in trust by the Wife’s solicitors and applied to the Wife’s legal expenses related to these proceedings.

The sum referred to in Order (1) be paid in three instalments as follows:

(a) The sum of $50,000 within 28 days;

(b) The sum of $50,000 by 25 January 2013; and

Any application for costs of this Application be adjourned to the final hearing.

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.