PERICLES & HOPMAN - [2020] FamCA 465

FAMILY COURT OF AUSTRALIA

PERICLES & HOPMAN

[2020] FamCA 465

FAMILY LAW – PROPERTY – where a party to proceedings asserts that COVID-19 has resulted in a diminution in value of assets.

FAMILY LAW – PRACTICE AND PROCEDURE - where judgement is reserved in a de facto property case and a party applies to re-open the case to adduce new evidence of valuation – principles to re-open a case to adduce further evidence – where applicant for re-opening fails to adduce evidence of fall in value of assets – application dismissed.

FAMILY LAW – COSTS – where parties agree that costs should follow the event – where parties’ agreement that costs follow the event does not relieve the court from being satisfied that it is “just” within the meaning of s 117 to make an order for costs – where the court is satisfied that there are circumstances which warrant an order for costs – where having had regard to the relevant matters an order for costs is made in the wife’s favour of and incidental to the application which is dismissed.

FAMILY LAW – COSTS – where counsel sensibly did not pursue costs on an indemnity basis – where costs claimed are modest - where costs are ordered in the sum claimed.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Atwill & Atwill [1981] FamCA 72
Burke & Burke (1992) 16 FamLR 324
EB v CT(No. 2) (2008) QSC 306
Elgin & Elgin (2015) FamCAFC 155
Reid v Brett [2005] VSC 18
Smith v New South Wales Bar Association (1992) 176 CLR 256
Walpole & Secretary, Department of Communities and Justice [2020] FamCAFC 65

APPLICANT:

Ms Pericles

RESPONDENT:

Mr Hopman

FILE NUMBER:

MLC

9624

2016

DATE DELIVERED:

9 June 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

21 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Blackwood Family Lawyers

Orders

The wife’s outline of case be marked exhibit “W1” and remain on the court file.
The husband’s application in a case filed 23 April 2020 be and is hereby dismissed.
The wife’s memorandum of costs claimed be marked exhibit “W2” and remain on the court file.
The husband’s memorandum of costs claimed be marked exhibit “H1” and remain on the court file.
The husband pay the wife’s costs of and incidental to the application fixed in the sum of $5,153.38.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pericles & Hopman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of…

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 PERICLES & HOPMAN

Details

AGLC: PERICLES & HOPMAN [2020] FamCA 465
Case: [2020] FamCA 465
Decision Date: 9 June 2020

CaseChat Overview and Summary

In the Family Court of Australia, before Bennett J, the husband applied to re-open proceedings in a de facto property case after judgment had been reserved. The husband sought to adduce new evidence concerning the valuation of assets, asserting that COVID-19 had resulted in a diminution in their value.

The primary legal issue before the court was whether the principles governing the re-opening of a case to adduce further evidence warranted granting the husband's application. A secondary issue concerned the costs of the application, with the parties having agreed that costs should follow the event, but the court retaining discretion to determine if such an order was "just" under section 117 of the relevant legislation.

Bennett J dismissed the husband's application, finding that he had failed to adduce sufficient evidence to demonstrate a fall in the value of the assets. The court applied the principles for re-opening a case, which require a compelling reason and evidence that could not have been obtained with reasonable diligence at the time of the original hearing. Regarding costs, while the parties had agreed costs should follow the event, the court was satisfied that circumstances warranted an order for costs in the wife's favour. The husband was ordered to pay the wife's costs of and incidental to the dismissed application, fixed at $5,153.38, with counsel sensibly not pursuing costs on an indemnity basis given the modest sum claimed.

Orders

Orders of the court

The wife’s outline of case be marked exhibit “W1” and remain on the court file.

The husband’s application in a case filed 23 April 2020 be and is hereby dismissed.

The wife’s memorandum of costs claimed be marked exhibit “W2” and remain on the court file.

The husband’s memorandum of costs claimed be marked exhibit “H1” and remain on the court file.

The husband pay the wife’s costs of and incidental to the application fixed in the sum of $5,153.38.

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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