Rakete v Rakete

Case [2012] FamCA 267

FAMILY COURT OF AUSTRALIA

RAKETE & RAKETE [2012] FamCA 267

FAMILY LAW - PROPERTY – Costs – Where application for an interim Order for costs under s 117(2) of the Act – Where application is ancillary to an application to overturn a Binding Financial Agreement made between the parties – Where the Applicant Wife has a low income and the care of the parties' children – Where the Husband has a substantially greater income and retained all of the assets of the matrimonial pool – Whether “justifying circumstances” and whether costs Order “just” – Amount of Order

FAMILY LAW - PROPERTY – Mediation – Whether power to order mediation under the Act
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Breen v Breen (1990) 65 ALJR 195
Hogan & Hogan (1986) FLC91-704
Penfold & Penfold (1980) 144 CLR 311
Potter v Dickinson (1905) 2 CLR 668
Re JJT & Ors; ex parte Victoria Legal Aid (1998) FLC 92-812
Strahan & Strahan(interim property orders)  (2011) FLC 93-466
Wall v Mitchell [2010] FamCA 1194
Zschokke & Zschokke (1996) FLC 92-693
APPLICANT: Ms Rakete
RESPONDENT: Mr Rakete
FILE NUMBER: BRC 5842 of 2010
DATE DELIVERED: 27 April 2012
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Kent J
HEARING DATE: 30 January 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Jones Mitchell Lawyers
COUNSEL FOR THE RESPONDENT: Ms J Brasch
SOLICITOR FOR THE RESPONDENT: Evans & Company Family Lawyers

Orders

  1. If, within fourteen (14) days of the date of these Orders, the parties submit for filing a consent Order for them to attend private mediation of their dispute, then within forty-five (45) days of the date of this Order, the Respondent cause to be paid to the trust account of the solicitors for the Applicant, Jones Mitchell Lawyers, the sum of $28,498.00 on account of the Applicant’s costs.

  2. If paragraph 1 of these Orders does not take effect, then within forty-five (45) days of the date of these Orders, the Respondent cause to be paid to the trust account of the solicitors for the Applicant, Jones Mitchell Lawyers, the sum of $52,000.00 on account of the Applicant’s costs.

  3. If paragraph 1 of these Orders takes effect, but the parties are unable to resolve their dispute at mediation, then within fourteen (14) days of termination of the mediation process (termination including that the mediation does not, for any reason, proceed) the Respondent cause to be paid to the trust account of the solicitors for the Applicant, Jones Mitchell Lawyers, the further sum of $23,500.00 on account of the Applicant’s costs.

  4. The Applicant be authorised to use the funds held in the trust account of her solicitors, Jones Mitchell Lawyers, from time to time, pursuant to these Orders, only in respect of meeting costs of and incidental to these proceedings.

  5. Pursuant to r 10.14 of the Family Law Rules 2004 (Cth), the Applicant’s claims pursuant to s 90K of the Family Law Act 1975 (Cth) be heard and determined as a discrete issue…

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AGLC
Rakete v Rakete [2012] FamCA 267
Case
[2012] FamCA 267
Decision Date

CaseChat Overview and Summary

In *Rakete v Rakete*, heard by Kent J, the applicant wife sought an interim costs order under s 117(2) of the *Family Law Act 1975* (Cth). This application was ancillary to her primary application to overturn a Binding Financial Agreement made between the parties. The wife had a low income and the care of the parties' children, while the husband possessed a substantially greater income and retained all assets from the matrimonial pool.

The court was required to determine whether "justifying circumstances" existed for an interim costs order and, if so, whether such an order would be "just" in the circumstances. Additionally, the court considered its power to order private mediation of the dispute under the Act.

Kent J reasoned that the disparity in income and asset retention, coupled with the wife's role as primary caregiver, constituted justifying circumstances for an interim costs order. The court found that ordering the husband to contribute to the wife's costs was just, given the financial imbalance and the need for the wife to be able to adequately pursue her claims. The court also exercised its power to order mediation, offering a conditional costs order contingent on the parties' agreement to private mediation.

The court made several orders regarding costs. If the parties agreed to private mediation within fourteen days, the husband was to pay $28,498.00 on account of the wife's costs. If mediation did not occur or was unsuccessful, further sums were payable. The wife was authorised to use these funds solely for legal costs. The court also ordered that the wife's claims under s 90K of the Act be heard as a discrete issue, with further directions to be made by a Registrar. The costs of this specific application were reserved to the trial judge.

Orders

Orders of the court

1.

If, within fourteen (14) days of the date of these Orders, the parties submit for filing a consent Order for them to attend private mediation of their dispute, then within forty-five (45) days of the date of this Order, the Respondent cause to be paid to the trust account of the solicitors for the Applicant, Jones Mitchell Lawyers, the sum of $28,498.00 on account of the Applicant’s costs.

2.

If paragraph 1 of these Orders does not take effect, then within forty-five (45) days of the date of these Orders, the Respondent cause to be paid to the trust account of the solicitors for the Applicant, Jones Mitchell Lawyers, the sum of $52,000.00 on account of the Applicant’s costs.

3.

If paragraph 1 of these Orders takes effect, but the parties are unable to resolve their dispute at mediation, then within fourteen (14) days of termination of the mediation process (termination including that the mediation does not, for any reason, proceed) the Respondent cause to be paid to the trust account of the solicitors for the Applicant, Jones Mitchell Lawyers, the further sum of $23,500.00 on account of the Applicant’s costs.

4.

The Applicant be authorised to use the funds held in the trust account of her solicitors, Jones Mitchell Lawyers, from time to time, pursuant to these Orders, only in respect of meeting costs of and incidental to these proceedings.

5.

Pursuant to r 10.14 of the Family Law Rules 2004 (Cth), the Applicant’s claims pursuant to s 90K of the Family Law Act 1975 (Cth) be heard and determined as a discrete issue and that the proceedings be adjourned to a Registrar for the making of further directions to facilitate the listing of the matter for such discrete hearing and determination.

6.

The parties’ costs of and incidental to this application be reserved to the trial judge who hears and determines the discrete issue.

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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