Richardson and Richardson - [2008] FamCA 1215

FAMILY COURT OF AUSTRALIA

RICHARDSON & RICHARDSON

[2008] FamCA 1215

FAMILY LAW – MAINTENANCE – interim spousal
FAMILY LAW – COSTS – Interim

Family Law Act 1975 (Cth)

APPLICANT:

Mr Richardson

RESPONDENT:

Ms Richardson

FILE NUMBER:

PAF

5698

1991

DATE DELIVERED:

18 December 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan JR

HEARING DATE:

18 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR FOR THE APPLICANT:

Atkinson Vinden

COUNSEL FOR THE RESPONDENT:

Mr Thomas

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

Orders

Orders are made in terms of the wife’s Response to an Application in a Case filed 14 November 2008 in terms of paragraphs 1, 2 and 3 (as amended) as set out hereunder:
“1. That the Application in a Case filed 23 September 2008 be dismissed.
2.That pending further order the respondent husband pay or cause to be paid the following:
a.In respect of the property at T Street in E (“the T Street property”) the council rates, water rates and insurance premiums.
c.All instalments of principle and interest as and when the same falls due in respect of the mortgage to the National Australia Bank (and/or any other mortgage) secured over the title of the T Street property.
d. To the wife the sum of $400 per week.
And the court noted that the payments under 1(2)(a) and (d) are by way of spousal maintenance.
That pending further order the wife be granted exclusive occupation of the T Street property.
That pending further order the husband provide advance written notice to the wife in the event that he intends to further mortgage, charge, encumber, sell or in any way deal with the properties at:
a.        T Street, E
b.        2T Street, E
c.        R Street, E
d.        D property
e.        K property
save in relation to any of those things arising under an existing facility in relation to those properties.
That within 14 days of receipt of an invoice addressed to the wife from Newnhams Solicitors in relation to the wife’s solicitors costs or disbursements for barristers fees, the husband pay to the solicitors for the wife the amount required to satisfy that invoice.
That in relation to any single expert appointed in these proceedings, pending further order, the parties are to bear the costs of that expert equally but in the first instance the husband is to meet the costs of that single expert.
That within 14 days of receipt of an invoice for an expert retained on behalf of the wife with the leave of the Court together with a document setting out the scope of the inquiry required of that expert, subject to a right to bring the proceedings back to the Court on 48 hours’ notice to the Court and to the wife’s, the husband is to pay to the solicitors for the wife the amount of that invoice.
Orders are made in terms of paragraph 9 as amended, as set out hereunder:
“9.That within one month of the…

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 Richardson and Richardson

Details

AGLC: Richardson and Richardson [2008] FamCA 1215
Case: [2008] FamCA 1215
Decision Date: 18 December 2008

CaseChat Overview and Summary

In the matter of *Richardson and Richardson*, Loughnan JR considered an application by the wife concerning property and spousal maintenance. The wife sought to dismiss the husband's application filed in September 2008 and sought orders for the husband to pay various expenses related to a property at T Street, E, including council rates, water rates, insurance premiums, and mortgage instalments. She also sought interim spousal maintenance of $400 per week and exclusive occupation of the T Street property.

The court was required to determine the terms of interim orders concerning property and spousal maintenance. This included the husband's obligations regarding the T Street property, the quantum of spousal maintenance, and the wife's exclusive occupation of the T Street property. Further issues for determination involved the husband's duty to provide advance written notice before dealing with other specified properties, and the allocation of costs for legal representation and expert reports. The court also had to address the husband's disclosure obligations.

Loughnan JR made orders reflecting the wife's amended response. The husband was ordered to pay the outgoings for the T Street property and $400 per week by way of spousal maintenance, with the wife granted exclusive occupation of that property. The husband was also required to provide advance written notice before dealing with several other properties. The court ordered the husband to pay the wife's solicitors' costs for invoices received from them, and to meet the initial costs of any single expert, to be borne equally by the parties thereafter. Additionally, the husband was ordered to provide comprehensive financial disclosure within one month.

Orders

Orders of the court

Orders are made in terms of the wife’s Response to an Application in a Case filed 14 November 2008 in terms of paragraphs 1, 2 and 3 (as amended) as set out hereunder:

“1. That the Application in a Case filed 23 September 2008 be dismissed.

2. That pending further order the respondent husband pay or cause to be paid the following:

a. In respect of the property at T Street in E (“the T Street property”) the council rates, water rates and insurance premiums.

c. All instalments of principle and interest as and when the same falls due in respect of the mortgage to the National Australia Bank (and/or any other mortgage) secured over the title of the T Street property.

d. To the wife the sum of $400 per week.

And the court noted that the payments under 1(2)(a) and (d) are by way of spousal maintenance.

That pending further order the wife be granted exclusive occupation of the T Street property.

That pending further order the husband provide advance written notice to the wife in the event that he intends to further mortgage, charge, encumber, sell or in any way deal with the properties at:

a. T Street, E

b. 2T Street, E

c. R Street, E

d. D property

e. K property

save in relation to any of those things arising under an existing facility in relation to those properties.

That within 14 days of receipt of an invoice addressed to the wife from Newnhams Solicitors in relation to the wife’s solicitors costs or disbursements for barristers fees, the husband pay to the solicitors for the wife the amount required to satisfy that invoice.

That in relation to any single expert appointed in these proceedings, pending further order, the parties are to bear the costs of that expert equally but in the first instance the husband is to meet the costs of that single expert.

That within 14 days of receipt of an invoice for an expert retained on behalf of the wife with the leave of the Court together with a document setting out the scope of the inquiry required of that expert, subject to a right to bring the proceedings back to the Court on 48 hours’ notice to the Court and to the wife’s, the husband is to pay to the solicitors for the wife the amount of that invoice.

Orders are made in terms of paragraph 9 as amended, as set out hereunder:

“9. That within one month of the date of order the husband provide to the solicitors for the wife documentation in relation to the following:

a. Full and frank disclosure by the husband in accordance with Rule 13.04.

b. To satisfy the husband’s duty of disclosure pursuant to Rule 13.07 including Rule 12.02.

c. A copy of all bank statements and credit card statements since June 2006 in relation to any account operated by the husband or upon which he is a signatory.

d. The purchase and sale of any real estate since June 2006.”

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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