Rigby and Kingston & Ors - [2020] FamCA 958

FAMILY COURT OF AUSTRALIA

RIGBY & KINGSTON AND ORS

[2020] FamCA 958

FAMILY LAW – COSTS – Litigation funding – Circumstances justifying order – Where the husband seeks further litigation funding – Where the wife is in a far superior financial position to that of the husband – Where the proceedings involve complex property issues –Where the wife has already paid at least $412,000 towards the husband’s legal costs since the commencement of the proceedings – Where if the wife is successful in the substantive proceedings the sums already paid by her to the husband will be unable to be taken into account or repaid – Where the further sum sought by the husband will not bring the matter to a conclusion – Where on balance it is not just to make a further litigation funding order – Application dismissed.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the husband seeks interim spousal maintenance in the sum of $962 a week – Where the husband’s employment has been recently terminated and he has been unable to obtain another job – Where the wife contends that the husband has failed to satisfy the onus of establishing that he is unable to support himself adequately – Where the husband should be afforded a reasonable time within which to find new employment – Where the wife is ordered to pay the husband $962 a week in spousal maintenance until April 2021.

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Where this matter has proceeded on the basis that there will be a series of trial dates addressing particular issues – Where findings have been made in relation to ten specific issues however the dispute has not been resolved – Where the matter will be listed for a further series of trial dates for the determination of four further issues.

Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 117

Breen & Breen (1990) 65 ALJR 195
Collins & Collins (1985) FLC 91-603
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123
Hall & Hall (2016) FLC 93-709
Harris &Harris
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener)
In the marriage of Bevan and Bevan (1995) FLC 92-600
Kingston & Kingston (No.2) (1981) FLC 91-108
Kryiakos & Kryiakos (2013) FLC 93-528
Penfold v Penfold (1980) 144 CLR 311
Rakete & Rakete (2012) 48 Fam LR 325
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Salvage v Fosse (2020) 61 Fam LR 45
Stanford& Stanford (2012) 247 CLR 108
Strahan &Strahan (Interim Property Orders)
Wall & Mitchell [2010] FamCA 1194
Wilson & Wilson (1989) FLC 92-033

APPLICANT:

Mr Rigby

RESPONDENT:

Ms Kingston

THIRD PARTY RESPONDENTS:

Mr F Kingston (2^nd)

Mr G Kingston (3^rd)
~~Kingston (New South Wales) Pty Ltd (4^th)~~
~~H Pty Ltd (5^th)~~
~~J Pty Ltd (6^th)~~
~~K Pty Ltd…~~

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 Rigby and Kingston & Ors

Details

AGLC: Rigby and Kingston & Ors [2020] FamCA 958
Case: [2020] FamCA 958
Decision Date: 13 November 2020

CaseChat Overview and Summary

In the Family Court of Australia, before Carew J, the proceedings involved a husband and wife, with other respondents also noted. The husband sought further litigation funding and interim spousal maintenance. The wife contended that the husband had not satisfied the onus of establishing his inability to support himself adequately, despite her significantly superior financial position and substantial prior contributions to his legal costs. The dispute also involved complex property issues, with a history of trial dates addressing specific issues without full resolution.

The court was required to determine whether to grant the husband's application for further litigation funding, considering the wife's financial advantage, the complexity of the property matters, and the fact that previous funding by the wife would not be recoverable if she succeeded. Additionally, the court had to assess the husband's claim for interim spousal maintenance, balancing his recent job termination against the wife's argument that he had not met the threshold for demonstrating an inability to self-support, and considering a reasonable period for him to find new employment. The court also needed to manage the ongoing litigation, which had already involved findings on ten specific issues but remained unresolved.

Regarding litigation funding, the court found that on balance, it was not just to make a further order, and thus dismissed the husband's application. In relation to spousal maintenance, the court ordered the wife to pay the husband $962 per week until 16 April 2021, allowing him a reasonable period to secure new employment. The proceedings were to continue with a further series of trial dates allocated for three days commencing 13 April 2021, to determine four outstanding issues concerning the wife's interests in the "Kingston Group" property, the effect of an Umbrella Deed, the wife's other sources of financial support, and whether a property settlement order under s 79(1) of the *Family Law Act 1975* (Cth) would be just and equitable. Directions were also given for the filing of further affidavits, case outlines, and amended Points of Claim, with liberty for other respondents to participate.

Orders

Orders of the court

ORDER

1. The husband’s application for litigation funding be dismissed.

2. The wife pay weekly spousal maintenance to the husband in the sum of $962 with the first payment to be made on or before 20 November 2020 and weekly thereafter until 16 April 2021.

3. A further series of trial dates be allocated for three days commencing on 13 April 2021 where the following issues will be determined:

3. (a) What are the wife’s existing legal and equitable interests in any property including in any companies and trusts comprising the “Kingston Group” as identified in schedule 1 to the Umbrella Deed dated 13 February 2014?

3. (b) What is the effect, if any, of the Umbrella Deed on any existing legal and equitable interests of the wife?

3. (c) Does the wife have a source of financial support, other than any property in which she has an existing legal or equitable interest, which she can reasonably expect will be available to her to supply a financial need or deficiency?

3. (d) Is it just and equitable to make an order under s 79(1) of the Family Law Act 1975 (Cth)?

4. Each party be at liberty to file and serve one further affidavit of evidence in chief by each witness upon which they intend to rely in relation to the issues listed above on or before 12 March 2021 and be permitted to rely upon particularised paragraphs in previous affidavits filed in these proceedings.

5. The husband and wife file and serve a case outline no later than three business days prior to the commencement of the further dates for trial identifying with precision the material to be relied upon (including the particular paragraphs of previous affidavits) and a summary of argument.

6. The other respondents be at liberty to participate in the further dates for trial and if election is made to do so then the other respondents are also to file a case outline no later than three business days prior to the commencement of the further dates for trial identifying with precision the material to be relied upon (including the particular paragraphs of previous affidavits) and a summary of argument.

7. The husband file and serve amended Points of Claim in compliance with paragraph 3 of the order made 13 December 2019 on or before 1 February 2021.

8. If any of the parties at any stage forms the view that the matter may not be ready to proceed on the allocated dates, or may require a longer time for hearing than the allocated dates, or may require a shorter time for hearing than the allocated dates that party must contact the Case Coordinator by email to …@familycourt.gov.au on notice to the other parties to seek that the matter be urgently relisted.

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 Rigby & Kingston 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 the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

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.