Rimac and Rimac (No 2) - [2020] FamCA 919

FAMILY COURT OF AUSTRALIA

RIMAC & RIMAC (NO. 2)

[2020] FamCA 919

FAMILY LAW – PRACTICE AND PROCEDURE – Summary Dismissal – Adjournment – additional orders – Where the husband has made an Application for a summary dismissal of wife’s Application for Final Orders, an Application for all Orders made in the proceedings to be dismissed, an Application to enforce orders made by the Supreme Court of New South Wales, an Application to dismiss an Application for divorce, an Application for investigations to be initiated against the wife, an Application for caveats on real property, an Application for the wife’s solicitors to be removed from acting, an Application for orders for further disclosure and for the husband to be represented by his non-legally trained brother, and an Application for an adjournment of the final hearing set down in this matter – Where the wife opposes all Applications – Applications dismissed – Adjournment granted.

FAMILY LAW – COSTS – Where the wife has made an Application for indemnity costs in respect of the husband’s Applications – Orders made for the husband to pay the wife’s costs on an indemnity basis in a fixed sum within 28 days.

Family Law Act 1975 (Cth) Pt VIII,
Protected Estates Act 1983 (NSW)

Family Law Rules 2004 (Cth) r 12.13, Ch 13

Batey-Elton & Elton (2010) 43 Fam LR 62
Karlsson and Karlsson [2020] FamCAFC 207
Price v Underwood (Divorce Appeal) (2009) 231 FLR 308
Stoian & Flemming (Costs) [2014] FamCA 944

APPLICANT:

Mr Rimac

RESPONDENT:

Ms Rimac

FILE NUMBER:

SYC

1540

2014

DATE DELIVERED:

2 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

16 October 2020

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Mr C Rimac, with leave to appear as a McKenzie friend to address the Court;
The Respondent by telephone.

SOLICITOR FOR THE RESPONDENT:

Mr M Taylor of Hughes & Taylor

Orders

Mr Rimac’s (“the husband”) Application in a Case filed 9 September 2020 and further Application in a Case provided to the Court on 1 October 2020 are dismissed.
Within 28 days, the husband is to pay the costs of Ms Rimac (“the wife”) in and in relation to the proceedings heard by the Court on 16 October 2020 in the sum of $4,500.
The hearing dates of 24, 25 and 26 November 2020 are vacated.
This matter is listed for a defended hearing for a period of five (5) days commencing 3 May 2021.
By close of business on 15 March 2021, the parties are each to make updated disclosure to the other parties pursuant to the Family Law Rules 2004 (Cth).
By close of business on 29 March 2021, each of the parties file and serve an updated financial statement.
By close of business on 29 March 2021, each of the parties shall file and serve one (1) consolidated affidavit which addresses the property matters under the following headings:
(a)Assets, liabilities, resources and superannuation as at the date of cohabitation.
(b)Financial contributions made 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.

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Details

Case: [2020] FamCA 919
Decision Date: 2 November 2020

CaseChat Overview and Summary

In the matter of *Rimac and Rimac (No 2)*, the husband, Mr Rimac, filed numerous applications seeking the summary dismissal of the wife’s application for final orders, the dismissal of all orders made in the proceedings, enforcement of Supreme Court of New South Wales orders, dismissal of a divorce application, initiation of investigations against the wife, caveats on real property, removal of the wife’s solicitors, further disclosure, and representation by his brother. The wife opposed all of these applications. The proceedings were heard by McClelland DCJ.

The primary legal issues before the Court were whether to grant the husband's various applications for dismissal and other relief, and whether to grant the husband's application for an adjournment of the final hearing. Additionally, the Court was required to consider the wife's application for indemnity costs in relation to the husband's applications.

McClelland DCJ dismissed all of the husband's applications, finding them to be without merit. The Court granted the husband's application for an adjournment of the final hearing, but imposed strict conditions on the parties regarding future disclosure and the filing of affidavits addressing specific property matters. The Court also ordered the husband to pay the wife's costs on an indemnity basis in a fixed sum of $4,500 within 28 days. The hearing dates previously set were vacated, and the matter was relisted for a defended hearing commencing on 3 May 2021.

Orders

Orders of the court

Mr Rimac’s (“the husband”) Application in a Case filed 9 September 2020 and further Application in a Case provided to the Court on 1 October 2020 are dismissed.

Within 28 days, the husband is to pay the costs of Ms Rimac (“the wife”) in and in relation to the proceedings heard by the Court on 16 October 2020 in the sum of $4,500.

The hearing dates of 24, 25 and 26 November 2020 are vacated.

This matter is listed for a defended hearing for a period of five (5) days commencing 3 May 2021.

By close of business on 15 March 2021, the parties are each to make updated disclosure to the other parties pursuant to the Family Law Rules 2004 (Cth).

By close of business on 29 March 2021, each of the parties file and serve an updated financial statement.

By close of business on 29 March 2021, each of the parties shall file and serve one (1) consolidated affidavit which addresses the property matters under the following headings:

(a) Assets, liabilities, resources and superannuation as at the date of cohabitation.

(b) Financial contributions made the period of cohabitation.

(d) Contributions made as a homemaker during the period of cohabitation.

(e) Assets, liabilities, resources and superannuation as at the date of separation.

(f) Contributions of any kind made post cohabitation.

(g) Additional evidence upon which the party relies in support of any adjustment pursuant s 75 (2) of the Family Law Act 1975 (Cth).

(h) Any other fact that is relevant to the Court’s exercise of discretion.

The practitioners for the parties are each to file and serve electronically to ... by no later than seven (7) days prior to the hearing, setting out the following:

(a) a concise set of Orders to be sought if different from those already filed;

(b) a list of the applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;

(d) an updated balance sheet; and

(e) a bullet-point summary of argument in relation to the issues in dispute.

In the event that any party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.

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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