Scott and Scott (No. 2) - [2019] FamCA 599

FAMILY COURT OF AUSTRALIA

SCOTT & SCOTT (NO. 2)

[2019] FamCA 599

FAMILY LAW – COSTS – PRACTICE AND PROCEDURE – Adjournment – Where the parties are involved in a dispute about the division of property under Part VIII of the Family Law Act 1975 (Cth) – Where the parties’ preliminary dispute over the validity and enforceability of a binding financial agreement was listed for trial over three days – Where the applicant wife failed to properly and comprehensively plead her case – Where the respondent husband sought an adjournment of the trial so the wife could file amended pleadings enabling him to understand and answer the totality of her case with supplementary evidence – Where the husband also made an application for the wife to pay his costs of the trial thrown away – Where the wife’s conduct of the proceedings entitled the husband to an order for costs – Ordered the parties’ applications for property settlement relief is adjourned – Ordered the wife pay the husband’s costs of and incidental to the trial thrown away by the adjournment of the trial – Where such costs to be paid on a party/party basis in the sum agreed or assessed.

Family Law Act 1975 (Cth) Part VII, ss 90C, 90G, 90K, 90KA, 117
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116 Limousin & Limousin(Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Yunghanns & Yunghanns (2000) FLC 93-029; [2000] FamCA 681

APPLICANT:

Ms Scott

RESPONDENT:

Mr Scott

FILE NUMBER:

CRC

105

2016

DATE DELIVERED:

22 August 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

22 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Carolan

SOLICITOR FOR THE RESPONDENT:

Green & McKay

Orders

The wife shall pay the husband’s costs of and incidental to the trial, fixed from 19 to 21 August 2019 inclusive, thrown away by reason of the adjournment of the trial, such costs to be paid on a party/party basis in the sum agreed or assessed.
The proceedings are re-fixed for trial before Justice Austin at 10:00 am on Monday, 4 November 2019, for a period of three days.
The setting down and trial fees shall be paid by the parties in equal shares, within one month of the date of these orders.
The applicant wife shall file and serve by Friday, 6 September 2019, an amended Statement of Pleadings (with proper and sufficient particulars) setting out the grounds upon which she alleges:
a.The Financial Agreement signed by her on 20 December 2010 and by the respondent husband on 4 February 2011 (“the Financial Agreement”) is not binding upon them pursuant to s 90G of the Family Law Act, or if binding
b.The Financial Agreement should be set aside pursuant to the provisions of ss 90K and 90KA of the Family Law Act.
The respondent husband shall file and serve any Amended Response by

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 Scott and Scott (No. 2)

Details

AGLC: Scott and Scott (No. 2) [2019] FamCA 599
Case: [2019] FamCA 599
Decision Date: 22 August 2019

CaseChat Overview and Summary

In *Scott and Scott (No. 2)*, Austin J of the Family Court of Australia considered an application by the wife to set aside a financial agreement. The dispute centred on the validity and enforceability of a financial agreement entered into by the parties on 20 December 2010 and 4 February 2011, respectively.

The primary legal issues before the court were whether the financial agreement was binding on the parties pursuant to section 90G of the *Family Law Act 1975* (Cth), and if it was binding, whether it should be set aside under sections 90K and 90KA of the Act. The wife was required to provide proper and sufficient particulars of the grounds upon which she alleged the agreement was not binding or should be set aside.

Austin J directed the wife to file an amended Statement of Pleadings detailing her claims regarding the financial agreement's validity and the grounds for setting it aside. The court also set a new trial date and outlined a timetable for the parties to file and serve further pleadings and affidavits. The wife was ordered to pay the husband's costs thrown away by a previous adjournment of the trial.

Orders

Orders of the court

The wife shall pay the husband’s costs of and incidental to the trial, fixed from 19 to 21 August 2019 inclusive, thrown away by reason of the adjournment of the trial, such costs to be paid on a party/party basis in the sum agreed or assessed.

The proceedings are re-fixed for trial before Justice Austin at 10:00 am on Monday, 4 November 2019, for a period of three days.

The setting down and trial fees shall be paid by the parties in equal shares, within one month of the date of these orders.

The applicant wife shall file and serve by Friday, 6 September 2019, an amended Statement of Pleadings (with proper and sufficient particulars) setting out the grounds upon which she alleges:

a. The Financial Agreement signed by her on 20 December 2010 and by the respondent husband on 4 February 2011 (“the Financial Agreement”) is not binding upon them pursuant to s 90G of the Family Law Act, or if binding

b. The Financial Agreement should be set aside pursuant to the provisions of ss 90K and 90KA of the Family Law Act.

The respondent husband shall file and serve any Amended Response by Friday, 13 September 2019.

The respondent husband shall file and serve such further affidavits upon which he wishes to rely at trial in response to the wife’s amended Statement of Pleadings by Friday, 27 September 2019.

In the event that Ms DD, solicitor, is unwilling to furnish the respondent husband with an affidavit in these proceedings, leave is granted to the husband to issue to Ms DD a subpoena requiring her attendance at Court on Monday, 4 November 2019.

The applicant wife shall file and serve by Friday, 11 October 2019, any affidavit in reply to any supplementary affidavit filed and served by the husband pursuant to Order 6 hereof.

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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