SHELBOURNE & SHELBOURNE - [2018] FamCA 1135

FAMILY COURT OF AUSTRALIA

SHELBOURNE & SHELBOURNE

[2018] FamCA 1135

FAMILY LAW – PROPERTY – Costs – Interim financial orders – Where the wife seeks a payment of $100,000 by way of partial property settlement for payment of legal fees and a dollar for dollar order – Where the husband opposes the orders sought – Where the wife does not have capacity to meet her legal costs and she has incurred more than $100,000 in costs unpaid – Where the Court must make an order that is enforceable – Where there is no evidence of $100,000 in liquid funds – Where no order is made for partial property settlement – Where a dollar for dollar costs order is made.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the husband seeks that an order for spousal maintenance previously made be vacated – Where it is not reasonable to interrupt the arrangement shortly before the final hearing.

Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 114, 117

Gould and Gould [1994] FamCA 75
Kartal & Dutsanee [2016] FamCA 1158
Poletti and Poletti (1990) 15 Fam LR 794
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT:

Ms Shelbourne

RESPONDENT:

Mr Shelbourne

FILE NUMBER:

SYC

4897

2017

DATE DELIVERED:

5 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

5 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dart

SOLICITOR FOR THE APPLICANT:

Clinch Neville Long Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Fortis Law Group

Orders

That pursuant to s 117 of the Family Law Act 1975:
(1.1)Within 7 days after any and all future payment(s) by or on behalf of the husband of any money in payment of accounts rendered by the husband’s solicitors and/or rendered by the husband’s barrister(s) and/or of any money in payment of a request made by the husband’s solicitors to hold funds in trust on behalf of the husband (but excluding for the payment by the husband of any single expert fees for which the husband is liable to pay), the husband shall pay or cause to be paid the same sum of money to the trust account of the solicitors of the wife, Clinch Long Woodbridge, on behalf of the wife on account of the wife’s legal costs and disbursements in these proceedings whilst ever the wife remains legally represented;
(1.2)Within 24 hours after the payment by or on behalf of the husband or any money referred to at Order 1.1, the husband shall cause to be given to the wife’s solicitors a memorandum stating the amount or amounts so paid to the wife’s solicitors;
(1.3)In the event that the payment referred to at 1.1 is not made within 7 days, the husband shall do all acts and things to direct and instruct his solicitors to forthwith pay 50 per cent of whatever sum is received by the solicitors for the husband from time to time, together with 50 per cent of all funds…

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

AGLC: SHELBOURNE & SHELBOURNE [2018] FamCA 1135
Case: [2018] FamCA 1135
Decision Date: 5 December 2018

CaseChat Overview and Summary

In the matter of *Shelbourne & Shelbourne*, Loughnan J of the Family Court of Australia considered applications by the wife for interim financial orders, including a payment of $100,000 by way of partial property settlement to cover legal fees and a dollar-for-dollar costs order. The husband opposed these orders. The wife contended she lacked the capacity to meet her legal costs, having incurred unpaid expenses exceeding $100,000. The husband also sought to vacate a previously made order for spousal maintenance, arguing it was unreasonable to interrupt the arrangement shortly before the final hearing.

The court was required to determine whether to make an order for a partial property settlement to meet the wife's legal costs, considering the enforceability of such an order and the availability of liquid funds. Additionally, the court had to decide whether to vacate the existing spousal maintenance order.

Loughnan J reasoned that an order for partial property settlement was not appropriate as there was no evidence of $100,000 in liquid funds available to the husband. However, the court did make a dollar-for-dollar costs order pursuant to s 117 of the *Family Law Act 1975*. This order mandated that the husband pay to the wife's solicitors, on account of her legal costs and disbursements, sums equivalent to any money paid by or on behalf of the husband to his own solicitors or barristers, or held in trust for him by his solicitors, excluding payments for single expert fees. The court also found it unreasonable to interrupt the existing spousal maintenance arrangement so close to the final hearing.

The court ordered that within seven days, the husband provide the mother with an authority for her to collect a motor vehicle, granting her the use of that vehicle until further order. The wife's application for a partial property settlement was dismissed, as were the husband's application to vacate the spousal maintenance order and the associated Application in a Case and Response.

Orders

Orders of the court

That pursuant to s 117 of the Family Law Act 1975:

(1.1) Within 7 days after any and all future payment(s) by or on behalf of the husband of any money in payment of accounts rendered by the husband’s solicitors and/or rendered by the husband’s barrister(s) and/or of any money in payment of a request made by the husband’s solicitors to hold funds in trust on behalf of the husband (but excluding for the payment by the husband of any single expert fees for which the husband is liable to pay), the husband shall pay or cause to be paid the same sum of money to the trust account of the solicitors of the wife, Clinch Long Woodbridge, on behalf of the wife on account of the wife’s legal costs and disbursements in these proceedings whilst ever the wife remains legally represented;

(1.2) Within 24 hours after the payment by or on behalf of the husband or any money referred to at Order 1.1, the husband shall cause to be given to the wife’s solicitors a memorandum stating the amount or amounts so paid to the wife’s solicitors;

(1.3) In the event that the payment referred to at 1.1 is not made within 7 days, the husband shall do all acts and things to direct and instruct his solicitors to forthwith pay 50 per cent of whatever sum is received by the solicitors for the husband from time to time, together with 50 per cent of all funds held on behalf of the husband’s solicitors in their trust account on behalf of the husband from time to time, to the solicitors for the wife on account of the wife’s legal costs and disbursements in these proceedings;

(1.4) The wife is at liberty to instruct her solicitors to apply all amounts paid by or on behalf of the husband to the trust account of her solicitors pursuant to this Order for the meeting of the wife’s legal costs and disbursements incurred in these proceedings; and

(1.5) Any and all money paid to the solicitors for the husband by or on behalf of the husband after the making of these Orders, together with all money held by the solicitors for the husband at the time of the making of these Orders, shall not be applied in payment of the husband’s legal costs and disbursements until such time as the same amount has been paid by or on behalf of the husband to the solicitors for the wife pursuant to these Orders.

Within seven days of today’s date the father provide to the mother an authority for her to collect from the repairers a Motor vehicle 1 and that she thereafter, until further order, have the use of that vehicle.

Otherwise, the Application in a Case filed 10 October 2018 and the Response filed 14 November 2018 are dismissed.

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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