SHELBOURNE & SHELBOURNE

Case [2019] FamCAFC 196

FAMILY COURT OF AUSTRALIA

SHELBOURNE & SHELBOURNE [2019] FamCAFC 196

FAMILY LAW – APPEAL – PROPERTY – Where an order pursuant to s 117 of the Family Law Act 1975 (Cth) for a dollar-for-dollar order is made in favour of the wife – Where the primary judge made an order not to discharge the dollar-for-dollar order at the final hearing – Where the husband incurred but did not pay his own legal expenses – Where the final order creates an additional liability for the husband and a corresponding asset for the wife – Where the primary judge erred by failing to consider the impact of the order in the just and equitable division of property – Appeal allowed – Order as to the continued dollar-for-dollar order set aside.

FAMILY LAW – APPEAL – COSTS – Where the appeal succeeds on a question of law – No order as to costs – Costs certificate granted.
Family Law Act 1975 (Cth) ss 74, 79, 80 and 117
Federal Proceedings (Costs) Act 1981 (Cth) s 6 and s 9
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Klearchos & Klearchos [2015] FamCAFC 217
Shelbourne & Shelbourne [2018] FamCA 1135
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2011] FamCAFC 126
Zschokke & Zschokke (1996) FLC 92-693; [1996] FamCA 79
APPELLANT: Mr Shelbourne
RESPONDENT: Ms Shelbourne
FILE NUMBER: SYC 4897 of 2017
APPEAL NUMBER: EA 34 of 2019
DATE DELIVERED: 4 November 2019
PLACE DELIVERED: Cairns
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace, Ryan & Tree JJ
HEARING DATE: 24 September 2019
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 8 March 2019
LOWER COURT MNC: [2019] FamCA 122

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Sansom SC
SOLICITOR FOR THE APPELLANT: Fortis Law Group
COUNSEL FOR THE RESPONDENT: Ms Dart
SOLICITOR FOR THE RESPONDENT: Clinch Long Woodbridge Lawyers

Orders

  1. The appeal EA 34 of 2019 be allowed.

  2. Order 18 of the Orders made 8 March 2019 be set aside.

  3. That there be no order as to costs.

  4. The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

  5. The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

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 Shelbourne & Shelbourne has been approved…

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SHELBOURNE & SHELBOURNE [2019] FamCAFC 196
Case
[2019] FamCAFC 196
Decision Date

CaseChat Overview and Summary

The appeal before the court involved a dispute between the parties concerning the final orders made in relation to their property settlement following a divorce. The wife appealed against an order made by the primary judge, which included a dollar-for-dollar order in her favour, and a provision that this order should not be discharged at the final hearing. The husband, who had incurred legal expenses but did not pay them, argued that the primary judge erred in not considering the impact of this order on the just and equitable division of property.

The central legal issues the court had to address were whether the primary judge erred in making the dollar-for-dollar order and whether this error affected the overall fairness of the property settlement. The court needed to determine if the primary judge's failure to consider the impact of this order on the husband's financial position constituted a significant error that warranted setting aside the order.

The court found that the primary judge did indeed err by not considering the impact of the dollar-for-dollar order on the just and equitable division of property. The court concluded that this error materially affected the fairness of the property settlement. Consequently, the appeal was allowed, and the order that the dollar-for-dollar order should not be discharged was set aside. The court also noted that since the appeal succeeded on a point of law, there was no order as to costs between the parties. However, both parties were granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth), allowing them to seek costs from the Attorney-General.

Orders

Orders of the court

1.

The appeal EA 34 of 2019 be allowed.

2.

Order 18 of the Orders made 8 March 2019 be set aside.

3.

That there be no order as to costs.

4.

The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

5.

The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

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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