FAMILY COURT OF AUSTRALIA
| STRAHAN & STRAHAN (LEAVE TO APPEAL INTERIM ORDERS AND APPEAL AGAINST COSTS ORDER) | [2011] FamCAFC 126 |
| FAMILY LAW - APPEAL – Appeal against the trial Judge’s dismissal of the wife’s application for interim property settlement – Whether the trial Judge erred in declining to award the wife, by way of an order for interim property settlement, what the husband assertedly conceded to be the wife’s minimum entitlement to the property of the parties – In circumstances where the wife’s case before the trial Judge was not formulated on this basis, and where the trial Judge was in no position to determine the value of the property of the parties at that stage, error not established. FAMILY LAW - APPEAL – Appeal against the trial Judge’s order for spousal maintenance – In circumstances where the wife claimed an amount of spousal maintenance far in excess of the amount of weekly expenses detailed by her, not established that the trial Judge erred in making an award for the lesser amount. FAMILY LAW - APPEAL – Appeal against the trial Judge’s order for payment to the wife for legal expenses – Where the trial Judge had declined to make an award for the whole of the amount claimed by the wife – Where the basis upon which the sum awarded was calculated is unable to be discerned – Error established – Appeal allowed and discretion re-exercised. |
| Family Law Act 1975 (Cth) |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Rutherford & Rutherford (1991) FLC 92-255 |
| APPELLANT: | Mrs Strahan |
| RESPONDENT: | Mr Strahan |
| FILE NUMBER: | ADF | 228 | of | 2005 |
| APPEAL NUMBERS: | SA SA | 41 66 | of of | 2010 & 2010 |
| DATE DELIVERED: | 10 June 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Coleman, May and Murphy JJ |
| HEARING DATE: | 2 May 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 May 2010 & 13 August 2010 |
| LOWER COURT MNC: | [2010] FamCA 423 & [2010] FamCA 708 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Brown SC assisted by Mr Holland |
| SOLICITOR FOR THE APPELLANT: | Winter & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Bartfield SC |
| SOLICITOR FOR THE RESPONDENT: | Robinson & Mason |
Orders
That the wife’s application for leave to appeal against the orders of 31 May 2010 dismissing her application for interim property settlement and interim spousal maintenance be dismissed.
That the wife be granted leave to appeal against the interim orders for costs of 13 August 2010.
That the wife’s appeal against the interim orders for costs of 13 August 2010 be allowed.
That, in lieu of the sum of $825,000.00 in order 12 of the orders of 13 August 2010, there be inserted the sum of $1,687,250.
That there be no order as to costs of and incidental to these appeals.
IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan (leave to appeal interim orders and appeal against costs order) is approved pursuant…
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- AGLC
- Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126
- Case
- [2011] FamCAFC 126
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge had erred in dismissing the wife's application for an interim property settlement, in ordering a lesser amount for spousal maintenance, and in awarding an insufficient amount for legal expenses. The wife argued that the trial judge had erred in not awarding her the minimum entitlement to the property, had not adequately considered her claims for spousal maintenance, and had not properly calculated the amount for legal expenses.
The court found that the trial judge had not erred in dismissing the wife's application for interim property settlement or in ordering a lesser amount for spousal maintenance, as the wife had not formulated her case on the basis of the husband's asserted minimum entitlement, and the trial judge could not have determined the value of the property at that stage. However, the court did find that the trial judge had erred in the calculation of the amount for legal expenses, as the basis for the sum awarded was unclear. The court allowed the appeal on this point and re-exercised the discretion, increasing the amount awarded for legal expenses.
The orders of the court were that the wife's application for leave to appeal against the dismissal of her application for interim property settlement and spousal maintenance be dismissed. However, the wife was granted leave to appeal against the interim orders for costs. The appeal against the interim orders for costs was allowed, and the sum awarded was increased from $825,000 to $1,687,250. There was no order as to costs of and incidental to these appeals.
Orders
Orders of the court
1.
That the wife’s application for leave to appeal against the orders of 31 May 2010 dismissing her application for interim property settlement and interim spousal maintenance be dismissed.
2.
That the wife be granted leave to appeal against the interim orders for costs of 13 August 2010.
3.
That the wife’s appeal against the interim orders for costs of 13 August 2010 be allowed.
4.
That, in lieu of the sum of $825,000.00 in order 12 of the orders of 13 August 2010, there be inserted the sum of $1,687,250.
5.
That there be no order as to costs of and incidental to these appeals.
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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