Tripp & Tripp - [2013] FamCA 1107

FAMILY COURT OF AUSTRALIA

TRIPP & TRIPP

[2013] FamCA 1107

FAMILY LAW – INJUNCTIONS – Section 114(1) – Where the wife alleges the husband has improperly asserted control of Trust and income of Trust.
FAMILY LAW – LITIGATION FUNDING – INTERIM ORDERS – Where the financial matters are significantly complex – Where the wife has insufficient funds to meet her existing and future legal and associated costs – Where the wealth of the parties is controlled predominantly by the husband.
FAMILY LAW – CHILD SUPPORT DEPARTURE – INTERIM ORDERS – Where wife seeks a child support departure order and husband’s assessed rate of child support is nil – Where the husband has capacity to pay child support.
FAMILY LAW – SPOUSAL MAINTENANCE – Lump sum – Where the husband has capacity to pay maintenance as sought by the wife – Where the wife’s claimed expenses are deemed to not all be reasonable.

Family Law Act 1975 (Cth) ss 72, 74, 77, 114, 117
Child Support (Assessment) Act1989(Cth) ss 116, 117, 124

APPLICANT:

Ms Tripp

RESPONDENT:

Mr Tripp

FILE NUMBER:

MLC

8048

2012

DATE DELIVERED:

22 October 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

5 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North SC

SOLICITOR FOR THE APPLICANT:

Nicholes Family Law

COUNSEL FOR THE RESPONDENT:

Mr O’Shannessy

SOLICITOR FOR THE RESPONDENT:

Macpherson & Kelly

Orders

1.That until further order the husband pay or cause to be paid to the wife the sum of $2 500 per week by way of spousal maintenance, the first such payment to be made within seven days of the date of these orders and weekly thereafter.
2.That until further order the husband pay or cause to be paid all instalments of mortgage and rates on the property situate at Suburb B as and when they fall due.
3.That until further order pursuant to s 117 of the Child Support (Assessment) Act1989 there be a departure from the administrative assessment of child support payable by the husband to the wife with respect to the children M born … 2000 and D born … 2002 (“the children”) such that the rate of child support for the children shall be $750 per child per week such sum to be paid on a weekly basis, the first payment to be within seven days of the date of this order.
4.That until further order pursuant to s 124 of the Child Support (Assessment) Act 1989 the husband pay or cause to be paid the following expenses by way of non-periodic child support for the children in addition to the periodic child support payable pursuant to order 3 hereof as follows:-
(a)Tuition fees for the children to attend H School or such other school as may be agreed between the parties from time to time;
(b)All of the children’s other education expenses for attendance at H School including enrolment fees, compulsory building fees, school books, stationery, uniforms, school excursions, camps, and…

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: Tripp & Tripp [2013] FamCA 1107
Case: [2013] FamCA 1107
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Ms Tripp (the wife) against Mr Tripp (the husband) concerning financial matters arising from their marriage. The wife sought various interim orders, including a departure from child support assessments, spousal maintenance, litigation funding, and an equal division of income from the X Property Trust. The husband sought the dismissal of the wife's application.

The court was required to determine several legal issues. These included whether to grant interim orders for spousal maintenance, including a lump sum payment, and whether to order a departure from the assessed child support rate, considering the husband's capacity to pay. The court also had to consider the wife's claim for litigation funding due to her insufficient financial resources to meet legal costs, particularly given the husband's predominant control over the parties' wealth. Furthermore, the court examined the wife's primary application for an equal division of the net income of the X Property Trust.

In its reasoning, the court applied principles relating to interim financial relief under the *Family Law Act 1975* (Cth) and the *Child Support (Assessment) Act 1989* (Cth). The court acknowledged the wife's onus to prove her case on the balance of probabilities but limited its determination to agreed or undisputed facts due to the nature of the hearing. The court found that the husband had the capacity to pay maintenance and child support as sought, although it deemed not all of the wife's claimed expenses for spousal maintenance to be reasonable. The court also considered the significant complexity of the financial matters and the wife's limited funds in making its orders.

The court made several interim orders. These included the husband paying $2,500 per week in spousal maintenance, all mortgage and rates on a specified property, and $750 per child per week in periodic child support, along with specific non-periodic child support for educational and health expenses. The husband was also ordered to pay $175,000 for litigation funding and $29,489 by way of urgent lump sum spousal maintenance. The wife's application and the husband's response were otherwise dismissed.

Orders