FAMILY COURT OF AUSTRALIA
| VITTORIO & OLIPHANT | [2017] FamCA 802 |
| FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought orders in relation to litigation funding, partial property distribution and orders to compel the husband to pay her private health insurance – Where the Court is not satisfied that an order for costs should be made pursuant to section 117(1) of the Act – Where the husband has the capacity to sell a portion of his share portfolio in order to raise funds to satisfy a partial property distribution order – Orders made for the husband to pay to the wife the sum of $34,800 by way of partial property distribution – Orders made granting the parties liberty to apply on seven days’ notice to the other party and the Court in regards to the wife’s application for the husband to pay her private health insurance. |
FAMILY LAW – SPOUSAL MAINTENANCE – INTERIM PROCEEDINGS – Where the wife sought orders for urgent spousal maintenance and interim spousal maintenance – Where the wife does not have any children and receives a gross income of $210,000 – Where there is no evidence that the wife is suffering from any disability – Court finds that in relation to urgent spousal maintenance the wife has not established that her indebtedness has given rise to an immediate need for financial assistance in terms of section 77 of the Act – Court finds that in relation to interim spousal maintenance the wife has not satisfied the requirement set out in section 72(1) of the Act – Both applications for urgent and interim spousal maintenance dismissed.
| Family Law Act 1975 (Cth) ss 72(1), 75(2), 77, 79, 79(4) 80(1), 117, 117(2A) Family Law Rules 2004 (Cth) pt 13 |
Ashton & Ashton (1982) 8 Fam LR 675
Antmann and Antmann (1980) FLC 90-908
Bircher and Bircher [2016] FamCAFC 123
Esdale & Schenk [2012] FamCA 111
Gabel & Yardley (2008) 40 FamLR 66
Hall & Hall (2016) 257 CLR 490
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Klearchos & Klearchos and Ors [2015] FamCAFC 217
Malcolm & Malcolm (1977) FLC 90 - 22
Medlow & Medlow (2016) FLC 93-692
Sadlier & Sadlier [2015] FamCAFC 130
Selena and Montez and Ors [2017] FamCA 583
Stanford & Stanford [2012] HCA 5
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166
Sully & Sully(No. 2) [2016] FamCA 706
Page & Page (1987) FLC 91-806
APPLICANT: | Ms Vittorio | ||||
| RESPONDENT: | Mr Oliphant | ||||
| FILE NUMBER: | SYC | 4127 | of | 2017 | |
| DATE DELIVERED: | 9 October 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 21 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Kennedy |
| SOLICITOR FOR THE APPLICANT: | Horton Rhodes Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd |
| SOLICITOR FOR THE RESPONDENT: | Clinch Long Woodbridge |
Orders
THE COURT ORDERS THAT:
Within 60 days of the date of these orders the husband pay to the wife the sum of $34,800 by way of partial property distribution.
The wife’s application for…
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- AGLC
- VITTORIO & OLIPHANT [2017] FamCA 802
- Case
- [2017] FamCA 802
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to make an order for costs pursuant to section 117(1) of the Family Law Act 1975 (Cth), and to consider the wife's applications for litigation funding and payment of private health insurance. The court also had to assess the husband's capacity to satisfy a partial property distribution order.
McClelland J reasoned that while a power to make orders for litigation funding might exist, such discretion must be exercised in accordance with relevant legislative criteria, as emphasised in cases such as *Esdale & Schenk*. The court noted that applications for litigation expenses are typically brought under interim property orders rather than the costs power, as section 117(1) presents an obstacle to be overcome. The wife's arguments for costs under section 117(2A)(a) and (c) were not sufficiently established, particularly in light of the husband's submissions regarding the wife's non-disclosure of employment offers. The court found that the husband had the capacity to sell a portion of his share portfolio to satisfy a partial property distribution.
The court ordered the husband to pay the wife $34,800 by way of partial property distribution within 60 days. The wife's application for the husband to pay her private health insurance was stood over, with liberty to apply on seven days' notice. The wife's application in a case filed on 6 July 2017 was otherwise dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.
Within 60 days of the date of these orders the husband pay to the wife the sum of $34,800 by way of partial property distribution.
2.
The wife’s application for orders for the husband to take all steps necessary to continue her membership with her current private health insurer is stood over.
3.
The parties have liberty to apply on seven days’ notice to the other party and the Court in respect to the issue referred to in order 2 herein.
4.
The wife’s Application in a Case filed on 6 July 2017 is otherwise 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
I recognise, however, that it is generally accepted, in this jurisdiction, that such a power exists. Even accepting that to be the case, it is important to recognise that any judicial discretion, bestowed by legislation, must be exercised in accordance with the relevant legislative criteria. This is made clear in in Esdale & Schenk[15] where Murphy J said:While the cases in respect of matrimonial causes reveal multiple heads of power for the making of any order, those same cases also emphasise that each is much more than a convenient vehicle for achieving the same end. If the property power is relied upon, the relevant requisites of justice and equity must be complied with; if the maintenance power is to be relied upon, the relevant requisites of need, capacity and propriety must be met. So, too, where the costs power is relied upon. The majority in Strahan emphasise this very point by pointing out clearly that the relevant head of power under which the order is sought must be clearly identified.The exercise of the costs power does not merely involve a consideration of the s 117(2A) matters. It also involves paying proper regard to s 117(1). That is, the Application must be judged by reference to the primary position that “each party shall bear his or her own costs”.Even where proceedings involve a matrimonial cause and jurisdiction is not in issue and even where, within those proceedings, an applicant for litigation expenses can establish an entitlement to ultimate relief, it by no means follows that litigation expenses will be awarded by reference to s 117 as the head of power. Section 117(1) remains, as it were, an obstacle that must be overcome. Indeed, it might be thought that this consideration explains why it is almost invariable that applications of this type are brought in reliance upon the power to make interim property orders and not the costs power (emphasis added).[15] [2012] FamCA 111 at [66]-[68]; see also Klearchos & Klearchos and Ors [2015] FamCAFC 217 at [85]-[91]. Counsel for the wife acknowledged that the wife was not, at this stage of the proceedings, in a position to address all of the matters set out in section 117(2A). The focus of the wife’s argument was on section 117(2A)(a) and 117(2A)(c) as justifying the making of an order for costs. Dealing first with section 117(2A)(c), the wife argued that the Court should have regard to the fact that the husband, through his solicitors, had made various offers to the wife to provide financial support to her but those offers did not come to fruition. The husband, on the other hand, argued that he did not follow through in respect to those offers because the wife had not disclosed to him that she had received the offer of employment from her current employer on 13 June 2017 and, further, she had not disclosed that, the day before she commenced proceedings, she had signed a contract of employment with her current employer providing for an income of $210,000 gross per annum. There is evidence in the form of correspondence between the parties’ solicitors that is attached to the wife’s affidavits indicating that the husband did in fact make offers to pay some moneys to the wife. It was accepted that those offers have now been withdrawn.