Widmann & Widmann - [2016] FamCA 1164

FAMILY COURT OF AUSTRALIA

WIDMANN & WIDMANN

[2016] FamCA 1164

FAMILY LAW – PROPERTY – INTERIM – Partial property settlement – Application by the wife for interim relief in the amount of $80,000 to be applied towards her legal costs – Classification of payment as costs or partial property settlement – Where the husband opposes the wife’s application but would prefer such a payment be made pursuant to s 79 rather than s 117 of the Family Law Act 1975 (Cth) – Where the wife has previously received an interim costs order – Where the net assets are held by the husband – Order made that the husband cause payment of $80,000 to the wife by way of partial property settlement to be applied towards the wife’s legal costs.

Family Law Act 1975 (Cth)

Harris and Harris (1993) FLC 92‑378
Medlow & Medlow (2016) FLC 93-692
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim property orders) (2011) FLC 93-466

APPLICANT:

Ms Widmann

RESPONDENT:

Mr Widmann

FILE NUMBER:

SYC

2334

2012

DATE DELIVERED:

16 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

16 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Balafas
Rockliffs Solicitors & IP Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Knox

SOLICITOR FOR THE RESPONDENT:

Pearson Emerson Meyer

Orders

Not later than the close of business on 16 January 2017, unless the parties otherwise agree in writing, the husband do all acts and things and sign all documents necessary to cause a payment by way of partial property settlement s 79 Family Law Act 1975 (Cth) in the sum of $80,000 to the trust account of the solicitors for the wife, Rockliffs Solicitors, Westpac Bank BSB …Account No …57 to be applied towards the wife’s legal costs associated with these proceedings.
The question of the costs of the parties of and incidental to the proceedings today is reserved.

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 Widmann & Widmann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC2334 of 2012

Ms Widmann

Applicant

And

Mr Widmann

Respondent

REASONS FOR JUDGMENT

These are proceedings in the context of proceedings for settlement of property. I think the property settlement proceedings might have started in 2013. An application was filed by the wife, probably in the Federal Circuit Court, in August of 2013. In the context of those proceedings there is an application in a case filed 6 December 2016, first returnable today,…

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.

Continue reading Widmann & Widmann

Details

AGLC: Widmann & Widmann [2016] FamCA 1164
Case: [2016] FamCA 1164
Decision Date: 16 December 2016

CaseChat Overview and Summary

In *Widmann & Widmann*, the husband was ordered by Loughnan J of the Federal Circuit Court of Australia to make a payment of $80,000 to the wife’s solicitors. This payment was to be applied towards the wife’s legal costs in the proceedings.

The central legal issue before the court was the appropriate disposition of property under section 79 of the *Family Law Act 1975* (Cth), specifically in relation to the wife's legal costs. The court was required to determine whether a partial property settlement in the sum of $80,000 was warranted to address these costs.

Loughnan J reasoned that a partial property settlement was necessary to facilitate the wife's continued participation in the proceedings by covering her legal expenses. The court ordered the husband to take all necessary steps to ensure the payment of $80,000 to the wife's solicitors by a specified date, unless the parties agreed otherwise in writing. The question of the costs of the proceedings themselves was reserved.

Orders

Orders of the court

Not later than the close of business on 16 January 2017, unless the parties otherwise agree in writing, the husband do all acts and things and sign all documents necessary to cause a payment by way of partial property settlement s 79 Family Law Act 1975 (Cth) in the sum of $80,000 to the trust account of the solicitors for the wife, Rockliffs Solicitors, Westpac Bank BSB …Account No …57 to be applied towards the wife’s legal costs associated with these proceedings.

The question of the costs of the parties of and incidental to the proceedings today is reserved.

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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