Ancillary Relief

FAMILY LAW - COSTS

FAMILY LAW – APPEAL – APPEAL FROM FEDERAL MAGISTRATES COURT – SUPERANNUATION – CONTRIBUTIONS – Not established that Federal Magistrate erred in the exercise of discretion by failing to have appropriate regard to non-financial contributions of the wife to the superannuation interest of the husband, that being in the payment phase when the parties met. House v The King [1936] HCA 40; (1936) 55 CLR 499; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 and Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 cited. Circumstances of this case differed from those in Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060 and contributions post-separation were appropriately considered by Federal Magistrate. Federal Magistrate held not to have treated the superannuation interests inconsistently to non-superannuation assets.

FAMILY LAW - APPEAL – PROPERTY – 15 years of premarital relationship followed by 5 years cohabitation post marriage – Wife’s appeal against property division giving her 45% of the non-superannuation assets, representing 40% based on contribution and a 5% adjustment for s 75(2) factors – At trial both parties conceded that initial contributions should be measured not at the date of the commencement of the relationship but at the date of marriage when the parties began to commingle finances – The trial judge’s conclusion of a contribution split at 60:40 in favour of the husband unsustainable – An appropriate division taking into account the parties’ contributions was 55:45 in favour of the wife – This capital disparity and the capacity of each of the parties to adequately support themselves meant no s 75(2) adjustment was appropriate – The extent of the trial judge’s consideration of the wife’s gambling when weighing up s 75(2) factors was unclear, however any adverse consideration was not appropriate having regard to the findings that the gambling losses were relatively modest and an accepted part of the parties’ lifestyle – Appeal allowed

FAMILY LAW - APPLICATION TO EXTEND TIME TO APPEAL – Where the applicant sought an extension of time to file Notice of Appeal – Application of Gallo & Dawson [1990] HCA 30; (1990) 93 ALR 479 – Where proposed grounds of appeal raised at least one substantial issue - Where the leave application was filed reasonably promptly after the expiration of the time provided in the Family Law Rules 2004 for filing an appeal – Where the delay in filing the appeal was not solely due to the applicant – Delay was regrettable but understandable – Where applicant able to pay costs in amelioration of any prejudice experienced by the respondent if the appeal is unsuccessful – Where there is other continuing litigation between the parties currently before the Court – Failure to grant leave would constitute injustice - Extension of time granted.

FAMILY LAW - COSTS – Where applicant sought and obtained an indulgence from the Court – Applicant to pay respondent’s costs of and incidental to the application.

FAMILY LAW - APPEAL – From decision of Federal Magistrate – PRACTICE AND PROCEDURE – Subpoenas – In pending litigation of property settlement between a husband and wife, solicitors for the wife issued a subpoena to another firm of solicitors – The subpoenaed party applied to set aside the subpoena – That application failed and the production of two identified files was ordered – Other questions were reserved for further hearing – At the further hearing the Federal Magistrate dismissed the solicitor’s application for costs of the application to set aside the subpoena, ordered that the wife pay the solicitor for loss and expense in answering the subpoena and that the husband pay the solicitor a small sum of money on those accounts – It is against those orders, save for the costs order against the husband, that the solicitor appeals – The solicitor seeks that the wife pay a further sum of money for loss or expense in responding to the subpoena – Whether on the first hearing the Federal Magistrate decided that the solicitor should be awarded costs of the (failed) application to set aside the subpoena – The argument turns on the wording of the order in question – Natural reading of the order – Whether in deciding that the solicitor should not be awarded costs of the application to set aside the subpoena, the Federal Magistrate erred in considering the significance to the question of costs, of the reasons for which the application to set aside the subpoena was refused – Argued that when the Federal Magistrate addressed the question of costs of the application to set aside the subpoena he failed to give proper weight to the factors that favoured the application’s success – Whether the Federal Magistrate wrongly disallowed various items of loss and expense claimed by the solicitor – Argued that the Federal Magistrate’s approach was wrong and/or unreasonable