Aarons & Aarons

Case [2021] FamCA 530


FAMILY COURT OF AUSTRALIA

Aarons & Aarons [2021] FamCA 530

File number(s): MLC 6647 of 2021
Judgment of: WILSON J
Date of judgment: 21 July 2021
Catchwords:

FAMILY LAW – FINANCIAL AGREEMENT – application in this court to set aside that agreement.

FAMILY LAW – PRACTICE AND PROCEDURE – application for expedition under rule 12.10A.

FAMILY LAW – CONCURRENT LITIGATION – in Supreme Court of Victoria – only directions given in proceeding in that other court.

FAMILY LAW – CROSS VESTING – applications yet to be determined.

FAMILY LAW – CORPORATIONS ACT – 28 corporations in Supreme Court proceeding part of asset pool – applications for their winding up.

Legislation:

Corporations Act 2001 (Cth)

Jurisdiction ofCourts (Cross-vesting) Act 1987 (Cth) s 5

Family Law Act 1975 (Cth) ss 21(2A), 75, 79, 90C

Family Law Rules 2004 (Cth) rr 5.02, 12.10A

Cases cited:

Lin & Yew (2020) 62 Fam LR 244

Santos Ltd v Helix Energy Services Pty Ltd (2009) 28 VR 595

Simonidis Steel Lawyers Brisbane Pty Ltd v Johnston [2015] QSC 81

Stanford v Stanford (2012) 247 CLR 108

Undershaft (No. 1) Ltd & Commissioner of Taxation (2009) 175 FCR 150

Wigmans v AMP Ltd [2018] NSWSC 1118

Wileypark Pty Ltd v AMP (2018) 265 FCR 1

Number of paragraphs: 27
Date of hearing: 20 & 21 July 2021
Place: Melbourne
Counsel for the Applicant: Mr T. D. O. J. North SC with Mr R. Smith
Solicitor for the Applicant: Kennedy Partners
Counsel for the Respondent: Mr P. Jopling AM QC with Mr C. Nehmy and Ms J. Collins
Solicitor for the Respondent: King Wood Mallesons

ORDERS

MLC 6647 of 2021
BETWEEN:

MR AARONS

Applicant

AND:

MS AARONS

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

21 JULY 2021

THE COURT ORDERS THAT:

1.Leave is granted under r 12.10A of the Family Law Rules to proceed with expedition in this proceeding.

2.I direct the parties to bring in minutes by 4:00pm on Friday 23 July 2021 giving effect to a timetable for the filing of affidavit evidence and submissions.

3.I fix 18, 19, 20, 21 and 22 October 2021 for the trial of the husband’s application to set aside the financial agreement.

4.I reserve costs of and incidental to this application.

5.I certify for counsel including Senior Counsel.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aarons & Aarons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

WILSON J:

INTRODUCTION

  1. By application in a case filed 16 July 2021, the applicant sought orders under r…

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AGLC
Aarons & Aarons [2021] FamCA 530
Case
[2021] FamCA 530
Decision Date

CaseChat Overview and Summary

In this matter before Wilson J of the Family Court of Australia, Mr Aarons (the husband) sought orders enforcing a financial agreement made with Ms Aarons (the wife) on 13 October 2014. The wife subsequently commenced proceedings in the Supreme Court of Victoria, seeking restraining orders under the Corporations Act concerning 27 companies, with the husband as the first respondent. The wife also filed a response in the Family Court, seeking either the transfer of the Family Court proceeding to the Supreme Court to be heard concurrently with the Victorian proceeding, or a stay of the Family Court proceeding until the resolution of the Supreme Court matter. The husband, in turn, sought to have the Supreme Court proceeding transferred to the Family Court.

The court was required to determine several legal issues. Primarily, it needed to consider the husband's application to set aside the financial agreement, which was filed as an alternative to his initial enforcement application. Additionally, the court had to address the wife's applications for transfer or stay of proceedings, and the husband's application for transfer of the Supreme Court proceeding. The court also considered an application for expedition under rule 12.10A of the Family Law Rules.

Wilson J granted leave under rule 12.10A for the proceeding to be heard with expedition. The court directed the parties to submit minutes by a specified date to establish a timetable for the filing of affidavit evidence and submissions. A trial date was fixed for the husband's application to set aside the financial agreement, to be heard in October 2021. The costs of the application were reserved, and the court certified for counsel, including Senior Counsel.

Orders

Orders of the court

MLC 6647 of 2021

BETWEEN:

MR AARONS

Applicant

AND:

MS AARONS

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

21 JULY 2021

THE COURT ORDERS THAT:

1. Leave is granted under r 12.10A of the Family Law Rules to proceed with expedition in this proceeding.

2. I direct the parties to bring in minutes by 4:00pm on Friday 23 July 2021 giving effect to a timetable for the filing of affidavit evidence and submissions.

3. I fix 18, 19, 20, 21 and 22 October 2021 for the trial of the husband’s application to set aside the financial agreement.

4. I reserve costs of and incidental to this application.

5. I certify for counsel including Senior Counsel.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

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

For the reasons that follow –(a)leave is granted under r 12.10A of the Family Law Rules to proceed with expedition in this proceeding; (b)I direct the parties to bring in a minute by 4pm on Friday 23 July giving effect to a timetable for the filing of affidavit evidence and submissions; (c)I fix 18, 19, 20, 21 and 22 October 2021 for the trial of the husband’s application to set aside the financial agreement; (d)I reserve costs of and incidental to this application; and (e)I certify for counsel, including Senior Counsel SHORT NARRATION OF RELEVANT FACTUAL MATTERS By initiating application filed in this court on 16 June 2021, Mr Aarons (who is referred to in documentation filed in this litigation as “the husband”) sought orders enforcing a financial agreement made under s 90C of the Family Law Act on 13 October 2014 between the husband and Ms Aarons (who is referred to in documentation filed in this litigation as “the wife”). When the initiating application was filed, the allocated return date assigned for first return was 4 October 2021. In early July 2021, the wife commenced a proceeding in the Commercial Court of the Supreme Court of Victoria[1] (“the Supreme Court proceeding”) in which she sought, among other things, restraining orders under the Corporations Act. The first respondent in the Supreme Court proceeding is the husband. Twenty seven companies are also respondents. [1] Proceeding S ECI 2021 … In early July 2021 Riordan J made consent orders until late July 2021 or further order restraining the first and second defendants from, among other things, entering into any arrangement or taking any action in furtherance of an owner-operator model controlled by the first defendant and/or by any one of the second to 28th defendants for the investment and management of the business at B Street, Suburb C. Riordan J made orders requiring the parties to file affidavit evidence and otherwise adjourned the further hearing of the Supreme Court proceeding to late July 2021, a date subsequently extended to mid-August 2021, when his Honour returns from leave, so counsel informed me. In mid-July 2021 the husband filed an originating process and interlocutory process in the Supreme Court of Victoria seeking orders transferring the Supreme Court proceeding to this Court. In mid-July 2021, the wife filed a response to the husband’s initiating application in this proceeding. In it, she sought orders –(a)pursuant to s 5 of the Jurisdiction ofCourts (Cross-vesting) Act 1987 (Cth) that this proceeding be transferred to the Supreme Court of Victoria to be heard together with the Supreme Court proceeding or, alternatively;(b)an order that this proceeding be stayed until the resolution of the Supreme Court proceeding. On 16 July 2021 the husband filed three relevant documents. The first was an amended initiating application, of which paragraph two was relevant. It provided as follows –2.In the alternative to paragraph 1, Pursuant to section 90K(1)(c) of the Family Law Act (1975), the financial agreement made between the parties and dated 13 October 2014 be set aside.