Ackerley and Ackerley - [2019] FamCA 500

FAMILY COURT OF AUSTRALIA

ACKERLEY & ACKERLEY

[2019] FamCA 500

FAMILY LAW – PROPERTY – Interim distribution – Where the wife seeks interim settlement of property – Where the husband opposes – Where the husband asserts that his income is outstripped by his expenditure – Whether to make orders for interim settlement of property – Principles in relation to interim settlement – Orders

Family Law Act 1975 (Cth) ss 79, 80(1)(h)

Bevan & Bevan (1995) FLC 92-600
Brown & Brown (2007) FLC 93-316
Hall & Hall (2016) 257 CLR 490
Klearchos & Klearchos and Ors [2015] FamCAFC 217
Maroney & Maroney [2009] FamCAFC 45
Medlow & Medlow (2016) FLC 93-692
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

APPLICANT:

Ms Ackerley

RESPONDENT:

Mr Ackerley

INDEPENDENT CHILDREN’S LAWYER:

Bowral Legal

FILE NUMBER:

SYC

7181

2018

DATE DELIVERED:

30 July 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Berman J

HEARING DATE:

19 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Litigant In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Bowral Legal

UPON NOTING that the husband’s ongoing obligation to pay periodic spousal maintenance to the wife of $1,200 per week

Orders

On or before 4.00 pm on 31 August 2019 the husband do all things necessary to cause the following:-
(a)In his capacity as director of D Holdings Pty Ltd the financial reports and company tax returns to be lodged with the Australian Taxation Office (“ATO”) for the company from establishment to the present date (but not as to the 2019 returns wherein time is extended for their lodgement to 1 December 2019);
(b)In his capacity as director of D Pastoral Company Pty Ltd the financial reports and company tax returns to be lodged with the ATO for the company from establishment to the present date (but not as to the 2019 returns wherein time is extended for their lodgement to 1 December 2019);
(c)If required, in his capacity as director of D Holdings Pty Ltd ATF the Ackerley Family Trust, the financial reports and Trust tax returns to be lodged with the ATO for the Trust from establishment to the present date (but not as to the 2019 returns wherein time is extended for their lodgement to 1 December 2019).
That in the event that the tax returns are not lodged by 31 August 2019 in circumstances where the reason for delay is as a result of the unavailability of the husband’s accountant B and Associates, THEN the wife will forward to the husband the names of three suitably qualified accountants who have indicated a preparedness to receive instructions to complete the preparation of tax returns and financial reports for the various entities and upon receiving the names of the proposed accountants, the husband at his election will nominate one accountant to undertake the work, and the wife and husband will jointly instruct the…

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 Ackerley and Ackerley

Details

AGLC: Ackerley and Ackerley [2019] FamCA 500
Case: [2019] FamCA 500
Decision Date: 30 July 2019

CaseChat Overview and Summary

In the matter of *Ackerley and Ackerley*, Berman J considered orders relating to the financial affairs of the parties and their associated entities. The dispute involved the husband's obligations concerning the lodgement of financial reports and tax returns for various companies and a trust, as well as interim property settlement and disclosure of financial documents.

The court was required to determine the terms of orders concerning the timely lodgement of tax returns and financial reports for D Holdings Pty Ltd, D Pastoral Company Pty Ltd, and the Ackerley Family Trust. Further issues included the husband's authorisation for his accountant to communicate with the wife, the payment of interim property settlement, and the husband's restraint from dealing with certain assets. The court also needed to address the provision of specific financial disclosure by the husband and the consequences of default in payment of the interim property settlement.

Berman J ordered the husband to take all necessary steps to lodge the outstanding financial reports and tax returns for the specified entities by 31 August 2019, with an extension for the 2019 returns to 1 December 2019. Provisions were made for the wife to nominate accountants if the delay was due to the unavailability of the husband's accountant, with the husband to elect and jointly instruct a nominated accountant at his or the entity's cost. The husband was also ordered to authorise his accountant to communicate with the wife and provide information. An interim property settlement of $100,000 was ordered to be paid by the husband to the wife within thirty days, with $50,000 to be paid directly to the wife's solicitors. The husband was restrained from selling, transferring, or otherwise alienating his interest in specified properties and entities, except in the ordinary course of business. The husband was also ordered to provide specific financial disclosure within twenty-one days. In the event of default in the interim property settlement payment, the property at F Street, Town G was to be placed on the market for sale, with the net proceeds to be disbursed first to the wife up to $100,000 plus default interest, and the balance to be held pending further order. The husband's Response filed on 12 June 2019 was dismissed.

Orders

Orders of the court

On or before 4.00 pm on 31 August 2019 the husband do all things necessary to cause the following:-

(a) In his capacity as director of D Holdings Pty Ltd the financial reports and company tax returns to be lodged with the Australian Taxation Office (“ATO”) for the company from establishment to the present date (but not as to the 2019 returns wherein time is extended for their lodgement to 1 December 2019);

(b) In his capacity as director of D Pastoral Company Pty Ltd the financial reports and company tax returns to be lodged with the ATO for the company from establishment to the present date (but not as to the 2019 returns wherein time is extended for their lodgement to 1 December 2019);

(c) If required, in his capacity as director of D Holdings Pty Ltd ATF the Ackerley Family Trust, the financial reports and Trust tax returns to be lodged with the ATO for the Trust from establishment to the present date (but not as to the 2019 returns wherein time is extended for their lodgement to 1 December 2019).

That in the event that the tax returns are not lodged by 31 August 2019 in circumstances where the reason for delay is as a result of the unavailability of the husband’s accountant B and Associates, THEN the wife will forward to the husband the names of three suitably qualified accountants who have indicated a preparedness to receive instructions to complete the preparation of tax returns and financial reports for the various entities and upon receiving the names of the proposed accountants, the husband at his election will nominate one accountant to undertake the work, and the wife and husband will jointly instruct the nominated accountant to complete the outstanding tax returns and financial reports (at the cost of the husband and/or the relevant entity).

That the husband will forthwith authorise B and Associates to communicate with the wife and to provide information and answer all reasonable questions as to the financial affairs of each of the parties and any related entity.

That within thirty (30) days of the date of this order the husband will pay to the wife by way of interim property settlement the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) NOTING that FIFTY THOUSAND DOLLARS ($50,000) is to be paid by the wife to Holmes Donnelly & Co Solicitors.

That pending further order or the written agreement between the parties, the husband is restrained and an injunction granted restraining him from:-

(a) selling, transferring, assigning, further encumbering, mortgaging or in any way alienating his interest in:-

(i) F Street, Town G, New South Wales;

(ii) E Pty Ltd;

(iii) D Holdings Pty Ltd;

(iv) D Pastoral Company Pty Ltd;

(v) Ackerley Self-Managed Superannuation Fund;

other than in the ordinary course of business.

That within twenty one (21) days of the date of these orders the husband provide disclosure of the following documents:-

(a) Bank statements in respect of C Bank home loan account #...01 for the period 22 February 2019 to date;

(b) Bank statements in respect of C Bank home loan account #...02 for the period 22 December 2018 to date;

(d) If not already provided:-

(i) the contract for sale purported to be executed on 17 May 2019 as referred to in the “Mortgage-Linked Loan Agreement” being Exhibit “A1” of the tender bundle produced by the husband on 13 June 2019 (Exhibit “2”);

(ii) the disposition of the motor vehicle 1, in the name of or held previously by D Pastoral Company Pty Ltd;

(iii) the acquisition of the motor vehicle 2.

That in default of the payment to the wife of the lump sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) by the time as ordered in paragraph 4 herein, and if the default shall continue for a period of seven (7) days THEN and in those circumstances the parties will cause the property at F Street, Town G to be placed on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree and following the payment of the usual costs and disbursements associated with the marketing and sale of the said property, the net proceeds of sale will be disbursed as to the first ONE HUNDRED THOUSAND DOLLARS ($100,000) to the wife together with default interest as determined by reference to the Family Law Rules 2004 (Cth) and the balance to be held by the conveyancer or if agreed to be invested in an account in the joint names of the parties pending further order of the Court or the written agreement of the parties.

The husband’s Response filed 12 June 2019 is 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

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