AITKEN & AITKEN - [2019] FamCA 1010

FAMILY COURT OF AUSTRALIA

AITKEN & AITKEN

[2019] FamCA 1010

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – Where the wife seeks to include an affidavit filed after judgment was reserved – Where the evidence is not so material that it is required by the interests of justice – Where the evidence is unlikely to affect the result of the case – Application dismissed

FAMILY LAW – INJUNCTION – Exclusion from matrimonial home – Where each of the parties seeks an order for exclusive occupation of the former matrimonial home – Where the wife is the current resident of the former matrimonial home – Where the parties are engaged in running a business – Where the former matrimonial home was previously used for business purposes – Where the husband contends that exclusive occupation by him is required to maintain that purpose – Where it is in both parties’ interests that the business continue to trade profitably – Where the parties are unable to co-operate or make joint use of the property – Where it is not just or convenient to exclude the wife from the home – Order made for the wife to have exclusive occupation – Order made for the husband to be restrained from attending the property unless by agreement in writing

FAMILY LAW – INJUNCTION – Where the wife seeks to be restored to a position where she is involved in the day to day running of the parties’ business – Where the husband seeks that the wife be removed as a director and he have sole responsibility for the running of the parties’ business – Where each of the parties alleges that the other has caused financial harm to the business – Where the wife alleges that the husband is acting inconsistently with his obligations as a director – Where it may be necessary for an administrator to be appointed – Where neither party has sought such an order as yet – matter adjourned to allow the wife to elect whether this Court is the appropriate forum to seek an order for an appointment of an administrator

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks an order for spousal maintenance – Where the wife has access to a substantial funds – Where the wife cannot establish that she cannot adequately support herself – Where the source of the proposed spousal maintenance is jointly owned by the wife – Application dismissed.

Family Law Act 1975 (Cth) ss 72, 74, 75, 114

In the Marriage of Waugh (2000) FLC 93-052

Mullen& De Bry (2006) FLC 93-293
Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365

APPLICANT:

Ms Aitken

RESPONDENT:

Mr Aitken

FILE NUMBER:

SYC

5021

2019

DATE DELIVERED:

23 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

15 November 2019 and 16 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O’Ryan QC and Mr Ford

SOLICITOR FOR THE APPLICANT:

Nolan Lawyers

COUNSEL FOR THE RESPONDENT:

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.

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Details

AGLC: AITKEN & AITKEN [2019] FamCA 1010
Case: [2019] FamCA 1010
Decision Date: 23 December 2019

CaseChat Overview and Summary

In *Aitken & Aitken*, heard by Loughnan J, the wife sought to re-open proceedings by filing an affidavit after judgment had been reserved, arguing its materiality to the case. The husband sought exclusive occupation of the former matrimonial home, contending it was necessary for the profitable continuation of their jointly run business, which was previously conducted from the home. The wife also sought restoration to the day-to-day running of the business, while the husband sought her removal as a director. Finally, the wife sought spousal maintenance.

The court was required to determine whether the wife's application to re-open should be granted, considering the materiality and likely impact of the new evidence. It also had to decide on the competing claims for exclusive occupation of the former matrimonial home, balancing the parties' interests in the business and their inability to co-operate. Furthermore, the court needed to address the dispute over the management of the family companies and the wife's claim for spousal maintenance.

Regarding the application to re-open, the court found the evidence was not so material as to be required in the interests of justice and unlikely to affect the result, leading to its dismissal. On the issue of exclusive occupation, the court determined that it was not just or convenient to exclude the wife, who was the current resident, and ordered that she have exclusive occupation of the former matrimonial home, restraining the husband from attending the property without written agreement. The court noted that the competing applications concerning the family companies had been addressed by prior orders. The wife's claim for spousal maintenance was dismissed as she had access to substantial funds and could not establish an inability to support herself, particularly as the source of proposed maintenance was jointly owned by her. The remaining interim orders sought by both parties were also dismissed.

Orders

Orders of the court

The wife’s application to re-open contained in the Application in a Case filed 27 November 2019 is dismissed.

Until further order of the Court the wife shall have the right to occupy the former matrimonial home at the property at B Street, Suburb C in the State of New South Wales and the husband is restrained from attending at that property unless the parties otherwise agree in writing.

The Court Noted that the competing applications about the management and administration of the family companies including D Pty Ltd, the case management of those issues were addressed by the orders and notations made on 16 December 2019.

Otherwise as to the interim orders sought by the wife in her Initiating Application filed on 1 August 2019 and by the husband in his Amended Response to an Application in a Case filed on 13 November 2019, those applications are 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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