FAMILY COURT OF AUSTRALIA
| ANISON & ANISON AND ANOR | [2015] FamCA 973 |
| FAMILY LAW – PRACTICE & PROCEDURE – application to strike out – where the wife has joined a third party to property settlement proceedings – where the third party is the corporate trustee of a trust in which the husband is a unitholder – where the wife asserts that property of the trust is property of the parties – where the trust was established before cohabitation – where the third party has applied to be disjoined and for the relief sought against it to be struck out – where there is no reasonable likelihood of success. FAMILY LAW – PROPERTY – INTERIM – SPOUSE MAINTENANCE - interim orders made. |
| Family Law Act1975 (Cth) ss 72, 74, 85A, 106B Family Law Rules 2004 r 10.12 |
| Abdullah and Abdullah (1981) FLC 91-003 Beck and Beck (2004) FLC 93-181 Biltoft & Biltoft (1995) FLC 92-614 Bourke & Bourke and Anor (2010) 243 FLR 380 Custodio & Pinto & Ors (2006) FLC 93-279 Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Equuscorp Pty Ltd and Another v Glengallan Investments Pty Ltd (2004) 218 CLR 471 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Friar & Friar [2011] FamCAFC 71. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541; Pelerman v Pelerman (2000) FLC 93-037 Prince & Prince; General Credits Australia Ltd (Intervenor) (1984) FLC 91-501 Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516 Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 82 ALR 530 |
| APPLICANT: | Ms Anison |
| FIRST RESPONDENT: | Mr Anison |
| SECOND RESPONDENT: | B Pty Ltd as Trustee for the C Trust |
| FILE NUMBER: | BRC | 1827 | of | 2013 |
| DATE DELIVERED: | 6 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 28 April 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page QC |
| SOLICITOR FOR THE APPLICANT: | Wiltshire Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Hackett |
| SOLICITOR FOR THE FIRST RESPONDENT: | Evans & Company |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Martin QC |
| SOLICITOR FOR THE SECOND RESPONDENT: | Hirst & Co |
Orders
IT IS ORDERED THAT
In so far as they refer to B Pty Ltd as Trustee for the C Trust and the Trust, paragraphs 1, 2 and 2(a) of the Amended Initiating Application filed 21 February 2014 are struck out.
The Second Respondent is removed as a party to…
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- Anison and Anison & Anor [2015] FamCA 973
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- [2015] FamCA 973
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CaseChat Overview and Summary
The primary legal issue before the court was whether there was a reasonable likelihood of success in the wife's claim that the trust property was property of the parties to the marriage. This involved determining whether the trust, established prior to the commencement of cohabitation, could be considered part of the matrimonial asset pool for the purposes of property settlement.
Hogan J reasoned that the wife's assertion that the trust property was property of the parties lacked a reasonable likelihood of success. The court found that the trust was established before the parties commenced cohabitation, and there was no evidence to suggest that the trust was a sham or that its assets should be treated as the husband's individual property. Consequently, the court ordered that paragraphs 1, 2, and 2(a) of the wife's amended initiating application, which referred to B Pty Ltd as Trustee for the C Trust and the Trust, be struck out. The Second Respondent, B Pty Ltd, was removed as a party to the proceedings.
In addition to striking out the claims against the third party, the court made interim orders for spousal maintenance. The husband was ordered to pay the wife $500.00 per week by way of spousal maintenance, with the first payment due on 9 November 2015. Furthermore, the husband was ordered to pay $20,000.00 to the wife's solicitors' trust account by 4 December 2015, to be used solely for the wife's legal costs for the forthcoming trial, with the ultimate categorisation of these funds to be determined at trial. The remaining applications were dismissed, and directions were given for any applications for costs. The wife was also granted liberty to seek capitalised spousal maintenance at the final hearing.
Orders
Orders of the court
IT IS ORDERED THAT
1.
In so far as they refer to B Pty Ltd as Trustee for the C Trust and the Trust, paragraphs 1, 2 and 2(a) of the Amended Initiating Application filed 21 February 2014 are struck out.
2.
The Second Respondent is removed as a party to the proceedings.
3.
The Husband pay to the Wife, by way of spousal maintenance, the sum of $500.00 per week with the first such payment to be made on Monday, 9 November 2015 and, thereafter, on each Monday by deposit into a bank account nominated by the Wife.
4.
By 4.00 pm on 4 December 2015 the Husband pay or cause to be paid to the trust account of the solicitors for the Wife the sum of $20,000.00 with those funds to be used solely for the purpose of meeting the Wife’s legal costs referable to her legal representation at the forthcoming trial of the proceedings and these funds are to be accounted for on that basis by her, with the categorisation of them whether as costs, partial property settlement or otherwise to be reserved to and determined at the trial of the proceedings.
5.
Save as is ordered above, and in respect of any application for costs, the Application in a Case filed 4 December 2013 and the Application in a Case filed 10 February 2014 are otherwise dismissed.
6.
Any application for costs by any party be made and supported by written submissions forwarded by email to my associate and to the other parties within 28 days of the date of this Order.
7.
Any reply to any such submissions, restricted to issues of law and errors of fact, be filed within a further seven (7) days thereafter.
8.
If neither party or B Pty Ltd as Trustee for the C Trust files any such application and submissions within the time frame specified, or agreement is reached in this respect, then the costs of and incidental to the hearing of the application shall be considered at the conclusion of the trial between the Husband and the Wife.
NOTATION
9.
The Wife is at liberty to seek at the final hearing that an order be made that she be paid an amount by way of capitalised periodic spousal maintenance in the sum of $500.00 per week for the period from 28 April 2014 to 6 November 2015 and to seek that such amount be paid to her at the time any orders are made in relation to the finalisation of the s 79 proceedings between the Husband and the Wife.
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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