Anison and Anison & Anor

Case [2015] FamCA 973


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
Af Petersens and Af Petersens (1981) FLC 91-095
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
B Pty Ltd and Ors & K and Anor K (2008) FLC 93-380

Beck and Beck (2004) FLC 93-181

Biltoft & Biltoft (1995) FLC 92-614

Bourke & Bourke and Anor (2010) 243 FLR 380
Brown & Brown (2007) FLC 93-316

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;
Goodwin & Goodwin Alpe (1991) FLC 92-192
In the Marriage of Gould (1993) FLC 92-434
In the Marriage of Pflugradt (1981) FLC 91-052
Kennon & Spry (2008) 238 CLR 366

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
Spellson & Spellson (1989) FLC 92-046
Strahan & Strahan(interim property orders) (2011) FLC 93-466

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

  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…

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Anison and Anison & Anor [2015] FamCA 973
Case
[2015] FamCA 973
Decision Date

CaseChat Overview and Summary

In *Anison and Anison & Anor*, Hogan J of the Family Court of Australia considered an application by a third party, B Pty Ltd as Trustee for the C Trust, to be disjoined from property settlement proceedings and for relief sought against it to be struck out. The wife had joined the corporate trustee, of which the husband was a unitholder, to the proceedings, asserting that trust property constituted property of the parties, despite the trust having been established before cohabitation.

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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