Baillieu & Baillieu & Ors - [2019] FamCA 683

FAMILY COURT OF AUSTRALIA

BAILLIEU & BAILLIEU & ORS

[2019] FamCA 683

FAMILY LAW – PROPERTY – INTERLOCUTORY INJUNCTIONS – Where the husband seeks an interlocutory injunction to prevent wife from disposing of proceeds of sale from the former matrimonial home – Application by husband seeking a partial property settlement pending resolution of the property proceedings - Orders that wife’s conveyancing solicitors retain a fixed sum of money from the proceeds of sale of the former matrimonial home

FAMILY LAW – PROPERTY – Orders by consent that a mediator be appointed – Orders by consent that the parties equally share the mediation costs – Orders by consent that parties attend mediation and make genuine attempt to resolve matters in dispute – Orders by consent for the exchange of documentation prior to mediation

Family Law Act 1975 (Cth) s 114

Tsiang & Wu and Ors [2019] FamCAFC 128

APPLICANT:

Mr A Baillieu

1st RESPONDENT:

Ms Baillieu

2nd RESPONDENT:

Mr B Baillieu

3rd RESPONDENT:

E Pty Ltd (in liquidation)

4th RESPONDENT:

H Pty Ltd

5th RESPONDENT:

J Pty Ltd

6th RESPONDENT:

Ms J

FILE NUMBER:

SYC

1492

2018

DATE DELIVERED:

24 September 2019

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

21 March 2019

REPRESENTATION:-

COUNSEL FOR THE APPLICANT:

Ms O’Reilly

SOLICITOR FOR THE APPLICANT:

McCabe Partners

COUNSEL FOR THE 1ST RESPONDENT:

Ms Deirmendjian

SOLICITOR FOR THE 1ST RESPONDENT:

E H Tebbutt & Sons

SOLICITOR FOR THE 2ND RESPONDENT:

No Appearance

COUNSEL FOR THE 3RD RESPONDENT:

Ms Hoskinson

SOLICITOR FOR THE 3RD RESPONDENT:

Daniela Fazio Lawyers Pty Ltd

SOLICITOR FOR THE 4TH RESPONDENT:

No Appearance

SOLICITOR FOR THE 5TH RESPONDENT:

No Appearance

SOLICITOR FOR THE 6TH RESPONDENT:

No Appearance

Orders

That the matter be stood over generally, including the applications in a case, for determination before the Honourable Justice Benjamin the time to be determined by the Honourable Justice Benjamin and the parties may have the matter listed before the Honourable Justice Benjamin on seven days’ notice to the other parties and to the Court.
That leave be given to the parties to attend by telephone by dialling … then enter passcode …#.
That this leave will continue until one month after completion of consent mediation.
That the wife shall do all acts and sign all documents to retain from the proceeds of sale of the Suburb D property in her conveyancing solicitors’ trust account or interest bearing account in the name of that solicitor as trustee for the wife the sum of $500,000 which will include the $138,000 previously agreed to be restrained.
That that injunction will continue until further order and the hearing of the outstanding applications in a case and/or the determination of the continuing Applications in a Case.
That should the parties require reasons in that respect they will notice to the Associate to the Honourable Justice Benjamin within 30 days from today’s date.

IT IS DIRECTED

That a Transcript of Proceedings of the exchanges today to be taken out.

IT IS…

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: Baillieu & Baillieu & Ors [2019] FamCA 683
Case: [2019] FamCA 683
Decision Date: 24 September 2019

CaseChat Overview and Summary

In the Family Court of Australia, Benjamin J considered an application by a husband seeking an interlocutory injunction to prevent his wife from disposing of the proceeds of sale from the former matrimonial home. The husband also sought a partial property settlement pending the final resolution of property proceedings. The court was asked to make orders regarding the retention of a fixed sum of money from the sale proceeds by the wife's conveyancing solicitors.

The legal issues before the court included whether to grant the interlocutory injunction to restrain the wife from dealing with the proceeds of sale, and the terms upon which such an injunction should be granted. Additionally, the court was required to consider and formalise consent orders relating to the appointment of a mediator, the sharing of mediation costs, the requirement for parties to attend mediation and make a genuine attempt to resolve disputes, and the exchange of documentation prior to mediation.

Benjamin J made orders by consent, reflecting an agreement between the parties to engage in mediation. The court ordered that the wife's conveyancing solicitors retain $500,000 from the proceeds of sale of the Suburb D property, which sum included an amount previously agreed to be restrained. This injunction was to continue until further order or the determination of outstanding applications. The court also formally recorded consent orders for the appointment of Mr Ian Coleman SC as mediator, with the parties to equally share mediation costs. The parties were directed to attend mediation in person and make a genuine effort to resolve all disputed matters, with detailed requirements for the exchange of financial information and case outlines to the mediator prior to the mediation. Further directions were given regarding the notification of resolved and outstanding issues, expected trial duration, and costs, should the mediation not result in a full settlement.

Orders

Orders of the court

That the matter be stood over generally, including the applications in a case, for determination before the Honourable Justice Benjamin the time to be determined by the Honourable Justice Benjamin and the parties may have the matter listed before the Honourable Justice Benjamin on seven days’ notice to the other parties and to the Court.

That leave be given to the parties to attend by telephone by dialling … then enter passcode …#.

That this leave will continue until one month after completion of consent mediation.

That the wife shall do all acts and sign all documents to retain from the proceeds of sale of the Suburb D property in her conveyancing solicitors’ trust account or interest bearing account in the name of that solicitor as trustee for the wife the sum of $500,000 which will include the $138,000 previously agreed to be restrained.

That that injunction will continue until further order and the hearing of the outstanding applications in a case and/or the determination of the continuing Applications in a Case.

That should the parties require reasons in that respect they will notice to the Associate to the Honourable Justice Benjamin within 30 days from today’s date.

IT IS DIRECTED

That a Transcript of Proceedings of the exchanges today to be taken out.

IT IS FURTHER ORDERED BY CONSENT

Mr Ian Coleman SC be appointed mediator for that purpose.

The parties are to equally share the costs of the mediation, including the costs of the mediator or mediation service.

10.

Each party must attend the mediation in person and must make a genuine effort to resolve all of the matters in dispute.

11.

At least 10 days prior to the mediation, the parties exchange a Balance Sheet, identifying agreed and disputed assets.

12.

The parties make arrangements for their legal representatives instructed and/or briefed to appear at the mediation and to confer, at least three (3) days prior to the mediation.

13.

At least seven (7) days prior to the mediation, the parties’ solicitors send, to the nominated mediator, copies of:-

a. all relevant Applications, Responses, Affidavits and Financial Statements filed in the proceedings;

b. the Balance Sheet of agreed and disputed assets and liabilities;

c. any relevant documents exchanged between the parties;

d. the orders sought by them to give effect to their settlement proposal;

e. an outline of case document;

f. valuations of any asset or financial resource, the value of which is in dispute;

g. valuations or market appraisals with respect to any parcel of real estate in which any party has an interest;

h. market appraisals or internet valuations for any motor vehicle, the value of which is not agreed;

i. valuations of any superannuation interests;

j. written confirmation that the superannuation trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness; and

k. any intervention or restraining orders currently in place.

14.

If the proceedings are not resolved at mediation, within seven (7) days of the date of the mediation, the parties are to serve upon one another written notices identifying:-

a. the issue/s that the party considers were resolved at the mediation;

b. those issues that remain in dispute;

c. the expected duration of trial; and

d. the expected costs of trial.

15.

The parties must not unreasonably include in their statements of the issues, as referred to in the above order, that the party considers to remain in dispute an issue that is unmeritorious or has no reasonable prospects of success.

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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