Beach and Beach (No. 3) - [2007] FamCA 1486

FAMILY COURT OF AUSTRALIA

BEACH & BEACH (NO. 3)

[2007] FamCA 1486

FAMILY LAW – PROPERTY – Case management

Family Law Act 1975 (Cth)

Applicant:

Ms Beach

Respondent:

Mr Beach

File Number:

MLF

2761

2003

Date Delivered:

19 December 2007

Place Delivered:

Melbourne

Place Heard:

Melbourne

Judgment of:

Carter J

Hearing Date:

11 December 2007

Representation

Counsel for the Applicant:

Mr Mawson

Solicitor for the Applicant:

Gillian Coote Family Law

Solicitor for the Respondent:

Ms Twigg

Solicitor for the Respondent:

Wilmoth Field Warne

Orders

That by 4:00pm on Thursday, 13 December 2007:
(a)the husband provide to the wife answers to specific questions dated 28 September 2007; and
(b)the husband file and serve an up-to-date sworn Statement of Assets and Liabilities relevant to these proceedings.
That in the event that the husband does not comply with par (1)(a) and/or (1)(b) hereof:
(a) the husband’s response filed 27 April 2007 be dismissed; and
(b)the wife have leave to proceed on an undefended basis save that with her consent, given through counsel this day, the husband shall be permitted to cross-examine any witnesses called by the wife and to make submissions.
That until 4:00pm on Monday, 17 December 2007 or further order the husband be restrained from disbursing funds from the sale of livestock to be made to him or at his direction, by P Livestock and Property of W and/or C Rural of Y save for arrears of mortgage payments owing to Suncorp Metway Ltd.
That forthwith upon receipt of any of the funds referred to in par (3) hereof the husband pay the aforesaid arrears of mortgage payments to Suncorp Metway Ltd.
That all questions of costs be reserved to the trial judge.
That my Reasons for the above orders be delivered as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Beach & Beach is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2761 of 2003

MS BEACH

Applicant

and

MR BEACH

Respondent

REASONS FOR JUDGMENT

Proceedings are pending in this Court between Ms Beach (for convenience referred to as “the wife”) and Mr Beach (for convenience referred to as “the husband”). The proceedings are for alteration of property interests and they have been fixed for hearing to commence on 17 December 2007.
The proceedings have come before me on a number of occasions and most recently on 2 November 2007.
On that occasion the husband and the wife both had legal representation and orders were made by consent which amongst other things, effectively extended time for the husband to provide answers to specific questions which the wife had been granted leave to serve upon the husband on an earlier date. Originally the answers were to have been answered by no later than 30 October 2007, but this was not done. Pursuant to the orders of 2 November 2007, the husband was required to provide the answers by 23 November 2007.

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 Beach and Beach (No. 3)

Details

AGLC: Beach and Beach (No. 3) [2007] FamCA 1486
Case: [2007] FamCA 1486
Decision Date: 19 December 2007

CaseChat Overview and Summary

This matter came before Carter J concerning a dispute between a husband and wife. The wife sought orders for the husband to provide answers to specific questions and an up-to-date sworn Statement of Assets and Liabilities. The wife also sought to restrain the husband from disbursing funds from the sale of livestock, with an exception for arrears of mortgage payments.

The court was required to determine whether to order the husband to provide the requested financial disclosure and to restrain the disbursement of livestock sale proceeds. Additionally, the court needed to consider the consequences of the husband's non-compliance with any disclosure orders.

Carter J ordered that the husband provide answers to specific questions by 4:00 pm on 13 December 2007 and file and serve an up-to-date sworn Statement of Assets and Liabilities by the same time. In the event of non-compliance, the husband's response filed on 27 April 2007 would be dismissed, and the wife would have leave to proceed on an undefended basis, subject to the husband's permitted cross-examination of witnesses and submissions. The husband was also restrained from disbursing funds from the sale of livestock until 4:00 pm on 17 December 2007, except for arrears of mortgage payments to Suncorp Metway Ltd, which he was ordered to pay forthwith upon receipt of those funds. All questions of costs were reserved to the trial judge.

Orders

Orders of the court

That by 4:00pm on Thursday, 13 December 2007:

(a) the husband provide to the wife answers to specific questions dated 28 September 2007; and

(b) the husband file and serve an up-to-date sworn Statement of Assets and Liabilities relevant to these proceedings.

That in the event that the husband does not comply with par (1)(a) and/or (1)(b) hereof:

(a) the husband’s response filed 27 April 2007 be dismissed; and

(b) the wife have leave to proceed on an undefended basis save that with her consent, given through counsel this day, the husband shall be permitted to cross-examine any witnesses called by the wife and to make submissions.

That until 4:00pm on Monday, 17 December 2007 or further order the husband be restrained from disbursing funds from the sale of livestock to be made to him or at his direction, by P Livestock and Property of W and/or C Rural of Y save for arrears of mortgage payments owing to Suncorp Metway Ltd.

That forthwith upon receipt of any of the funds referred to in par (3) hereof the husband pay the aforesaid arrears of mortgage payments to Suncorp Metway Ltd.

That all questions of costs be reserved to the trial judge.

That my Reasons for the above orders be delivered as soon as practicable.

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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