Billson and Billson - [2014] FamCA 930

FAMILY COURT OF AUSTRALIA

BILLSON & BILLSON

[2014] FamCA 930

FAMILY LAW – SPOUSAL MAINTENANCE – Interim order – Whether lifestyle should be affected – Whether artificial division of expenses in financial statements should be slavishly adhered to – Orders made.
FAMILY LAW – INJUNCTIONS – Injunctions concerning access and use of income and property – Injunctions denied.

Family Law Act 1975 (Cth)

Mee & Ferguson (1986) FLC 91-716; (1986) 84 FLR 179; (1986) 10 Fam LR 971
Redman & Redman (1987) FLC 91-805; (1987) 11 Fam LR 411
Stein & Stein (2000) FLC 93-004
Strahan & Strahan (Interim Financial Orders) [2010] FamCA 423

APPLICANT:

Ms Billson

RESPONDENT:

Mr Billson

FILE NUMBER:

MLC

8915

2012

DATE DELIVERED:

31 October 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

28 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weil

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Ms Ben-Simon

SOLICITOR FOR THE RESPONDENT:

Farrell Family Lawyers

Orders

That paragraph 3 of the orders made by the Federal Circuit Court of Australia on 17 March 2014 is forthwith discharged.
That forthwith, paragraph 4 of the orders made on 17 March 2014 is discharged.
That each party provide to the other within 14 days, a list of documents that each wishes the other to provide for inspection and within a further 14 days thereafter, such documents be provided subject only to the issue of objections on the grounds of privilege.
That commencing on 28 October 2014, the husband pay to the wife by way of spousal maintenance, $4000 per week.
That the parties forthwith do all acts and things and sign all such documents that may be necessary to draw down the sum of $240,000 from the mortgage loan secured over the property at Suburb T and for those proceeds to be applied as follows:
(a)       $70,000 to the husband as a part-property settlement;
(b)       $170,000 to be paid by the wife towards all of her credit cards currently outstanding and upon such payments being made, to provide confirmation to the husband through his solicitor that such payments have been made into the credit cards;
(c)       For the purposes of (b) above $70,000 of the $170,000 referred to shall be deemed part property settlement in favour of the wife.
Upon the payment to the wife of $170,000 referred to in these orders, the husband’s obligation to pay spousal maintenance in the sum of $4000 per week is varied to $2600 as and from the next pay day after the $170,000 is paid to the wife.
To the extent that it is necessary to say so, the husband may sell the assets of Business O Limited provided that he provides:
(a)       the wife copies of all correspondence relating to proposed contractual arrangements for the sale prior to the completion of the contracts;
(b)       copies to the wife of all executed contracts;
(c)       the wife evidence of the deposit into the company’s account of the funds…

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 Billson and Billson

Details

AGLC: Billson and Billson [2014] FamCA 930
Case: [2014] FamCA 930
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the matter of *Billson and Billson*, the parties were before Cronin J of the Federal Circuit Court of Australia. The dispute concerned orders relating to property settlement, spousal maintenance, and the discharge of previous court orders.

The court was required to determine the appropriate orders regarding the discharge of existing Federal Circuit Court orders, the provision of documents between the parties, the quantum and commencement of spousal maintenance payable by the husband to the wife, the application of funds drawn from a mortgage loan for property settlement and the discharge of the wife's credit card debts, and the conditions under which the husband could sell the assets of Business O Limited. The court also considered the dismissal of applications filed by the wife and the husband.

Cronin J discharged specific paragraphs of previous orders made by the Federal Circuit Court. The court ordered the exchange of documents between the parties, subject to privilege. Commencing on 28 October 2014, the husband was ordered to pay the wife $4000 per week by way of spousal maintenance. Further orders detailed the drawing down of $240,000 from a mortgage loan, with $70,000 to be paid to the husband as part-property settlement, and $170,000 to be applied by the wife towards her outstanding credit card debts, with $70,000 of this amount also deemed part-property settlement in favour of the wife. Upon payment of the $170,000 to the wife, the husband's spousal maintenance obligation was varied to $2600 per week. The husband was permitted to sell the assets of Business O Limited, subject to providing the wife with specified documentation and access to the company's banking accounts. The applications filed by the wife and the husband were dismissed, save for any application relating to costs.

Orders

Orders of the court

That paragraph 3 of the orders made by the Federal Circuit Court of Australia on 17 March 2014 is forthwith discharged.

That forthwith, paragraph 4 of the orders made on 17 March 2014 is discharged.

That each party provide to the other within 14 days, a list of documents that each wishes the other to provide for inspection and within a further 14 days thereafter, such documents be provided subject only to the issue of objections on the grounds of privilege.

That commencing on 28 October 2014, the husband pay to the wife by way of spousal maintenance, $4000 per week.

That the parties forthwith do all acts and things and sign all such documents that may be necessary to draw down the sum of $240,000 from the mortgage loan secured over the property at Suburb T and for those proceeds to be applied as follows:

(a) $70,000 to the husband as a part-property settlement;

(b) $170,000 to be paid by the wife towards all of her credit cards currently outstanding and upon such payments being made, to provide confirmation to the husband through his solicitor that such payments have been made into the credit cards;

(c) For the purposes of (b) above $70,000 of the $170,000 referred to shall be deemed part property settlement in favour of the wife.

Upon the payment to the wife of $170,000 referred to in these orders, the husband’s obligation to pay spousal maintenance in the sum of $4000 per week is varied to $2600 as and from the next pay day after the $170,000 is paid to the wife.

To the extent that it is necessary to say so, the husband may sell the assets of Business O Limited provided that he provides:

(a) the wife copies of all correspondence relating to proposed contractual arrangements for the sale prior to the completion of the contracts;

(b) copies to the wife of all executed contracts;

(c) the wife evidence of the deposit into the company’s account of the funds so received from the settlement of the sale; and

(d) Copies of any demands for payment in respect of liabilities of the company; and

(e) Open access to the wife (if necessary electronically) so that she may see movements of the company’s banking accounts.

Save as to any application in relation to costs, the application of the wife filed 9 September 2014 by the wife and the amended response thereto filed by the husband on 21 October 2014 are dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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