Billson and Billson - [2014] FCCA 1233

FEDERAL CIRCUIT COURT OF AUSTRALIA

BILLSON & BILLSON

[2014] FCCA 1233

Catchwords:
FAMILY LAW – Interim spousal maintenance – capital injection into family business.

Legislation:
Family Law Act 1975

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Wenz & Archer [2008] FMCAfam 1119

Applicant:

MR BILLSON

Respondent:

MS BILLSON

File Number:

MLC 8915 of 2012

Judgment of:

Judge Riethmuller

Hearing date:

17 March 2014

Date of Last Submission:

17 March 2014

Delivered at:

Melbourne

Delivered on:

17 March 2014

REPRESENTATION

Counsel for the Applicant:

Ms Farrell

Solicitors for the Applicant:

Nevett Ford

Counsel for the Respondent:

Ms Humphreys

Solicitors for the Respondent:

Kennedy Partners

ORDERS

Pending further order the Husband have sole conduct of (business omitted) Pty Ltd and (business omitted) Pty Ltd and that the Wife take all reasonable steps to resign as Director and appoint the Husband in her place AND THAT:
(a)The Husband provide a management and financial report with respect to (business omitted) and (business omitted) to the Wife on the seventh day of each month regarding the previous month’s trading; and
(b)The Husband continue to use the Wife as a consultant as far as is reasonably practicable.
The Husband and Wife do all things and sign all documents as may be necessary to draw down on the loan secured over Property T and Property M in the sum of $248,500 AND pay the monies as follows:
(a)$50,000 to (business omitted);
(b)$5,500 to (omitted) Real Estate for the advertising costs for the sale of Property M;
(c)$33,000 to the Wife to be categorised as spousal maintenance;
(d)$80,000 to the solicitors on behalf of the Wife, save that $25,000 of that sum be held in the Wife’s solicitors trust account to be applied to payment of fees for the mediator and/or valuers and/or forensic accountants; and
(e)$80,000 to the solicitors on behalf of the Husband, save that $25,000 of that sum be held in the Husband’s solicitors trust account to be applied to payment of fees for the mediator and/or valuers and/or forensic accountants.
Until further order, the Husband ensure that the Wife be paid 1000 British pounds per week as consultancy fees from (business omitted).
Until further order, the Husband be restrained from dealing with:
(a)any dividend income received by (business omitted) Pty Ltd (in its own right or as trustee), save for payment of operating expenses, unless agreed in writing between the parties; and
(b)any bonuses received by the Husband, unless agreed in writing between the parties.
The Wife do all things and sign all documents necessary to remove herself as a signatory to all (business omitted) and (business omitted) bank accounts and to appoint the Husband as a signatory to the said bank accounts AND if she fails to do so, upon being satisfied of such failure or neglect or default by the Wife by way of affidavit evidence only, a Registrar or Deputy Registrar of the Federal Circuit Court of Australia is appointed pursuant to s.106A of the Family Law Act 1975

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] FCCA 1233
Case: [2014] FCCA 1233
Decision Date: 17 March 2014

CaseChat Overview and Summary

In *Billson and Billson*, heard by Judge Riethmuller, the dispute concerned interim financial arrangements and property division between the parties. The orders indicate a complex financial situation involving businesses and properties, necessitating the court's intervention to establish a framework for their management and division pending final resolution.

The court was required to determine how the parties' business interests, specifically two companies, should be managed on an interim basis, including the roles of each party as director and signatory. Further issues included the immediate financial needs of the parties, the allocation of funds from a loan secured against properties, and the provision of spousal maintenance. The court also had to consider the restraint of dealings with certain assets, including dividend income and bonuses, to preserve them for potential division.

Judge Riethmuller reasoned that immediate steps were necessary to ensure the orderly conduct of the businesses and to meet the parties' financial obligations and needs. The court ordered that the husband have sole conduct of the two companies, with the wife to resign as director and appoint the husband in her place, subject to the husband providing monthly financial reports and continuing to use the wife as a consultant. The court also directed the parties to draw down on a loan to pay specific amounts, including a sum categorised as spousal maintenance for the wife and funds for legal and expert fees. Restraints were placed on the husband's dealings with dividend income and bonuses, and the wife was ordered to remove herself as a signatory to business bank accounts, with provision for a Registrar to execute documents if she failed to comply. Liberty to apply was granted to the parties to address further matters after discovery and mediation.

Orders

Orders of the court

Pending further order the Husband have sole conduct of (business omitted) Pty Ltd and (business omitted) Pty Ltd and that the Wife take all reasonable steps to resign as Director and appoint the Husband in her place AND THAT:

(a) The Husband provide a management and financial report with respect to (business omitted) and (business omitted) to the Wife on the seventh day of each month regarding the previous month’s trading; and

(b) The Husband continue to use the Wife as a consultant as far as is reasonably practicable.

The Husband and Wife do all things and sign all documents as may be necessary to draw down on the loan secured over Property T and Property M in the sum of $248,500 AND pay the monies as follows:

(a) $50,000 to (business omitted);

(b) $5,500 to (omitted) Real Estate for the advertising costs for the sale of Property M;

(d) $80,000 to the solicitors on behalf of the Wife, save that $25,000 of that sum be held in the Wife’s solicitors trust account to be applied to payment of fees for the mediator and/or valuers and/or forensic accountants; and

(e) $80,000 to the solicitors on behalf of the Husband, save that $25,000 of that sum be held in the Husband’s solicitors trust account to be applied to payment of fees for the mediator and/or valuers and/or forensic accountants.

Until further order, the Husband ensure that the Wife be paid 1000 British pounds per week as consultancy fees from (business omitted).

Until further order, the Husband be restrained from dealing with:

(a) any dividend income received by (business omitted) Pty Ltd (in its own right or as trustee), save for payment of operating expenses, unless agreed in writing between the parties; and

(b) any bonuses received by the Husband, unless agreed in writing between the parties.

The Wife do all things and sign all documents necessary to remove herself as a signatory to all (business omitted) and (business omitted) bank accounts and to appoint the Husband as a signatory to the said bank accounts AND if she fails to do so, upon being satisfied of such failure or neglect or default by the Wife by way of affidavit evidence only, a Registrar or Deputy Registrar of the Federal Circuit Court of Australia is appointed pursuant to s.106A of the Family Law Act 1975 to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders and the party in default pay to the other party to this Application that party’s costs and disbursements on an indemnity basis.

The parties are restrained from further drawing down on any loans unless agreed in writing between the parties.

Liberty to Apply

Liberty be reserved to the parties to mention this matter to me, by arrangement with my Associate (associate.judgeriethmuller@federalcircuitcourt.gov.au) following the completion of discovery and mediation as ordered.

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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