Binett and Binett - [2018] FamCA 441

FAMILY COURT OF AUSTRALIA

BINETT & BINETT

[2018] FamCA 441

FAMILY LAW – INTERIM PROPERTY – Where there is a significant matrimonial asset pool – Where the wife seeks sale of two of the parties’ various properties to fund interim property payment to pay her litigation expenses – Where the husband controls the vast majority of the parties’ assets and financial resources – Where the payment the wife seeks comprises less than 10 per cent of the matrimonial asset pool as asserted by the husband – Where there is a need to “level playing field” – Where the wife to receive payment from the husband and sale of property the nature of which to be characterised at final hearing – Where the wife also seeks injunctive orders – Where the husband has subsequent to separation dealt with various assets and financial resources without notice to the wife – Where the relief sought by the wife is not onerous – Where it is appropriate to make injunctive orders restraining the husband from dealing with various assets without notice to the wife – Orders made.

Family Law Act 1975 (Cth) ss 75(2), 79, 114

Harris & Harris (1993) FLC 92-378
In the Marriage of J U and T Poletti (1990) 15 FamLR 794
Moroni & Moroni [2014] FamCA 664
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Binett

RESPONDENT:

Mr Binett

FILE NUMBER:

PAC

1422

2017

DATE DELIVERED:

15 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

21 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Jacqueline Kyle Family Law

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

LCI Legal

Orders

That within seven (7) days from this date the husband pay to the wife or as she may otherwise direct in writing the sum of $100,000.00.
That the wife is hereby appointed trustee for sale of the property situate at B Street, Suburb C and for the purposes of this Order:
(a)the said property shall vest in her as trustee for sale;
(b)the wife shall do all things necessary to obtain vacant possession of the said property;
(c)the wife shall do all things necessary to sell the property at the best price reasonably obtainable by such method as she may in her discretion determine; and
(d)the wife shall apply the net proceeds of sale after selling costs, rate adjustments and discharge of any liability secured over the said property as to $300,000.00 to the wife and as to the balance then remaining to be held by the wife’s solicitors in an interest bearing account in trust for the husband and wife pending further order.
That the husband is hereby restrained from dealing with, further encumbering, assigning or transferring any or all of his right, title and interest in any real estate property in his name or in the name of any corporate entity controlled by him and is further restrained from taking any action to change…

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 Binett and Binett

Details

AGLC: Binett and Binett [2018] FamCA 441
Case: [2018] FamCA 441
Decision Date: 15 June 2018

CaseChat Overview and Summary

In the matter of *Binett and Binett*, Foster J made orders concerning the financial and property settlement between the husband and wife. The dispute involved the division of assets and the husband's future dealings with his property interests.

The court was required to determine the appropriate distribution of funds and property between the parties, including the immediate payment of a sum by the husband to the wife. Furthermore, the court needed to establish a mechanism for the sale of a specific property and to impose restrictions on the husband's ability to deal with his other real estate and corporate interests.

Foster J ordered the husband to pay $100,000 to the wife within seven days. The wife was appointed trustee for the sale of a property located at B Street, Suburb C, with the property vesting in her for this purpose. She was directed to obtain vacant possession and sell the property at the best price obtainable. The net proceeds of sale were to be applied first to pay off any secured liabilities, then $300,000 to the wife, with the remaining balance to be held in trust by her solicitors pending further order. The husband was restrained from dealing with, encumbering, assigning, or transferring his interests in any real estate or corporate entities he controlled without providing the wife with 28 days' written notice, including reasons for the proposed action. The wife was granted liberty to apply to the court on short notice in response to any such notice from the husband. The question of costs was reserved.

Orders

Orders of the court

That within seven (7) days from this date the husband pay to the wife or as she may otherwise direct in writing the sum of $100,000.00.

That the wife is hereby appointed trustee for sale of the property situate at B Street, Suburb C and for the purposes of this Order:

(a) the said property shall vest in her as trustee for sale;

(b) the wife shall do all things necessary to obtain vacant possession of the said property;

(c) the wife shall do all things necessary to sell the property at the best price reasonably obtainable by such method as she may in her discretion determine; and

(d) the wife shall apply the net proceeds of sale after selling costs, rate adjustments and discharge of any liability secured over the said property as to $300,000.00 to the wife and as to the balance then remaining to be held by the wife’s solicitors in an interest bearing account in trust for the husband and wife pending further order.

That the husband is hereby restrained from dealing with, further encumbering, assigning or transferring any or all of his right, title and interest in any real estate property in his name or in the name of any corporate entity controlled by him and is further restrained from taking any action to change the ownership of any shareholding or other interest held by him in any corporate entity controlled by him without first giving to the wife 28 days’ notice in writing of his intention to do so and providing with that notice set out reasons for the proposed dealing or action.

That the wife have liberty to apply on short notice as a consequence of any notice given to her by the husband pursuant to the previous order.

That the question of costs of and incidental to this present application be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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