Bloxham & Bloxham - [2018] FamCA 1070

FAMILY COURT OF AUSTRALIA

BLOXHAM & BLOXHAM

[2018] FamCA 1070

FAMILY LAW – Interim property – Where funds released to the husband as a consequence of his precipitate conduct – Where consideration of the parties’ relationship and contributions to the present property pool as known – Where consideration of relevant s 75(2) factors – Where husband contends that property pool significant with further capital payments to come – Where husband received about 20 per cent of pool as asserted by him – Where same sum sought by wife substantially to be held in real estate for accommodation of herself and the children – Where appropriate and in the interests of justice that order be made substantially as sought by the wife.

Family Law Act 1975 (Cth) ss 75, 79, 80

Harris & Harris (1993) FLC 92-378
Kelby & Kelby [2016] FamCA 698
Moroni & Moroni [2014] FamCA 664
Strahan & Strahan [2009] FamCAFC 166
Vincent & Vincent [2013] FamCA 425
Vittorio & Oliphant [2017] FamCA 802
Wenz v Archer (2008) 40 Fam LR 212
Yeh & Jyu [2014] FamCA 162

APPLICANT:

Mr Bloxham

RESPONDENT:

Ms Bloxham

FILE NUMBER:

PAC

2582

2017

DATE DELIVERED:

13 December 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

22 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC with Mr Wong

SOLICITOR FOR THE APPLICANT:

Watts McCray (NSW) Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT:

Dorter Family Lawyers and Mediators

Orders

That the husband within seven days from this date do all things necessary to withdraw a sum of $11,225,000.00 from the funds held in the CBA Account bearing BSB … Account Number …31 and pay such sum to the wife’s solicitors to be held by such solicitors in a controlled money interest bearing account in trust for the wife subject to the following orders.
That the wife be restrained from authorising or directing her solicitors to pay funds received by the solicitors from the husband in any way other than as follows:
(a)As to sums not exceeding $10,000,000.00 for the purchase of a property in the name of the wife with such sum to be applied to the purchase price, stamp duty, legal costs on purchase and furnishing of the property;
(b)As to the balance of $1,225,000.00 together with interest on any unspent balance as accrued to the wife or as she may otherwise direct in writing provided always that the wife may at her discretion apply all or part of same to the purchase of the property as provided for.
That the wife is restrained from selling or encumbering by way of mortgage the property purchased by her pending further order.
That the characterisation of the sum to be paid to the wife’s solicitors is reserved to final trial or agreement between the parties.
That costs of and incidental to the present application be reserved to final trial or agreement between the parties.

Note: The form of the order…

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 Bloxham & Bloxham

Details

AGLC: Bloxham & Bloxham [2018] FamCA 1070
Case: [2018] FamCA 1070
Decision Date: 13 December 2018

CaseChat Overview and Summary

In Bloxham & Bloxham, Foster J considered an application concerning the division of marital assets. The dispute involved the husband being ordered to withdraw a significant sum from a joint bank account and pay it to the wife's solicitors, to be held in a controlled money account.

The court was required to determine the terms upon which these funds should be released to the wife, specifically how the sum of $11,225,000.00 should be applied. This included the allocation for the purchase of a property, stamp duty, legal costs, and furnishing, as well as the disposition of any remaining balance. The court also had to consider whether the wife should be restrained from selling or encumbering the property purchased with these funds pending further orders.

Foster J reasoned that the wife should be permitted to use up to $10,000,000.00 for the purchase of a property, including associated costs and furnishing. The remaining balance of $1,225,000.00, along with any accrued interest, was to be held for the wife's benefit, with the discretion to apply it towards the property purchase. The court also imposed a restraint on the wife selling or encumbering the purchased property. The characterisation of the funds paid to the wife's solicitors and the costs of the application were reserved for final determination.

Orders

Orders of the court

That the husband within seven days from this date do all things necessary to withdraw a sum of $11,225,000.00 from the funds held in the CBA Account bearing BSB … Account Number …31 and pay such sum to the wife’s solicitors to be held by such solicitors in a controlled money interest bearing account in trust for the wife subject to the following orders.

That the wife be restrained from authorising or directing her solicitors to pay funds received by the solicitors from the husband in any way other than as follows:

(a) As to sums not exceeding $10,000,000.00 for the purchase of a property in the name of the wife with such sum to be applied to the purchase price, stamp duty, legal costs on purchase and furnishing of the property;

(b) As to the balance of $1,225,000.00 together with interest on any unspent balance as accrued to the wife or as she may otherwise direct in writing provided always that the wife may at her discretion apply all or part of same to the purchase of the property as provided for.

That the wife is restrained from selling or encumbering by way of mortgage the property purchased by her pending further order.

That the characterisation of the sum to be paid to the wife’s solicitors is reserved to final trial or agreement between the parties.

That costs of and incidental to the present application be reserved to final trial or agreement between the parties.

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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