Cabelo and Cabelo - [2020] FamCA 552

FAMILY COURT OF AUSTRALIA

CABELO & CABELO

[2020] FamCA 552

FAMILY LAW – INJUNCTIONS – Preservation of property – where the wife sought interlocutory injunctive relief pending the final hearing of this matter – where the parties have a complex farming business – where the wife alleges that the husband has failed to provide full and frank disclosure – where the wife alleges the husband has entered into a number of loan agreements with a third party without her knowledge or consent – where the matter is adjourned for the husband and a third party the wife seeks be joined to the proceedings to file material in response and that date is only weeks away – where this is a significant factor when weighing up the balance of any hardship and the convenience of the orders as between the parties – where injunctions are made in the terms sought by the wife

Family Law Act 1975 (Cth) s 114

Mullen and De Bry (2006) FLC 93-293
Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729
Tsiang & Wu and Ors (2019) FLC 93-911

APPLICANT:

Ms Cabelo

RESPONDENT:

Mr Cabelo

INTERESTED PARTY:

Mr B Cabelo

FILE NUMBER:

MLC

3263

2018

DATE DELIVERED:

10 July 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

11 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Werner

SOLICITOR FOR THE APPLICANT:

Johnston Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McCormick

SOLICITOR FOR THE RESPONDENT:

Goldsmiths Lawyers

COUNSEL FOR THE INTERESTED PARTY:

Mr Marchetti

SOLICITOR FOR THE INTERESTED PARTY:

Grice Legal

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

Pursuant to paragraph 4 of the Orders made on 11 June 2020 the husband personally and in his capacity as officeholder of any company is further restrained from selling, encumbering or otherwise altering his interests in any other real estate or water licenses save for and with the prior written consent of the wife.
The husband be restrained from entering into or extending any loan facility or borrowing funds either personally or in his capacity as an officeholder of any corporate entity save for in the ordinary course of business, with capital works, capital improvements, land development and purchase of plant and equipment exceeding $5,000.00 in value being deemed not to be in the ordinary course of business.
The husband personally and in his capacity as an officeholder of any company be restrained from entering into any transaction which has the effect of creating a debt, or increasing the level of indebtedness, in favour of Mr B Cabelo or any company or trust in which Mr B Cabelo holds an interest.

Costs

By 4.00pm on 27 July 2020 the parties file and serve any written submissions in support of an application for costs arising out of or incidental to the Amended Application in a Case filed 10 June 2020.
By 4.00pm on 10 August 2020 the parties file and serve any written submissions in reply to the application for…

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 Cabelo and Cabelo

Details

AGLC: Cabelo and Cabelo [2020] FamCA 552
Case: [2020] FamCA 552
Decision Date: 10 July 2020

CaseChat Overview and Summary

In the matter of *Cabelo and Cabelo*, heard by Macmillan J, the dispute concerned applications for restraining orders against the husband. The wife sought orders to prevent the husband from dealing with certain assets and incurring further debt, both personally and in his capacity as an officeholder of any company.

The court was required to determine whether to grant further restraining orders against the husband. Specifically, the issues included whether the husband should be restrained from selling, encumbering, or otherwise altering his interests in real estate or water licenses, and from entering into or extending loan facilities or borrowing funds, except in the ordinary course of business. The court also considered whether the husband should be restrained from transactions that would create or increase indebtedness in favour of himself or entities in which he holds an interest.

Macmillan J applied principles relating to the preservation of assets in family law proceedings. The court ordered that the husband be restrained from selling, encumbering, or otherwise altering his interests in any other real estate or water licenses without the wife's prior written consent. Furthermore, the husband was restrained from entering into or extending any loan facility or borrowing funds, personally or as an officeholder, except in the ordinary course of business, with specific exclusions for capital works, improvements, development, and plant/equipment purchases exceeding $5,000. The husband was also restrained from entering into transactions that would create or increase indebtedness in his favour or in favour of entities in which he holds an interest. The court also made directions regarding the filing and service of written submissions concerning costs.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER THAT

Pursuant to paragraph 4 of the Orders made on 11 June 2020 the husband personally and in his capacity as officeholder of any company is further restrained from selling, encumbering or otherwise altering his interests in any other real estate or water licenses save for and with the prior written consent of the wife.

The husband be restrained from entering into or extending any loan facility or borrowing funds either personally or in his capacity as an officeholder of any corporate entity save for in the ordinary course of business, with capital works, capital improvements, land development and purchase of plant and equipment exceeding $5,000.00 in value being deemed not to be in the ordinary course of business.

The husband personally and in his capacity as an officeholder of any company be restrained from entering into any transaction which has the effect of creating a debt, or increasing the level of indebtedness, in favour of Mr B Cabelo or any company or trust in which Mr B Cabelo holds an interest.

Costs

By 4.00pm on 27 July 2020 the parties file and serve any written submissions in support of an application for costs arising out of or incidental to the Amended Application in a Case filed 10 June 2020.

By 4.00pm on 10 August 2020 the parties file and serve any written submissions in reply to the application for costs.

That any submissions as to costs should be limited to 10 pages.

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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