Cabot and Cabot - [2019] FamCA 636

FAMILY COURT OF AUSTRALIA

CABOT & CABOT

[2019] FamCA 636

FAMILY LAW – PROPERTY – Interim distribution – Where the wife seeks orders for spousal maintenance by way of lump sum payment – Where the wife seeks, in the alternate, orders for periodic spousal maintenance – Where the wife seeks a lump sum payment for interim costs – Where the wife seeks leave to submit questions to the single expert out of time – Where the husband seeks orders dismissing the wife’s application – Where the husband seeks orders that wife provide disclosure in relation to overseas bank accounts – Where the husband consents to an order for partial property distribution in the sum of $200,000 – Where the application for interim spousal maintenance is dismissed – Orders made for interim partial property distribution – Order made for general disclosure by each party – Order made granting leave to the mother to submit questions to the single expert out of time.

Family Law Act 1975 (Cth) ss 72, 79, 80, 106B, 114, 117.
Evidence Act 1995 (Cth) s 144.
Family Law Rules 2004 r 4.15, 11.03, 12.07, 15.67A, 19.04, cl 6 of Sch 1.

Aitken & Murphy (No 2) [2012] FamCA 239
Aytugrul v R (2012) 286 ALR 441
Davidson & Davidson (No. 2) (1994) FLC 92-469
Yunghanns & Ors v Yunghanns & Ors (1999) FLC 92-836
Edgar & Strofield (2016) FLC 93-711
Gattellaro v Westpac Banking Corporation (2004) 204 ALR 258
Hall v Hall (2016) 257 CLR 490
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Medlow & Medlow (2016) 54 Fam LR 389
Stanford & Stanford (2012) FLC 93-518
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Wenz & Archer (2008) 40 Fam LR 212

APPLICANT:

Ms Cabot

RESPONDENT:

Mr Cabot

FILE NUMBER:

PAC

1189

2018

DATE DELIVERED:

10 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

20 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk QC

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd

SOLICITOR FOR THE RESPONDENT:

Swaab Attorneys

Orders

That pursuant to s 79 and s 80 of the Family Law Act 1975 (Cth), there be a partial property distribution to Ms Cabot (“the wife”) in the sum of $200,000 with such amount to be obtained by the wife in accordance with the following Orders.
That, within 14 days of receiving a request from the wife, Mr Cabot (“the husband”) shall do all acts and things as is necessary to facilitate an application to be made by the wife to the National Australia Bank for either:
(a)A draw down on the National Australia Bank mortgage secured over the property located at B Street, Suburb A, New South Wales, being the whole of the land and improvements comprised on Certificate of Title folio identifier … (“The Suburb A property”); or
(b)A further loan or an increase in the National Australia Bank mortgage secured over the Suburb A property of…

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 Cabot and Cabot

Details

AGLC: Cabot and Cabot [2019] FamCA 636
Case: [2019] FamCA 636
Decision Date: 10 September 2019

CaseChat Overview and Summary

In the matter of *Cabot and Cabot*, McClelland DCJ of the Federal Circuit Court of Australia made orders concerning a property settlement between the wife and the husband. The dispute involved the division of marital assets and the wife's access to financial information.

The court was required to determine the appropriate partial property distribution to the wife and the mechanism for its payment. Additionally, the court needed to address the wife's ability to seek further information from a joint expert and the disclosure of financial documents held by various entities controlled by the husband.

McClelland DCJ ordered a partial property distribution of $200,000 to the wife, to be facilitated by the husband through a drawdown or further loan on a mortgage secured over the Suburb A property. The husband was directed to provide all necessary assistance and documentation for the wife's loan application. The court also extended the time for the wife to ask questions of a joint expert, with the wife to bear the reasonable costs. Furthermore, the husband was ordered to use his best endeavours to provide copies of bank statements for several specified companies and trusts to the wife's legal representatives. The parties were also required to exchange letters detailing any asserted non-disclosed documents, with subsequent disclosure or objection letters to follow.

Orders

Orders of the court

That pursuant to s 79 and s 80 of the Family Law Act 1975 (Cth), there be a partial property distribution to Ms Cabot (“the wife”) in the sum of $200,000 with such amount to be obtained by the wife in accordance with the following Orders.

That, within 14 days of receiving a request from the wife, Mr Cabot (“the husband”) shall do all acts and things as is necessary to facilitate an application to be made by the wife to the National Australia Bank for either:

(a) A draw down on the National Australia Bank mortgage secured over the property located at B Street, Suburb A, New South Wales, being the whole of the land and improvements comprised on Certificate of Title folio identifier … (“The Suburb A property”); or

(b) A further loan or an increase in the National Australia Bank mortgage secured over the Suburb A property of $200,000.

For the purposes of Order (2), the husband shall do all acts and things and sign all documents necessary including providing such assistance as is reasonably requested by the wife to enable her to prepare and execute any and all applications for finance and providing any and all supporting documents that are in his possession and which are required for the purpose of the wife making the application.

That in the event of the loan application referred to in Order (2) being approved in full or in part, then the wife is to receive 100 percent of the advance that the National Australia Bank approves by way of partial property distribution.

That pursuant to r 15.67A of the Family Law Rules 2004 (Cth) (“the Rules”), the time pursuant to r 15.65(1)(a) of the Rules be extended such that the wife be permitted to ask questions of the joint expert within seven (7) days of the date of these Orders.

That the wife meets the reasonable costs of the joint expert incurred as result of the wife making the request for questions in accordance with Order (5).

That within 12 weeks of bank statements being issued to each of the entities listed in this Order, in respect of bank accounts held or operated by those entities, the husband shall use his best endeavours to cause to be provided to the wife’s legal representatives copies of bank statements of the following:

(i) C Pty Ltd;

(ii) C Unit Trust;

(iii) D2 Unit Trust;

(iv) D Pty Ltd;

(v) D1 Pty Ltd;

(vi) D2 Pty Ltd;

(vii) D2 Unit Trust;

(viii) The E Pty Ltd;

(ix) The E Unit Trust; and

(x) The F Unit Trust.

Within 14 days, each party serve on the other a letter setting out any documents they assert are required to be disclosed by that other party, pursuant to the Rules, which they assert have not previously been disclosed.

Subject to Order (10), within seven (7) days of receipt of the list referred to in Order (8), the recipient forward to the requesting party copies of all documents referred to in the list.

10.

If a party does not provide a document in accordance with Order (9), they are required to serve a letter on the other party setting out:

(a) If a party asserts that the documents sought have previously been provided, the dates on which the documents were provided, including a copy of relevant correspondence;

(b) If a document is not available, the last time the document was in their possession; or

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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