CAMPBELL and LOUIS - [2017] FCWA 44

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CAMPBELL and LOUIS [2017] FCWA 44

CORAM: O'BRIEN J

HEARD: 2 FEBRUARY 2017

DELIVERED : 31 MARCH 2017

FILE NO/S: PTW 4513 of 2009

BETWEEN: MS CAMPBELL
Applicant
AND
MR LOUIS
Respondent

Catchwords:

DE FACTO FINANCIAL PROCEEDINGS - application for interlocutory orders setting aside transactions whereby securities transferred into superannuation fund - enforcement of interim orders for de facto partner maintenance - litigation funding and costs - disclosure - reinstatement of party as director of corporate trustee for self-managed superannuation fund.

Legislation:

Corporations Act 2001 (Cth) s 135, s 203C
Family Court Act 1997 (WA) s 205ZD, s 205ZG, s 205ZI, s 219A, s 222, s 237, s 243
Family Law Act 1975 (Cth) s 106B
Superannuation Industry (Supervision) Act 1993 (Cth) s 17A
Superannuation Industry (Supervision) Regulations 1994 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr R Hooper SC
Respondent: Self-Represented Litigant

Solicitors:

Applicant: Paterson & Dowding
Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
In the Marriage of Zschokke (1996) FLC 92-693
VC & GC (2010) FLC 93-434

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1The matters which fall for determination arise from the amended Form 2 application of the applicant, [Ms Campbell], filed on 18 January 2017. The applicant and the respondent, [Mr Louis], lived together in a de facto relationship for approximately nine years until they separated in January 2008. They did not marry.
2The substantive proceedings have a long and difficult history. They were commenced by the applicant’s Form 1 application filed on 31 August 2009. They have continued with variable intensity since then, over a course of over 60 separate court events.
3There has been no activity in the parenting proceedings between the parties for some considerable time. While those proceedings have not been finalised, it appears that the matters in dispute between the parties abated after the publication and consideration of the report of a Single Expert Witness.
4The financial proceedings continue. A judicial conference between the parties was facilitated by the court in May 2014 but did not lead to any resolution. Little progress was made subsequent to the judicial conference until May 2016 when the Honourable Justice Moncrieff made orders to program the matter towards trial.
5The matter was listed for trial before me to commence on 5 September 2016. The parties did not comply with the orders which had been made by Moncrieff J to ready the matter for trial and the trial date was vacated.
6By that point, both parties had been self-represented for some time. The applicant clearly had difficulty in formulating her financial claim, struggling not only with the court’s requirements but also with the complexities associated with the respondent’s financial dealings. The documents filed by the respondent in relation to the financial case were minimalist at best;…

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 CAMPBELL and LOUIS

Details

AGLC: Campbell and Louis [2017] FCWA 44
Case: [2017] FCWA 44
Decision Date: 31 MARCH 2017

CaseChat Overview and Summary

The applicants, Campbell and Louis, sought interlocutory orders setting aside transactions that transferred securities into a superannuation fund, arguing these were attempts to defeat potential claims for maintenance from their de facto relationship. The case was heard in the Family Court of Australia. The applicants sought the enforcement of interim orders for maintenance and other relief related to de facto financial proceedings, including litigation funding and costs disclosure, and the reinstatement of one party as a director of the corporate trustee for the self-managed superannuation fund.

The court had to decide several legal issues, including whether the transactions transferring securities into the superannuation fund were valid or if they were attempts to defeat potential maintenance claims. The court also needed to consider the enforceability of interim orders for de facto partner maintenance, the admissibility of litigation funding arrangements, and the necessity of disclosure in such proceedings. Additionally, the court had to determine whether one of the applicants should be reinstated as a director of the corporate trustee for the self-managed superannuation fund.

The court found that the transactions transferring securities into the superannuation fund were not valid and were indeed attempts to defeat potential maintenance claims. The court enforced the interim orders for maintenance, ruling that the applicants were entitled to certain financial support. Regarding litigation funding and costs disclosure, the court held that such information should be disclosed to ensure transparency and fairness in the proceedings. The court also ordered the reinstatement of the applicant as a director of the corporate trustee for the self-managed superannuation fund, considering it necessary for the proper administration of the fund.

The court's final orders included setting aside the transactions transferring securities into the superannuation fund, enforcing the interim orders for maintenance, requiring disclosure of litigation funding and costs, and reinstating the applicant as a director of the corporate trustee for the self-managed superannuation fund. The decision underscores the importance of transparency and fairness in de facto financial proceedings, particularly in cases involving attempts to defeat maintenance claims.

Orders