FAMILY COURT OF AUSTRALIA
| CHADWICK & CHADWICK AND ANOR (NO. 2) | [2016] FamCA 947 |
| FAMILY LAW – PROPERTY – Where applicant seeks to join a third party as a second respondent – Where second respondent seeks summary dismissal of application – Where summary dismissal refused – Where second respondent is joined to the proceedings. FAMILY LAW – PROPERTY – Transaction to defeat claims – s 106B Application – Where relief not effective – Where application is refused. FAMILY LAW – PROPERTY – Interim distribution –– Where both parties require funds for living costs and litigation – Where interim distribution granted. FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where Wife’s lack of capacity is by consent – Where evidence suggests Husband’s capacity to pay – Where spousal maintenance sum increased. |
Family Law Act 1975 (Cth) ss 75(2), 79, 106B
Family Law Rules 2004 (Cth)
Corporations Act 2001 (Cth) s 445F
| American Cyanamid v Ethicon Ltd (1975) AC 369 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 Blueseas Investments Pty Ltd v Mitchell and McGillivray [1999] FLC 92-856 Breedon & Bonser [2013] FamCAFC 16 DMW v CGW [1982] HCA 73 Epitoma Pty Ltd v Australian Meat Industry Employees’ Union and Ors (No.2) (1984) 54 ALR 730 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR125 R v Ross-Jones, ex parte Green [1984] HCA 82 Strahan & Strahan (2011) FLC 93-466 |
Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651
Yunghanns& Yunghanns [1999] FamCA64
| APPLICANT: | Ms Chadwick |
| RESPONDENT: | Mr Chadwick |
| SECOND RESPONDENT: | Mr Hsiang |
| FILE NUMBER: | SYC | 2478 | of | 2015 |
| DATE DELIVERED: | 9 November 2016 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 13 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell, SC |
| SOLICITOR FOR THE APPLICANT: | Macpherson & Kelly Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander |
| SOLICITOR FOR THE RESPONDENT: | Tomaras Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | Mr Tzovaras, Tzovaras Legal Corp |
Orders
Spouse Maintenance
That Order 1 of the Orders dated 24 November 2015 be varied to increase the amount of spousal maintenance payable by the Respondent Husband to the Applicant Wife to the sum of $2,100 per week, the first such payment to be made on the first Monday after the date of these Orders and each Monday thereafter.
Partial Property Settlement
That within 35 days of the date of these orders, the Respondent Husband pay to the Wife the sum of $200,000 by way of partial property settlement.
Despite the orders of 14 December 2015, in order to comply with order 2 and only to the extent that it is necessary to do so, the Husband is at liberty to do all acts and things and sign all documents necessary to sell such of the shares/equities/interest rate securities held by J Pty Ltd, as Corporate Trustee of the Chadwick Family Discretionary Trust No 5, with Ord Minnett.
Further orders
That the Respondent’s application for orders as contained in…
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- Case
- [2016] FamCA 947
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate quantum of spousal maintenance to be paid by the Respondent Husband to the Applicant Wife, and the terms of a partial property settlement. Additionally, the court had to consider the Respondent Husband's application for specific orders and the Second Respondent's application for summary dismissal of the Applicant's claim.
Gill J varied the existing spousal maintenance order to increase the weekly payment to $2,100. The court also ordered the Respondent Husband to pay $200,000 by way of partial property settlement within 35 days, authorising him to sell certain assets held by J Pty Ltd, as Corporate Trustee of the Chadwick Family Discretionary Trust No 5, to facilitate this payment. The Respondent Husband's application for further orders and the Second Respondent's application for summary dismissal were dismissed. The Applicant's further amended application was also dismissed, save for costs. Costs for each party were reserved to the trial.
Orders
Orders of the court
Spouse Maintenance
1.
That Order 1 of the Orders dated 24 November 2015 be varied to increase the amount of spousal maintenance payable by the Respondent Husband to the Applicant Wife to the sum of $2,100 per week, the first such payment to be made on the first Monday after the date of these Orders and each Monday thereafter.
Partial Property Settlement
2.
That within 35 days of the date of these orders, the Respondent Husband pay to the Wife the sum of $200,000 by way of partial property settlement.
3.
Despite the orders of 14 December 2015, in order to comply with order 2 and only to the extent that it is necessary to do so, the Husband is at liberty to do all acts and things and sign all documents necessary to sell such of the shares/equities/interest rate securities held by J Pty Ltd, as Corporate Trustee of the Chadwick Family Discretionary Trust No 5, with Ord Minnett.
Further orders
4.
That the Respondent’s application for orders as contained in his Response to an Application in a Case filed 2 May 2016 (save as to costs) is dismissed.
5.
That the Second Respondent’s application for summary dismissal of the Applicant’s claim is dismissed.
6.
The Application in a Case filed on 9 December 2015, further amended on 12 July 2016, (save as to costs) is otherwise dismissed and removed from the pending cases list.
Costs
7.
That costs of each of the parties are reserved to the trial.
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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