Chadwick and Chadwick and Anor (No. 2) - [2016] FamCA 947

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

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…

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.

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Details

Case: [2016] FamCA 947
Decision Date: 9 November 2016

CaseChat Overview and Summary

In *Chadwick and Chadwick and Anor (No. 2)*, Gill J considered applications concerning spousal maintenance and property settlement between the Applicant Wife and the Respondent Husband, as well as applications by the Respondent Husband and the Second Respondent. The dispute involved the variation of existing spousal maintenance orders and a partial property settlement, alongside applications for summary dismissal and the dismissal of further claims.

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

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 his Response to an Application in a Case filed 2 May 2016 (save as to costs) is dismissed.

That the Second Respondent’s application for summary dismissal of the Applicant’s claim is dismissed.

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

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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