CHESTER & CHESTER - [2020] FamCA 515

FAMILY COURT OF AUSTRALIA

CHESTER & CHESTER

[2020] FamCA 515

FAMILY LAW – PROPERTY – Interim – Where the applicant wife seeks an order that the husband pay her an interim payment in the sum of $150,000 to assist her in meeting her day-to-day expenses – Where the respondent husband resists the application but proposes that he make a payment of $30,000 to the wife – Where the wife has no income and no means of supporting herself – Where the husband has complete control of all the property and superannuation of the marriage – Where the Court is satisfied that the interests of justice demand that some of the parties’ funds are paid to the wife now for her immediate use – Where an appropriate sum is $150,000 – Where the husband is ordered to pay the wife $150,000 from funds held in a joint bank account.

FAMILY LAW – INJUNCTIONS – Preservation of Property – Where the wife seeks an injunction restraining the husband from dealing with any property in his name or control without first providing her with written notice of his intention to do so – Where the husband contends that there is no evidence that the husband will act in any way to prejudice any claim the wife may have – Where in the circumstances an injunction is warranted.

Family Law Act 1975 (Cth)

Marchant & Marchant (2012) FLC 93-520
Patton & Patton [2015] FamCA 1083
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Wenz v Archer (2008) 40 Fam LR 212

APPLICANT:

Ms Chester

RESPONDENT:

Mr Chester

FILE NUMBER:

BRC

4546

2020

DATE DELIVERED:

29 June 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

22 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Brandon
Evans Brandon Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Shoebridge

SOLICITOR FOR THE RESPONDENT:

Frampton Legal

Orders

IT IS ORDERED UNTIL FURTHER ORDER

That the Applicant Wife and Respondent Husband do all acts and things as are necessary to cause the payment of $150,000 to the Applicant wife from the Joint C Bank account number …51.
That the Respondent is restrained from selling, transferring, encumbering or otherwise disposing of his interest in the real property situated at B Street, Suburb D in the State of Queensland, all or any of his shares in the companies, F Pty Ltd and G Limited (incorporated in New Zealand), from resigning as a director of or appointing any further directors to either of those companies, from causing either of those companies to sell any of their assets save in the ordinary course of business, from taking any step that would cause the G Superannuation Fund to sell, transfer, encumber or otherwise dispose of any of its real property assets, without first giving at least twenty one (21) days’ notice in writing of same to the Applicant wife through her solicitors of record.

IT IS FURTHER ORDERED

That the matter be adjourned for case management before a…

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

AGLC: CHESTER & CHESTER [2020] FamCA 515
Case: [2020] FamCA 515
Decision Date: 29 June 2020

CaseChat Overview and Summary

In the matter of *Chester & Chester*, Forrest J of the Family Court of Australia considered an application by the wife for an interim payment and an injunction. The wife sought $150,000 to meet her day-to-day expenses, while the husband proposed a payment of $30,000. The wife had no income or means of support, and the husband controlled all marital property and superannuation. The wife also sought an injunction to restrain the husband from dealing with property without providing her with prior written notice.

The court was required to determine whether an interim payment to the wife was warranted and, if so, in what amount. Additionally, the court had to consider whether an injunction was necessary to preserve the wife's potential claims against the husband's assets.

Forrest J reasoned that the interests of justice demanded an immediate payment to the wife for her use, finding $150,000 to be an appropriate sum. The court was satisfied that an injunction was also warranted, despite the husband's contention that there was no evidence he would act to prejudice the wife's claims, as the circumstances justified such a protective measure.

Consequently, the court ordered the husband to pay the wife $150,000 from a joint bank account. The court also granted an injunction restraining the husband from dealing with specific real property and company shares, or taking certain actions in relation to those companies and a superannuation fund, without providing the wife with at least twenty-one days' written notice. The matter was adjourned for case management.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER

That the Applicant Wife and Respondent Husband do all acts and things as are necessary to cause the payment of $150,000 to the Applicant wife from the Joint C Bank account number …51.

That the Respondent is restrained from selling, transferring, encumbering or otherwise disposing of his interest in the real property situated at B Street, Suburb D in the State of Queensland, all or any of his shares in the companies, F Pty Ltd and G Limited (incorporated in New Zealand), from resigning as a director of or appointing any further directors to either of those companies, from causing either of those companies to sell any of their assets save in the ordinary course of business, from taking any step that would cause the G Superannuation Fund to sell, transfer, encumber or otherwise dispose of any of its real property assets, without first giving at least twenty one (21) days’ notice in writing of same to the Applicant wife through her solicitors of record.

IT IS FURTHER ORDERED

That the matter be adjourned for case management before a Registrar at a time and on a date to be advised.

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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