Ciu and Nao - [2016] FamCA 1037

FAMILY COURT OF AUSTRALIA

CIU & NAO

[2016] FamCA 1037

FAMILY LAW – PROPERTY – Injunctions – Where parties operate a partnership boarding house business – Where wife remained in occupation of the boarding house premises after separation – Where interim orders made by consent previously as to the ongoing conduct and management of the boarding house business – Where since interim orders the wife has failed to comply with same and unilaterally retained and disbursed income from the business – Where husband seeks that the wife vacate the property and that the property be independently managed – Where husband seeks that the wife received one half of the net monthly income from the business pending further order – Where order made for the wife to vacate the property and receive income as proposed by the husband.

Family Law Act 1975 (Cth) ss 72(1), 114

APPLICANT:

Mr Ciu

RESPONDENT:

Ms Nao

FILE NUMBER:

PAC

2330

2016

DATE DELIVERED:

2 December 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

14 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

SOLICITOR FOR THE APPLICANT:

Uther Webster & Evans Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Eardley

SOLICITOR FOR THE RESPONDENT:

Lavulo Lawyers

Orders

That orders made on 15 August 2016 be discharged.
That within 7 days from the date of these orders the wife vacate the property at B Street, Suburb C and that thereafter the wife remain away from the said property and not approach or enter upon the said property except in the company of a managing agent appointed by the husband.
That upon vacating the property at B Street, Suburb C the wife be restrained from removing from that property any items of personalty other than her clothing and personal effects except with the written consent of the husband with such writing to include SMS or email communication.
That the wife is hereby restrained from approaching or contacting or communicating with all current and future employees, residents and tenants of the property at B Street, Suburb C whether by letter or email or telephone text message or any other means.
That the wife is hereby restrained from purporting to authorise and direct any current or future residents and tenants of the property at B Street, Suburb C to pay rental income to herself or any third party nominated by her.
That the wife is hereby restrained from representing to any person or entity or organisation that she has authority to undertake any action or thing on behalf of the boarding house business operated at the B Street, Suburb C property without the written consent of the husband with such writing to include SMS or email communication.
That the wife is otherwise restrained from interfering with or attempting to interfere with the ordinary operation and course of business of the boarding house enterprise operated from the property at B Street, Suburb C.
That the husband is hereby authorised and directed on behalf 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 Ciu and Nao

Details

AGLC: Ciu and Nao [2016] FamCA 1037
Case: [2016] FamCA 1037
Decision Date: 2 December 2016

CaseChat Overview and Summary

The case of Ciu and Nao involved a dispute between a husband and wife concerning property and business interests. The matter came before Foster J, who was required to make orders regarding the matrimonial home, a boarding house business operated from that property, and other assets. The orders sought to regulate the parties' conduct and financial arrangements pending further determination of their rights and obligations.

The central legal issues before the Court were how to manage and control the jointly held property and the associated boarding house business, and to what extent each party should be restrained from interfering with the other's access to or control over these assets. Specifically, the Court had to determine the terms of the wife's departure from the matrimonial home, the restrictions on her ability to deal with the property and business, and the husband's authority to appoint a managing agent to oversee the boarding house operations. Furthermore, the Court considered the disposition of rental income and the management of a joint bank account, as well as the husband's proposed dealings with another property.

Foster J's reasoning led to a series of detailed orders aimed at preserving the status quo of the business while providing for the wife's financial needs and limiting her interference. The Court discharged previous orders and imposed significant restrictions on the wife, including vacating the property, being restrained from removing certain items, and having no contact with employees, residents, or tenants of the boarding house. The husband was authorised to appoint a managing agent to handle the day-to-day operations of the boarding house, including collecting rent, paying expenses, and distributing surplus income. The agent was directed to provide monthly statements to the wife, and a minimum monthly payment was to be made to her from the business profits. The Court also made orders concerning a joint bank account and the husband's intention to deal with another property, requiring him to provide the wife with written notice.

Orders

Orders of the court

That orders made on 15 August 2016 be discharged.

That within 7 days from the date of these orders the wife vacate the property at B Street, Suburb C and that thereafter the wife remain away from the said property and not approach or enter upon the said property except in the company of a managing agent appointed by the husband.

That upon vacating the property at B Street, Suburb C the wife be restrained from removing from that property any items of personalty other than her clothing and personal effects except with the written consent of the husband with such writing to include SMS or email communication.

That the wife is hereby restrained from approaching or contacting or communicating with all current and future employees, residents and tenants of the property at B Street, Suburb C whether by letter or email or telephone text message or any other means.

That the wife is hereby restrained from purporting to authorise and direct any current or future residents and tenants of the property at B Street, Suburb C to pay rental income to herself or any third party nominated by her.

That the wife is hereby restrained from representing to any person or entity or organisation that she has authority to undertake any action or thing on behalf of the boarding house business operated at the B Street, Suburb C property without the written consent of the husband with such writing to include SMS or email communication.

That the wife is otherwise restrained from interfering with or attempting to interfere with the ordinary operation and course of business of the boarding house enterprise operated from the property at B Street, Suburb C.

That the husband is hereby authorised and directed on behalf of the husband and wife to forthwith appoint an appropriately qualified managing agent to manage the day-to-day conduct of the boarding house enterprise conducted at the property at B Street, Suburb C including:

(a) authorising the managing agent to deposit gross rental income for the property to the agent’s trust account;

(b) authorising the managing agent to pay from the agent’s trust account all outgoings and expenses associated with and incidental to the operation of the business and the Suburb C property including but not limited to payments in relation to agents commission, property rates, property levies, property insurances, mortgage payments, utility bills, internet and phone bills, property taxes and costs associated with preparation and lodgement of all necessary BAS and partnership returns for the business;

(c) authorising the managing agent commencing on 6 January 2017 and thereafter on the sixth day of each and every month to pay 50 per cent of any surplus rental income after payment of the expenses referred to above in an account nominated by the wife and 50 per cent of any such surplus rental income to an account nominated by the husband provided always that any such payment to the wife shall be not less than $2,200.00 per month with any balance then remaining then to be paid to the husband with such payments to be by way of preliminary distribution of net partnership income as determined at the end of each financial year;

(d) authorising the managing agent to provide to the wife at the close of each relevant monthly period a copy of the management statement evidencing receipts and disbursements in relation to the boarding house business conducted at and the property at B Street, Suburb C.

That pending further order the husband and wife are restrained from withdrawing or in any way accessing funds in National Australia Bank account #870 except by joint authority of the husband and wife.

10.

That the husband provide to the wife written notice of his intention to deal with the property at D Street, Suburb E by way of sale, mortgage or lease with that notice in any event to be given not less than one month before the formal listing of the property for sale or the entry into by the husband of any further mortgage or lease in relation to the subject property and in respect of this order the wife has liberty to apply on short notice.

11.

That otherwise all interim applications before the Court be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.