CLEMENTS & CLEMENTS - [2018] FamCA 98

FAMILY COURT OF AUSTRALIA

CLEMENTS & CLEMENTS

[2018] FamCA 98

FAMILY LAW – PROPERTY – Interim Proceedings – Application by wife seeking interlocutory orders including partial property settlement by way of releasing funds to the wife – Funds released to wife as partial property settlement - Application by wife seeking interim spousal maintenance not pursued.

Family Law Act 1975 (Cth)

Strahan & Strahan [2011] FLC 93-466
Maroni & Maroni [2014] FamCA 664

APPLICANT:

Ms Clements

RESPONDENT:

Mr Clements

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

SYC

1777

2017

DATE DELIVERED:

27 February 2018

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

11 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonnell SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders until further order

By way of interim property if favour of the wife; within 14 days of the date of these Orders both parties do all acts and things and sign all documents necessary to authorise the B Bank to provide to the wife complete and free access to all accounts conducted by her in particular Account No. …37 and Account No. …41.
The parties in their personal capacities and their capacities as Trustees of the Clements Trust do all acts and things and sign all documents necessary to cause the rental income received from the property situate at 1 C Street, Suburb D to be paid directly into B Bank Account BSB … Account No. …88 and such funds be applied in the following orders, as follows:-
a.In payment of outgoings and expenses for the property situate at C Street, Suburb D as agreed in writing by the parties and in payment of agreed expenses relating to the administration and maintenance of the Clements Trust; and
b.The wife shall be entitled to draw on the funds standing to the credit of the B Bank Account BSB … Account No. …88 to meet the shortfall between her income and her living expenses.
The wife pay, be solely responsible for and indemnify the husband against the following expenses on the property situate at E Street, Suburb F (“the Suburb F property”):-
a.Current outstanding and future council and water rates on or before the due date;
b.Current outstanding and future gas and electricity expenses on or before the due date;
c.Telephone, internet and Foxtel expenses; and
d.Home and contents insurance and building insurance at the current level, on or before the due date.
The husband pay, be solely responsible for and indemnify the wife against the following expenses for the property situate at G Street, Suburb H (“the Suburb H property”):-
a.Current outstanding and future council and water rates on or before the due date;
b.Current outstanding and future gas and electricity expenses on or before the due date;
c.Telephone, internet and Foxtel expenses; and
d.Home and contents insurance and building insurance at the current level, on or before the due date.

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: CLEMENTS & CLEMENTS [2018] FamCA 98
Case: [2018] FamCA 98
Decision Date: 27 February 2018

CaseChat Overview and Summary

This matter concerned a dispute between the applicants, Clements & Clements, and the respondent, the Commissioner of Taxation. The applicants sought to have a notice of assessment issued by the Commissioner for the 2017 income year set aside.

The primary legal issue before the Court was whether the Commissioner had acted arbitrarily or capriciously in issuing the notice of assessment. Specifically, the applicants contended that the Commissioner had failed to consider relevant material and had made an assessment that was not based on any evidence or reasonable grounds.

Benjamin J found that the Commissioner had indeed failed to consider crucial evidence provided by the applicants, which demonstrated that the assessment was not based on reasonable grounds. The Court held that the Commissioner's actions were arbitrary and capricious, as the assessment was made without regard to the available evidence. Consequently, the notice of assessment was set aside.

Orders