Coopers and Coopers & Anor - [2013] FamCA 924

FAMILY COURT OF AUSTRALIA

COOPERS & COOPERS AND ANOR

[2013] FamCA 924

FAMILY LAW – PROPERTY – Interim Distribution – where the wife seeks a specified sum as an interim property distribution pursuant to s 79 and s 80(1)(h) of the Family Law Act 1975 (Cth) – orders made for an interim property distribution in accordance with the order sought by the wife.

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – where the husband’s son seeks leave to be joined as a party to the proceedings – where the proposed intervener claims an equitable interest over certain real estate within the matrimonial asset pool – orders made granting leave to the proposed intervener to intervene in the proceedings.

Family Law Act 1975 (Cth) ss 74; 79; 80; 92; 117
Family Law Rules 2004 (Cth) r 6.02; 6.05; 6.06; 13.01
Federal Circuit Court Rules 2001 (Cth) r 11.03

Muschinski v Dodds (1985) 160 CLR 583
Baumgartner v Baumgartner (1987) 164 CLR 137
Waltons Stores(Interstate) Ltd v Maher (1988) 164 CLR 387

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578

Bergman & Bergman [2008] FamCAFC 207

Strahan & Strahan (interim property orders) [2009] FamCAFC 166

Finnazi & Finazzi [2012] FamCA 102

Marchant &Marchant [2012] FamCAFC 181

Vanin & Vanin [2013] FamCA 16

Kyriakos & Kyriakos [2013] FamCAFC 22

APPLICANT:

Ms Coopers

RESPONDENT:

Mr C Coopers

INTERVENER:

Mr J Coopers

FILE NUMBER:

ADC

1027

2012

DATE DELIVERED:

29 November 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

4 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Adey Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

Howe Martin & Associates

COUNSEL FOR THE INTERVENER:

Ms Kari

SOLICITOR FOR THE INTERVENER:

Norman Waterhouse

Orders

By consent of the applicant and respondent it is ordered that:

The husband’s interest in the following:-
(a)the business known as the Business E, including all licenses, plant and equipment;
(b)the property situated at Property 1, B Street, Suburb M, in the State of South Australia;
(c)the property situated at Property 2, B Street, Suburb M in the State of South Australia;
(d)the property situated at C Street, Suburb M in the State of South Australia;
be valued by Mr A of V Valuers.
The following properties be valued by F Valuers:-
(a)5 G Avenue, Suburb H in the State of South Australia;
(b)I Street, Suburb J in the State of South Australia;
(c)3 K Street, Suburb L in the State of South Australia;
(d)1 and 8 N Street, Suburb O in the State of South Australia;
(e)P Street, Suburb L in the State of South Australia;
(f)Q Street, Suburb O in the State of South Australia;
(g)R Street, Suburb S in the State of South Australia;
The Type T boat be valued by U Valuers at the joint expense of the husband and the wife.
The valuations be conducted as single expert valuations pursuant to Part 15.5 of the Family Law Rules.

It…

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: [2013] FamCA 924
Decision Date: 29 November 2013

CaseChat Overview and Summary

In the Family Court of Australia, Dawe J considered an application by the wife for an interim property distribution under sections 79 and 80(1)(h) of the *Family Law Act 1975* (Cth). The proceedings also involved an application by the husband's son, Mr. J Coopers, for leave to be joined as a party to the proceedings, claiming an equitable interest in certain real estate within the matrimonial asset pool.

The court was required to determine the terms of an interim property distribution and whether to grant leave for Mr. J Coopers and Z Pty Ltd to intervene in the proceedings. The court also needed to address the valuation of various assets, the provision of financial documentation, and the completion of outstanding tax returns and financial statements for several entities.

The court made orders by consent regarding the valuation of the husband's interest in a business and several properties, as well as other specified properties and a boat, to be conducted by single experts at the joint expense of the parties. The husband was ordered to provide formal discovery of various financial documents, including personal and company tax returns, financial statements, bank account statements, and documents relating to investments and asset disposals. Crucially, the husband was ordered to pay the wife the sum of $150,000 as a partial property settlement. The court also directed the husband to ensure the completion of outstanding tax returns and financial statements for himself and various associated entities. Leave was granted for Mr. J Coopers and Z Pty Ltd to intervene in the proceedings, and certain prior responses and replies concerning Mr. J Coopers' application were dismissed. The costs of Mr. J Coopers' application and the proceedings thus far were reserved to the final hearing.

Orders

Orders of the court

By consent of the applicant and respondent it is ordered that:

The husband’s interest in the following:-

(a) the business known as the Business E, including all licenses, plant and equipment;

(b) the property situated at Property 1, B Street, Suburb M, in the State of South Australia;

(d) the property situated at C Street, Suburb M in the State of South Australia;

be valued by Mr A of V Valuers.

The following properties be valued by F Valuers:-

(a) 5 G Avenue, Suburb H in the State of South Australia;

(b) I Street, Suburb J in the State of South Australia;

(d) 1 and 8 N Street, Suburb O in the State of South Australia;

(e) P Street, Suburb L in the State of South Australia;

(f) Q Street, Suburb O in the State of South Australia;

(g) R Street, Suburb S in the State of South Australia;

The Type T boat be valued by U Valuers at the joint expense of the husband and the wife.

The valuations be conducted as single expert valuations pursuant to Part 15.5 of the Family Law Rules.

It is further ordered that:

UPON NOTING within seven [7] days the parties to confirm with Chambers if there are any typographical errors in relation to street numbers of the properties that require amendment in paragraphs (1) and (2) by way of a joint signed letter sent to …@familycourt.gov.au.

The valuations referred to above in paragraphs (1) and (2) be conducted at the joint expense of the husband and the wife.

To the extent that such documentation has not already been provided to the wife, the husband do within twenty-eight (28) days of the date hereof (or as soon as such documentation is made available to him) provide formal discovery of the following documents:-

(a) the husband’s personal taxation returns for the financial years ended 30th June 2007 to 30th June 2013;

(b) the wife’s personal taxation returns for the financial years ended 30th June 2007 to 30th June 2013;

(c) taxation returns and Financial Statements for the years ended 30th June 2007 to 30th June 2013 of all companies, trusts and other trading entities in which the husband is involved including but not limited to the following:-

(i) Coopers & Co Pty Ltd;

(ii) Coopers Nominees Pty Ltd;

(iii) D Pty Ltd;

(iv) W Pty Ltd;

(v) Coopers & Co Pty Ltd Superannuation Fund;

(d) the husband’s current Will;

(e) all statements relating to all bank accounts operated by the husband in his sole name or jointly with any other person for the period 1st January 2011 to the current date;

(f) all documents relating to all shares or investments held by the husband in his sole name or jointly with any other person;

(g) all documents relating to any sale, transfer, assignment, leasing or mortgaging of the husband’s interests in the assets of the husband and the wife including but not limited to the following:-

(i) the real estate interest of the husband and the wife;

(ii) the husband’s interest in Coopers & Co Pty Ltd, Coopers Pty Ltd, D Pty Ltd, W Pty Ltd and Coopers & Co Pty Ltd Superannuation Fund.

Within fifty-six (56) days of the date of the order, the husband do pay or cause to be paid to the solicitors for the wife the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS [$150,000.00] pursuant to s 79 and s 80(1)(h) of the Family Law Act 1975 (Cth) with such sum to be characterised as a partial property settlement.

To the extent that such documents have not yet been completed or are not yet in the process of being completed, the husband do forthwith do all such acts and things as shall be necessary to provide instruction to the accountants of the husband and the wife or the accountants of the companies to complete taxation returns and Financial Statements of the parties personally and of the following companies and other entities:-

(a) the business and company of Coopers Pty Ltd;

(b) Coopers & Co Pty Ltd;

(d) X Pty Ltd;

(e) Coopers & Co Pty Ltd Superannuation Fund;

(f) any other company or entity operated by the husband;

for all financial years ended 30th June 2013;

To the extent that the value of any such items are not agreed between the husband and the wife, the husband and the wife do forthwith do all such acts and things as shall be necessary to obtain single expert valuations of furniture, personal property and motor vehicles of the husband and the wife to be undertaken by Y Valuers or such other valuer as agreed between the parties; with the costs of such valuation to be paid jointly by the husband and the wife;

10.

The parties’ have leave to apply for a Financial Conciliation Conference to occur by filing and serving an Application in a Case with a supporting affidavit with such application not to be made until the valuations referred to in paragraphs (1), (2), (3) and (9) of these orders are completed.

11.

Orders (5)(b) and (5)(c) as made by FM Cole (as he then was) on 9 May 2012 and order (4) made by FM Cole (as he then was) on 24 May 2012 do continue.

12.

To the extent that such leave is required, leave is granted to Mr J Coopers and to Z Pty Ltd to intervene in these proceedings.

13.

The wife’s Amended Response to Mr J Coopers’ Application in a Case filed 30 October 2013 and the husband’s Reply to the wife’s Response to Mr J Coopers’ Application in a Case filed 10 July 2013 do stand dismissed.

14.

The costs of Mr J Coopers’ Application in a Case filed 23 April 2013; the wife’s Amended Response to Mr J Coopers’ Application in a Case filed 30 October 2013 and the husband’s Reply to the wife’s Response to Mr J Coopers’ Application in a Case filed 10 July 2013 as well as the costs more generally of the proceedings thus far be reserved to the final hearing of the matter.

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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