Davids and Davids - [2017] FamCA 662

FAMILY COURT OF AUSTRALIA

DAVIDS & DAVIDS

[2017] FamCA 662

FAMILY LAW – PROPERTY – Interim orders – Partial property settlement – Where husband seeks partial property settlement of $411,500 – Where husband fails to establish compelling circumstances for $411,500 partial property settlement – Where husband seeks litigation funding of $100,000 – Where husband alleges wife has not made full and frank disclosure – Where disclosure by wife is adequate – Where both parties seek that the husband receive $100,000 – Where husband disputes wife should receive partial property settlement of $50,000 – Where there are appropriate circumstances for wife to receive partial property settlement – Application granted.

Family Law Act 1975 (Cth) ss 79, 80

Felice & Felice [2011] FamCA 162 Gabel & Yardley (2008) FLC 93-386 Medlow & Medlow (2016) FLC 93-692 Stanford & Stanford (2012) 247 CLR 108 Strahan & Strahan(interim property orders) (2011) FLC 93-466
APPLICANT:	Mr Davids

RESPONDENT:

Ms Davids

FILE NUMBER:

ADC

2298

2016

DATE DELIVERED:

30 August 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cocks

SOLICITOR FOR THE APPLICANT:

Lempriere Abbott McLeod

COUNSEL FOR THE RESPONDENT:

Ms Lewis

SOLICITOR FOR THE RESPONDENT:

Jacqui Ion Lawyers Pty Ltd

Orders

That the husband’s Application in a Case filed 20 January 2017 be dismissed.
That the husband obtain by way of interim property settlement the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) and that the husband and wife do all things required for the said sum to be withdrawn from the joint ANZ Account (…57) and be paid to the trust account of Lempriere Abbott McLeod for and on behalf of the husband.
That the wife obtain by way of interim property settlement the sum of FIFTY THOUSAND DOLLARS ($50,000) and that the husband and wife do all things required for the said sum to be withdrawn from the said joint ANZ Account and paid to the trust account of Jacqui Ion Lawyers for and on behalf of the wife.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davids & Davids has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2298 of 2016

Mr Davids

Applicant

And

Ms Davids

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Initiating Application filed 23 June 2016, Mr Davids (“the husband”) seeks final orders for settlement of property in the following terms:-
(1)That the whole of the funds held in ANZ Bank BSB … A/c…

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 Davids and Davids

Details

AGLC: Davids and Davids [2017] FamCA 662
Case: [2017] FamCA 662
Decision Date: 30 August 2017

CaseChat Overview and Summary

In *Davids and Davids*, Berman J of the Federal Circuit Court of Australia considered an application by the husband for interim property settlement. The wife also sought interim property settlement.

The primary legal issue before the court was the appropriate quantum and distribution of interim property settlement funds to the parties pending final resolution of their property dispute.

Berman J determined that both parties were entitled to an interim property settlement from the joint ANZ account. The husband was ordered to receive $100,000, and the wife was ordered to receive $50,000. The court directed both parties to take all necessary steps to facilitate the withdrawal and payment of these sums to their respective legal representatives' trust accounts. The husband's application in a case filed on 20 January 2017 was dismissed.

Orders

Orders of the court

That the husband’s Application in a Case filed 20 January 2017 be dismissed.

That the husband obtain by way of interim property settlement the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) and that the husband and wife do all things required for the said sum to be withdrawn from the joint ANZ Account (…57) and be paid to the trust account of Lempriere Abbott McLeod for and on behalf of the husband.

That the wife obtain by way of interim property settlement the sum of FIFTY THOUSAND DOLLARS ($50,000) and that the husband and wife do all things required for the said sum to be withdrawn from the said joint ANZ Account and paid to the trust account of Jacqui Ion Lawyers for and on behalf of the wife.

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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