Duggan and Duggan - [2019] FCCA 1310

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUGGAN & DUGGAN

[2019] FCCA 1310

Catchwords:
FAMILY LAW – Property – interim application for property adjustment – injunctive relief to restrain disbursal of funds.

Legislation:

Family Law Act 1975, ss.114, 79

Cases cited:

M v DB (2006) 36 Fam LR 454; [2006] FamCA 1380

Sieling & Sieling (1979) FLC 90-627

Stowe & Stowe (1981) FLC 91-027

Waugh & Waugh [2000] FamCA 1183

Applicant:

MS DUGGAN

Respondent:

MR DUGGAN

File Number:

NCC 245 of 2019

Judgment of:

Judge Costigan

Hearing date:

29 March 2019

Date of Last Submission:

29 March 2019

Delivered at:

Newcastle

Delivered on:

17 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Bateman

Solicitors for the Applicant:

Reid Lawyers

Counsel for the Respondent:

Ms Ticehurst

Solicitors for the Respondent:

Aubrey Brown Partners

ORDERS

Order 1(f) of the Orders made on 18 March 2019 is discharged.
The matter is adjourned to 24 May 2019 at 11.30am for a directions hearing in the Federal Circuit Court sittings at Newcastle.
Liberty granted for the Solicitor for the Applicant and Respondent to appear by telephone link on 24 May 2019.

IT IS NOTED that the parties can take part in the Court telephone link by:

a. Dialling the free call number 1800 132 423
b. When prompted dial in the meeting room number 953 817 6497#.
c. Waiting on the line until the court dials in as “the moderator”.
d. Please ensure you have dialled in several minutes prior to the listing time.

IT IS NOTED that publication of this judgment under the pseudonym Duggan & Duggan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 245 of 2019

MS DUGGAN

Applicant

And

MR DUGGAN

Respondent

REASONS FOR JUDGMENT

Introduction

These are interim property proceedings between Ms Duggan (‘the Wife’) and Mr Duggan (‘the Husband’).
The single issue for immediate determination is whether an order should be made by which the Husband should be restrained from reducing his AMP bank account below a specified amount of $100,000.
The Wife says that there is a genuine risk that the Husband will dissipate the monies standing in that account which form part of the asset pool in relation to which she is seeking orders under s.79 of the Family Law Act1975.
The Husband opposes any order that would, in effect, freeze his AMP account.

Background

The Husband is 62 years of age and the Wife is 55 years of age.
The parties commenced cohabitation in … 2010 and were married on … 2012.
There are no children of the relationship but the Husband has eight children from prior marriages and the Wife has two children from a prior marriage. When the parties commenced their relationship, three of the Husband’s children and two of the Wife’s children, lived with them.
At the outset of the relationship the Husband says that he owned the former matrimonial home at Street A, Town B. In … 2010 the…

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 Duggan and Duggan

Details

AGLC: Duggan and Duggan [2019] FCCA 1310
Case: [2019] FCCA 1310
Decision Date: 17 May 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Costigan considered an application by the applicant, Ms. Duggan, and the respondent, Mr. Duggan, concerning orders made on 18 March 2019. The precise nature of the dispute is not detailed, but the court's decision focused on discharging one of those prior orders.

The central legal issue before the court was whether Order 1(f) of the 18 March 2019 Orders should be discharged. This required the court to assess the circumstances and the appropriateness of maintaining that specific order.

Judge Costigan discharged Order 1(f) of the previous orders. The court then adjourned the matter for a directions hearing to be held on 24 May 2019 at 11:30 am in the Federal Circuit Court sittings at Newcastle. Liberty was granted for the solicitors representing both the applicant and the respondent to appear at this hearing via telephone link.

Orders

Orders of the court

Order 1(f) of the Orders made on 18 March 2019 is discharged.

The matter is adjourned to 24 May 2019 at 11.30am for a directions hearing in the Federal Circuit Court sittings at Newcastle.

Liberty granted for the Solicitor for the Applicant and Respondent to appear by telephone link on 24 May 2019.

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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