Dunn & Dunn (No 6) - [2022] FedCFamC1F 929

Federal Circuit and Family Court of Australia
(DIVISION 1)
Dunn & Dunn (No 6) [2022] FedCFamC1F 929

File number(s): ADC 5380 of 2020

Judgment of: BERMAN J

Date of judgment: 28 November 2022

Catchwords:
FAMILY LAW – SPOUSAL MAINTENANCE – INTERIM – Application to suspend or vary interim spousal maintenance order – Where the husband is currently in arrears – Consideration of s 75(3) and the parties’ financial circumstances – Orders.

FAMILY LAW – PROPERTY – Where the wife seeks Orders for the sale of livestock in accordance with Orders made in February 2022 – Where the livestock have not been disposed of as anticipated by the Order – where the husband’s position is that he no longer has an interest in the livestock – Where the previous Orders are varied to enable the wife to facilitate the sale of the livestock – Orders.

FAMILY LAW – PROPERTY – Where the husband concedes that his business is an asset of the relationship – Where the wife seeks Orders to appoint a receiver to the husband’s business –Where the husband opposes the appointment of a receiver – Where the husband has unilaterally appointed a liquidator on a voluntary basis – Where the wife contends that the liquidator is not independent – Consideration of s 80(1)(k) – Where the liquidator appeared before the primary judge in respect of his own family law matter – Where the husband was involved in the liquidator’s family law matter before the primary judge – Consideration of recusal – Orders.

Legislation:
Corporations Act (2001) (Cth) s 420

Family Law Act 1975 (Cth) ss 75(3), s 80(1)(k)

Federal Court Act 1976 (Cth) s 57

Cases cited:
Re Club Superstores Australia Pty Ltd (in liq) (1993) 10 ACSR 730

R v Ross-Jones & Anor;Ex Parte Beaumont (1979) 141 CLR 504

Division: Division 1 First Instance

Number of paragraphs: 88

Date of hearing: 10 November 2022

Place: Adelaide

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: The Respondent appeared in person
ORDERS

ADC 5380 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DUNN

Wife

AND:
MR DUNN

Husband

order made by:

BERMAN J

DATE OF ORDER:

28 november 2022

THE COURT ORDERS:
1.That the Application of the wife to appoint a receiver to M Pty Ltd (in Liquidation) (“the company”), be listed for hearing to determine whether the Honourable Justice Berman should recuse himself and if so, whether until determination, the husband should be required, by way of injunction, to instruct Mr HH and Mr JJ to suspend the winding up of the company.
2.That the spousal maintenance order made 17 March 2021, be varied such that the husband pay to the wife the sum of NINE HUNDRED AND THIRTY DOLLARS ($930) per week for a period of fifty two (52) weeks, payable by lump sum, of FORTY EIGHT THOUSAND THREE HUNDRED AND SIXTY DOLLARS $48,360.
3.That paragraph 7 of orders made 19 September 2022 be discharged.
4.That for 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 Dunn & Dunn (No 6)

Details

AGLC: Dunn & Dunn (No 6) [2022] FedCFamC1F 929
Case: [2022] FedCFamC1F 929
Decision Date

CaseChat Overview and Summary

In Dunn & Dunn (No 6), the Federal Circuit and Family Court of Australia was called upon to consider interim spousal maintenance and property distribution in the context of an ongoing dispute between Ms Dunn and Mr Dunn. The legal issues before the court included the variation or discharge of an existing spousal maintenance order, the sale of livestock, and the appointment of a receiver for a company that the husband had placed into voluntary liquidation. The court also had to consider whether the primary judge should recuse himself due to potential conflicts of interest.

The court found that the husband was currently in arrears of spousal maintenance and that the wife had a capacity for employment on a part-time basis. Therefore, the court varied the spousal maintenance order to require the husband to pay $930 per week for a period of 52 weeks. The court also varied orders for the sale of livestock, allowing the wife to instruct a sale by auction or private contract. Regarding the appointment of a receiver, the court found that the liquidators appointed by the husband were not independent and that it would not be appropriate for the primary judge to further consider the application. If the liquidation of the company remained a significant area of contention between the parties, the court would consider whether it should recuse itself.

The final orders included varying the spousal maintenance order, authorizing the sale of livestock and the Suburb J property, and directing that the proceeds of the sale be used to settle property and spousal maintenance. The court also ordered that the application to appoint a receiver be listed for hearing to determine whether the primary judge should recuse himself and, if so, whether the husband should be required to suspend the winding up of the company until determination.

Orders