Eastman and Eastman & Anor - [2015] FamCA 808

FAMILY COURT OF AUSTRALIA

EASTMAN & EASTMAN AND ANOR

[2015] FamCA 808

FAMILY LAW – Interim proceedings – Spouse maintenance – Where the wife seeks lump sum spouse maintenance and periodic weekly payments from the husband – Where the husband primarily resides in Country F – Where the parties were married for over 50 years – Where the wife has established a need and the expenses she claims are not challenged – Where the husband has capacity to pay – Orders made as sought by the wife.

FAMILY LAW – Injunction – Where the wife seeks to restrain the sale of a property owned by a company (controlled by the husband and parties’ sons) in which she holds shares – Where the wife asserts that should the sale proceed she will receive nothing from the sale – Where the court is satisfied that the husband has a current intention to sell the property – Where the wife has satisfied the test in Mullen & De Bry (2006) FLC 93-293 –Where the wife has given an undertaking as to damages – Where it is found that the imposition of an interim injunction is necessary to preserve the property – Order made as sought by the wife

Family Law Act 1975 (Cth)

Bevan and Bevan (1995) FLC 92-600
Mullen & DeBry (2006) FLC 93-293
Oates and Crest (2008) FLC 93-365; 216 FLR 469
Redman and Redman (1987) FLC 91-805
Waugh and Waugh (2000) FLC 93-052

Williamson and Williamson (1978) FLC 90-505

APPLICANT:

Ms Eastman

RESPONDENT:

Mr Eastman

2^nd RESPONDENT:

B Pty Ltd

FILE NUMBER:

SYC

3628

2015

DATE DELIVERED:

30 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

21 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bridges

SOLICITOR FOR THE APPLICANT:

Barraket Stanton Lawyers

SOLICITOR FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE INTERVENOR:

No appearance

Orders

The respondent husband and B Pty Ltd and each of them be restrained from selling, charging, mortgaging or otherwise dealing with or disposing of, or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, the property situate at and known as C Street, Suburb D, being the whole of the land in Folio Identifiers …, …, … and ....
I note the wife’s undertaking as to damages.
Both the husband and B Pty Ltd can apply to discharge order 1 by giving 14 days notice to the court and the wife.
The husband pay to the wife lump sum spousal maintenance in the sum of $16,258.
The husband pay to the wife periodic spousal maintenance in the sum of $800 per week, the first payment to be within seven (7) days.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3682 of…

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: [2015] FamCA 808
Decision Date: 30 September 2015

CaseChat Overview and Summary

In *Eastman and Eastman & Anor*, the wife sought interim spousal maintenance and an injunction to restrain the sale of a property. The husband, who primarily resided overseas, was the respondent, and B Pty Ltd, a company controlled by the husband and their sons in which the wife held shares, was the second respondent. The marriage had lasted over 50 years.

The court was required to determine whether to grant interim spousal maintenance, considering the wife's established need and the husband's capacity to pay. Additionally, the court had to assess whether to grant an interim injunction to prevent the sale of the property, given the wife's assertion that she would receive nothing from the sale and her satisfaction of the relevant legal test for such an injunction, including providing an undertaking as to damages.

Watts J found that the wife had established her need for spousal maintenance and that the husband had the capacity to pay. The court was also satisfied that the husband intended to sell the property and that the wife had met the criteria for an interim injunction, having provided an undertaking as to damages. The imposition of the injunction was deemed necessary to preserve the property.

Consequently, the court ordered that the husband and B Pty Ltd be restrained from selling, charging, mortgaging, or otherwise dealing with the specified property. The husband was also ordered to pay the wife a lump sum of $16,258 for spousal maintenance and periodic payments of $800 per week, with the first payment due within seven days. The court noted the wife's undertaking as to damages and provided for the possibility of discharging the injunction upon 14 days' notice.

Orders

Orders of the court

The respondent husband and B Pty Ltd and each of them be restrained from selling, charging, mortgaging or otherwise dealing with or disposing of, or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, the property situate at and known as C Street, Suburb D, being the whole of the land in Folio Identifiers …, …, … and ....

I note the wife’s undertaking as to damages.

Both the husband and B Pty Ltd can apply to discharge order 1 by giving 14 days notice to the court and the wife.

The husband pay to the wife lump sum spousal maintenance in the sum of $16,258.

The husband pay to the wife periodic spousal maintenance in the sum of $800 per week, the first payment to be within seven (7) days.

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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