Eccheli & Eccheli

Case [2024] FedCFamC1F 234

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Eccheli & Eccheli [2024] FedCFamC1F 234

File number: SYC 1191 of 2024
Judgment of: SCHONELL J
Date of judgment: 12 April 2024
Catchwords:

FAMILY LAW – INTERIM PROPERTY – Where the parties each seek to exclusively retain net sale proceeds from properties – Where the husband asserts he will apply the proceeds toward family expenses and pressing financial needs – Where the husband’s financial affairs are less than transparent – Where there has been no independent valuation of the assets – Where the denial of interim funds to the husband may increase the likelihood of insolvency – Where the wife requires funds to pay her expenses –  Orders made releasing net sale proceeds to both parties.

FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – Where the wife seeks maintenance – Where the wife was the primary carer and homemaker during the marriage – Where after separation the husband initially paid, but ultimately withdrew, a monthly allowance to the wife – Where, given the interim settlement received, the wife did not establish an inability to support herself such that she required a periodic payment.

FAMILY LAW – ADULT CHILD MAINTENANCE – Where the wife seeks that the husband pay maintenance for the parties’ adult child – Where the parties are at issue about whether the child is disabled – Where the Court is unable to resolve the conflict in interim proceedings– Where the wife’s evidence did not establish that that the child is disabled and requires maintenance – Application dismissed.   
Legislation:

Family Law Act 1975 (Cth), ss 66H, 66J, 66L(1), 75(2), 79, 80(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 8.15(3)

Cases cited:

Atwill and Atwill (1981) FLC 91-107

Bevan & Bevan (1995) FLC 92-600

Bing & Bing (2007) FLC 93-318

In the marriage of Tuck M.L. & Tuck, J.M. (1981) FLC 92-021

Medlow & Medlow (2016) FLC 93-692

Mitchell and Mitchell (1995) FLC 92-601

Re: AM (Adult Child Maintenance) (2006) FLC 93-262

Redman and Redman (1987) FLC 91-805

Rowan and Rowan (1977) FLC 90-310

Stacy and Stacy (1977) FLC 90-324

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Wenz v Archer (2008) 40 Fam LR 212

Wilson and Wilson (1989) FLC 92-033
Division: Division 1 First Instance
Number of paragraphs: 77
Date of hearing: 2 April 2024
Place: Sydney
Counsel for the Applicant: Mr Cox SC
Solicitor for the Applicant: Broun Abrahams Burreket
Counsel for the First Respondent: Mr Hollo
Solicitor for the First Respondent: Taylor Rose
Counsel for the Second Respondent: Ms Wilson
Solicitor for the Second Respondent: Swaab Attorneys

ORDERS

SYC 1191 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ECCHELI

Applicant
AND:

MS ECCHELI

First Respondent

MS C ECCHELI

Second Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

12 APRIL 2024

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1.The wife is granted exclusive use and occupation as between the husband and wife of D Street, Suburb…

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AGLC
Eccheli & Eccheli [2024] FedCFamC1F 234
Case
[2024] FedCFamC1F 234
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with an interim property settlement dispute between Mr Eccheli and Ms Eccheli. Both parties sought exclusive retention of the net sale proceeds from certain properties, while the husband claimed he needed the funds to cover pressing financial needs and family expenses. The wife, on the other hand, required funds for her own expenses. The court also considered the wife's applications for spousal and adult child maintenance. The wife argued she was the primary carer and homemaker during the marriage, and she required maintenance after separation. The husband initially paid, but later withdrew, a monthly allowance. However, the wife did not prove an inability to support herself. Regarding adult child maintenance, the wife claimed the husband should pay for their adult child, who she alleged was disabled. However, the court could not resolve this issue in interim proceedings, and the wife's evidence did not establish that the child was disabled and required maintenance.

The court examined the legal issues concerning the interim property settlement, spousal maintenance, and adult child maintenance. In terms of the interim property settlement, the court had to decide whether to release the net sale proceeds to both parties, considering the husband's assertion that he would use the proceeds to address family expenses and pressing financial needs, as well as the wife's requirement for funds to pay her expenses. The court also had to determine whether the wife was entitled to spousal maintenance, taking into account her role as the primary carer and homemaker during the marriage and the husband's initial payment of a monthly allowance. Finally, the court had to decide whether the husband should pay maintenance for the adult child, considering the conflicting evidence regarding the child's disability.

The court found that, given the complexity of the parties' finances and the lack of transparency in the husband's financial affairs, it was necessary to release the net sale proceeds to both parties to prevent immediate cash flow issues and potential insolvency. The court also dismissed the wife's application for spousal maintenance, as she had not established an inability to support herself. Regarding the adult child maintenance, the court was unable to resolve the conflict in interim proceedings and dismissed the wife's application. The court ordered that the wife be granted exclusive use of the Suburb E property, and the husband pay the home loan, utilities, and outgoings for that property. The husband was granted exclusive use of the F Street property, pending its sale. The parties were restrained from dealing with their assets without notice to the other party. The wife was required to make certain items available for collection by the husband.

The court's final orders were that the wife would have exclusive use of the Suburb E property, with the husband responsible for paying the home loan, utilities, and outgoings for that property. The husband would have exclusive use of the F Street property, pending its sale. The parties were restrained from dealing with their assets without providing notice to the other party. The wife was required to make certain items available for collection by the husband. The husband's application for spousal and adult child maintenance was dismissed.

Orders

Orders of the court

SYC 1191 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ECCHELI

Applicant

AND:

MS ECCHELI

First Respondent

MS C ECCHELI

Second Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

12 APRIL 2024

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The wife is granted exclusive use and occupation as between the husband and wife of D Street, Suburb E, New South Wales (“the Suburb E property”).

2. The husband pay, or cause to be paid, by way of spousal maintenance the monthly repayments of principal and interest pursuant to the Suburb E property home loan, and the utilities and outgoings in respect of the Suburb E property.

3. The husband, pending its sale, is granted exclusive use and occupation as between the husband and the wife of F Street, Suburb G, Queensland (“the F Street property”).

4. The parties shall do all acts and things and sign all documents necessary to authorise Swaab Attorneys to pay to the husband the balance of the proceeds of sale of H Street, Suburb J, Queensland (“the H Street property”), after deduction for the moneys to be paid to complete the purchase of the F Street Property pursuant to the Orders made on 4 April 2024, and after allowance for the moneys to be retained to meet the expenses of the second respondent pursuant to the Orders made on 2 April 2024.

5. Other than in accordance with these Orders and save in the ordinary course of business, the husband and wife be, and hereby are, restrained from selling, further encumbering, transferring, or in any other way dealing with or diluting their interests in any assets in the husband or wife's name, the joint names of the parties, or in the name of any commercial entity or trust in which either party is a director or shareholder, without providing the other party less than 28 days’ notice in writing of that party’s intention to do so.

6. Within 14 days of these Orders, and upon the husband providing notice in writing of no less than two business days, the wife make the following items available for collection by the husband from the office of the wife’s solicitor:

(a) The husband’s Will;

(b) Any Articles of Association, Trust Deeds or Deeds of Amendment, loan documents, contracts, registration papers and insurance documents in relation to motor vehicles;

(c) The husband’s jewellery; and

(d) The husband’s laptop and hard drives.

7. The husband’s Application in a Proceeding filed 18 March 2024, the interlocutory orders sought by the wife in her Response filed 22 March 2024, and the wife’s Response to an Application in a Proceeding filed 28 March 2024 be dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Each party’s affidavits contained a number of annexures and, in the case of the husband, annexures running to hundreds of pages. Rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) provides that annexures and/or exhibits are not accepted as evidence unless they are separately tendered. With the exception of one document tendered by the husband, neither party sought to tender any of the annexures to the affidavits. The wife’s counsel referred specifically to two medical reports annexed to the wife’s affidavit. In those circumstances I have not, for the purposes of my determination, had regard to any of the annexures other than the two medical reports referred to above.BACKGROUND FACTS The parties initially commenced cohabitation in 1990, married in 1992, and have three children who are now all over the age of 18 years. In late 2015, the parties separated. They divorced in 2017, resumed cohabitation in mid-2018, and remarried in 2019. The parties separated on a final basis on 17 November 2023. The husband is a professional. It would appear that the parties arranged their marital relationship on the basis that the husband took charge, and managed all aspects, of their finances. It seems not in dispute the wife has been the primary homemaker and carer of the three children, and is financially dependent upon the husband. In her Financial Statement she contends that throughout the relationship, she was provided with funds by the husband. The wife says he would transfer her approximately $10,000 a month, and provide her access to a credit card. She contends that these payments continued after separation but were unilaterally ceased by the husband on 3 January 2024. The parties’ finances are complicated. There are numerous companies and trusts that hold a substantial part of their wealth. In the husband’s initial affidavit, he asserted the following:3.1. I am a [professional]. I acquire various residential and commercial premises either personally or via a group of entities collectively referred to as the [Q Group] with several other investors. For asset protection and estate planning purposes, the Wife and I have also purchased various properties in my sole name, in the Wife's sole name or jointly as tenants in common as between myself, or the Wife, and our adult children or either of them.3.2Some of the properties that we have purchased in the past are tenanted and yield rental income; however, most properties are purchased for development, such that we are required to meet the holding and development costs until the property can be sold for a profit before we receive any benefit.3.3.None of the properties in which either myself or the Wife have an interest in our personal capacities are currently producing any rental income. None of the commercial premises in which I have an interest via the [Q Group] are currently deriving profit that is available for distribution to the respective unit holders. Many of these properties are similarly in a state of development.3.4.I receive a regular salary for the management of the [Q Group], paid to me on a monthly basis in the amount of $22,916, or $5,288 per week (after tax). This is my only source of regular income.3.5. The personal expenses that I meet for the benefit of myself, the Wife and our adult children are in excess of $35,000 per week. Ordinarily, I supplement my regular income with the available net proceeds of sale from a property, if and when the same becomes available, which are in turn applied:3.5.1. toward further investment opportunities; and/or3.5.2. to meet the holding and further development costs of other presently owned properties (including properties owned via the [Q Group]); and/or3.5.3. toward the personal expenses of the Wife, our adult children and myself.…3.8.I accept that I managed our families’ financial affairs throughout mine and the Wife’s marriage and that there is a level of complexity to our commercial interests in the [Q Group]...3.9.…absent the Wife's agreement, which has not been forthcoming, or urgent Orders being made to facilitate the application of the available proceeds from the sale of the Villas in the manner sought in my Initiating Application, not only will the Wife and I will be unable to preserve our current financial position, it will be significantly and adversely affected. We are now at an immediate risk of:3.9.1. defaulting on various home loan repayments, including the home loan secured over the former matrimonial home, at which the Wife and [Mr P] continue to live;3.9.2. defaulting on regular, direct debit payments of certain expenses such as motor vehicle finance and insurance payments;3.9.3. being unable to provide the level of financial support that the Wife and I have made available to our adult children by way of substantial contributions toward their rental and living costs; and3.9.4. being unable to pay immediately due and payable business expenses, without which the subdivision of various lots at a development site will be unable to proceed, giving the purchasers of those lots the ability to terminate contracts for sale that have been entered into prior to the dates of anticipated settlement in [early] 2024 and [mid] 2024.…54.A key feature of the way that I have managed our family finances is selling current assets in order to realise capital to fund future development projects and meet family expenses. Then once those development projects are complete, I sell them, retain part of the proceeds for family expenses and reinvest the remainder in future development projects, and so the cycle continues. This has been the case since well prior to mine and the Wife's recent separation.55.The cycle has enabled our family to accumulate wealth and enjoy an affluent lifestyle, but it has always depended upon the Wife and the children complying with requests I have made to purchase or otherwise dispose of assets in their names to maintain our cash flow. If the cycle stops, as is now occurring, we risk defaulting on future obligations and have no liquidity to meet our business and family expenses. Whilst I accept that the Wife and I will be required to separate our financial interests in various assets consequent upon the breakdown of our relationship and on a final basis, we are now facing immediate cash flow issues. Unless funds are released to me in order to meet our business and personal expenses and trade out of our current financial position, I consider it highly probable that my business interests in the [Q Group] and mine and the Wife's personal interests will be adversely affected.(Affidavit of the husband filed 21 February 2024 p.1-4, p.14)

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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