FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Eccheli & Eccheli (No 3) [2025] FedCFamC1F 267
File number: SYC 1191 of 2024 Judgment of: SCHONELL J Date of judgment: 29 April 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Where the husband sought a stay of interim orders the subject of appeal requiring him to pay to the wife urgent spousal maintenance, payment of outgoings, sale of a property and comply with requests for disclosure – Where the husband contended his appeal would be rendered nugatory if the stay was not granted – Where the wife opposed the stay contending the husband has sufficient funds to pay the spousal maintenance sum as ordered and that an order for disclosure is not appealable where full and frank disclosure is a continuing obligation on parties to family law litigation – Consideration of the balance of convenience – Where the Court is not satisfied that the husband has discharged the onus that there is a proper basis to stay the orders – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 72(1) and 77
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12(2)
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685
Eccheli & Eccheli [2024] FedCFamC1F 234
Hall v Hall [2016] 257 CLR 490; [2016] HCA 23
House v The King [1936] 55 CLR 499; [1936] HCA 40
Kelly and Kelly (1981) FLC 91-007
Medlow & Medlow [2016] FLC 93-692; [2016] FamCAFC 34
Chapman and Chapman (1979) FLC 90-671
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Qin & Donato [2023] FedCFamC1A 223
Raymond & Raymond (2024) FLC 94-180; [2024] FedCFamC1A 45
Samaras & Allen [2021] FedCFamC1F 20
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 16 April 2025 Place: Sydney Solicitor for the Applicant: Ms Burrows, Zali Burrows Lawyers Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Watts McCray ORDERS
SYC 1191 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ECCHELI
Applicant
AND: MS ECCHELI
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
29 APRIL 2025
THE COURT ORDERS THAT:
1.The Amended Application in a Proceeding filed 14 April 2025 is 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS…
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- AGLC
- Eccheli & Eccheli (No 3) [2025] FedCFamC1F 267
- Case
- [2025] FedCFamC1F 267
- Decision Date
CaseChat Overview and Summary
The case of Eccheli & Eccheli (No 3) involves contested financial proceedings between Mr. Eccheli and Ms. Eccheli, which commenced with an Initiating Application by Mr. Eccheli on 21 February 2024. The matter was initially heard on 2 April 2024, where various interlocutory orders were sought. Judgment was delivered on 12 April 2024, resulting in several orders, including that the wife have exclusive use of the Suburb E property, the husband pay spousal maintenance and outgoings for the Suburb E property, and the husband have exclusive use of the F Street property pending its sale. The husband subsequently sought a stay of these interim orders, which were the subject of his appeal. The central legal issues before the court were whether the husband had demonstrated a proper basis to stay the orders and whether the balance of convenience favoured a stay. The husband argued that without a stay, his appeal would be rendered nugatory, while the wife contended that she had sufficient funds to meet her needs and that an order for disclosure was not appealable.
The court considered the balance of convenience and the husband's onus to demonstrate a proper basis for a stay. The husband's argument that his appeal would be nugatory if the stay was not granted was not sufficient to discharge the onus. Additionally, the court noted that the wife had sufficient funds available to her, and the order for disclosure was a continuing obligation in family law litigation. The court was not satisfied that the husband had discharged the onus that there was a proper basis to stay the orders. Consequently, the application for a stay was dismissed.
The court's reasoning was grounded in the need to balance the interests of both parties, ensuring that the wife's financial needs were met while also considering the husband's appeal process. The court determined that the husband had not demonstrated a compelling reason to grant a stay, and the balance of convenience did not favour a stay of the interim orders. As a result, the husband's application was dismissed, and the interim orders remained in effect.
The court considered the balance of convenience and the husband's onus to demonstrate a proper basis for a stay. The husband's argument that his appeal would be nugatory if the stay was not granted was not sufficient to discharge the onus. Additionally, the court noted that the wife had sufficient funds available to her, and the order for disclosure was a continuing obligation in family law litigation. The court was not satisfied that the husband had discharged the onus that there was a proper basis to stay the orders. Consequently, the application for a stay was dismissed.
The court's reasoning was grounded in the need to balance the interests of both parties, ensuring that the wife's financial needs were met while also considering the husband's appeal process. The court determined that the husband had not demonstrated a compelling reason to grant a stay, and the balance of convenience did not favour a stay of the interim orders. As a result, the husband's application was dismissed, and the interim orders remained in effect.
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
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
29 APRIL 2025
THE COURT ORDERS THAT:
1. The Amended Application in a Proceeding filed 14 April 2025 is 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
At the culmination of the hearing, directions were made for the husband to provide to chambers an updating Costs Notice document as to the estimated costs of the appeal by 4.00 pm the following day. The husband complied with the direction and regard has been had to that document. BACKGROUND The parties are engaged in contested financial proceedings that commenced with the filing of an Initiating Application by the husband on 21 February 2024. The matter came before me initially on 2 April 2024 where each party sought various interlocutory orders. By judgment delivered 12 April 2024 various orders were made, including orders to the following effect: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”). In my reasons for judgment delivered that day cited as Eccheli & Eccheli [2024] FedCFamC1F 234 I recorded the following:12The 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] 2019.13The parties separated on a final basis on 17 November 2023.14The 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.15It 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 2024.16The 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.3.2 Some 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/or 3.5.2. to meet the holding and further development costs of other presently owned properties (including properties owned via the [Q Group]); and/or 3.5.3. 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]... …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)17The broad contentions advanced by the husband do not seem to be the subject of challenge. Indeed the wife contended in her Case Outline, in slightly more catastrophic terms, the following: 71.The Husband has provided only sparse evidence about the financial position of his various enterprises conducted through third party trust vehicles or companies. As to the evidence he has provided, it very clearly demonstrates that these enterprises, being separate property developments or property assets held in special purpose trust structures, are insolvent or, if not, very likely to be. His evidence is that these enterprises cannot meet debts from their own income and financial resources. The commercial basis for his application for use of matrimonial funds is that very reason, yet he acknowledges that immediate and future liabilities will have to be managed carefully without providing any plan.72.Given the admitted insolvent or financially precarious position that these enterprises are in, the Court (and the Wife) would expect a full independent accounting and disclosure of the overall position of the assets and enterprises in his control. Yet he provides little to no independent evidence. There is no independent accounting evidence of the financial position of these enterprises or evidence of asset valuations (only his estimates). There is no clear and transparent evidence of unitholder and ownership structures.73.This places the Court (and the Wife) at risk of funds being distributed to him in circumstances where there is a prima facie serious insolvency risk with respect to the enterprises in his control. What his evidence plainly calls for is not the use of matrimonial funds to prop up third party enterprises that cannot meet their debts, but the appointment of an administrator to independently assess whether assets should be immediately sold to pay outstanding debts or whether any other form of imminent restructure should take place.(Case Outline of the wife filed 28 March 2024, p.18 –19) …19The husband, in his Financial Statement, asserts the net assets of the parties have a value of approximately $5,400,000. The state at which the proceedings currently are is such that there has been no independent verification of the various entities referred to in the parties’ respective applications, affidavits, and case outlines. …44The wife is suspicious and sceptical of the husbands’ actions. She contends that he failed to make adequate disclosure and points to various examples in her Case Outline, at paragraphs 39 to 42. She is also critical of how he has approached her financial need, namely by cutting off her access to money.45The husband has not assisted his case by seemingly changing his position and the need for relief during the course of the proceedings. In his first affidavit he proposed that the home occupied by the wife needed to be sold at the earliest possible opportunity in order to reduce debt (affidavit of the husband filed 21 February 2024, para 22.1), only to resile from that position at the hearing some six weeks later in circumstances where, on one view, the asserted financial position remained precarious. …49The wife’s case is not without its problems. I accept that the wife has a need for funds to ensure a level playing field in the litigation, particularly in light of her limited knowledge of the parties’ financial position, the conceded complexity of these proceedings, and the husband’s concession that the wife has a need for interim spousal maintenance noting there is no serious challenge to her asserted personal expenditure of approximately $3,000 per week (Financial Statement of the wife, p.11).…52The wife says she has a limited understanding of the intricacies of the parties’ financial affairs. Her Case Outline sets out:10.The Wife has an incomplete understanding of the Husband’s financial position and the overall matrimonial pool and requires the assistance of a forensic accountant. Her education came to an end in Year 10 and she is heavily reliant on legal and accounting advice: W [35]. She has concerns with the Husband’s past use of matrimonial assets for his various businesses and is also concerned with the application of funds for present uses: W [28] – [30]. She has concerns with the Husband’s disclosure which appear to be incomplete: W [34], [37]. She is unable to obtain that advice in the proceedings without litigation funding: W [36].(Case Outline of the wife filed 28 March 2024, p.5) …58I am satisfied that it is just and equitable to make an order that the husband receive the balance of the proceeds of the [H Street] property, after allowance for the money to be retained pursuant to the orders made in favour of the second respondent, and after allowance for the sum required to settle the purchase of the [F Street] property. This should provide the husband with a sum in excess of $950,000. That is a sum sufficient to meet the proportionate share, on a unit holding basis, of the [L Investment Firm] debt while leaving a surplus to meet other expenses. While the husband’s senior counsel submitted, from the bar table, that he was instructed there was an arrangement with the other unit holders that the husband meet all of the payment, that seems contrary to the husband’s sworn evidence. Even assuming that the husband’s earlier evidence was erroneous, it can be remedied by a subsequent application seeking to sell or realise other assets if necessary. As I observed earlier in these reasons, this matter has come on quickly and these orders are in the nature of stop-gap orders. The husband’s senior counsel foreshadowed that a further sale of assets may arise and, in light of the wife’s counsel’s submission, it would be difficult for her to oppose same.59I am not satisfied that it is in the interests of justice to make orders that the husband receive the proceeds of sale of the [Region K properties]. To do so would deprive the wife of access to her own capital, in circumstances where she needs funds. The husband’s orders concede the wife should receive $100,000 by way of interim costs, and his senior counsel properly conceded that the wife’s entitlement for interim funding could be higher. I note the wife’s costs memorandum makes a claim for a significantly larger sum, but that includes her estimated costs for the entirety of the proceedings which is unnecessary at this early stage. The wife’s Costs Memorandum asserts that she currently is indebted to her lawyers in the sum of $206,000. She has paid nothing toward her legal fees. The husband’s costs memorandum discloses that he has paid $109,000 to his legal fees, and there are further moneys held in trust. …62The wife can retain the proceeds of the [Region K properties]. As this is in the wife’s name, an order is unnecessary. The wife will simply be accessing her own funds. The Court’s intervention is limited to that necessary to make a just and equitable determination, and no further.63The wife seeks periodic spousal maintenance of $3,000 a week, and payment of the mortgage and utilities on the [Suburb E] property and the expenses for her car. There is no challenge to the wife’s expenses. The issue is whether the wife establishes an inability to support herself adequately. The husband’s concession as to the wife’s need and his offer to pay was conditional on him having access to the net sale proceeds of the [H Street] property and the [Region K properties]. He contends that, absent receipt of those moneys, he did not have sufficient funds to otherwise meet the expenses of the family.64I am not satisfied that the wife has established an inability to support herself adequately, such that she requires a weekly periodic payment of spousal maintenance or the payment of motor vehicle expenses, when regard is had to the capital sum she will have. After payment of her outstanding legal fees, the wife will have at least $320,000 available to her from the net sale proceeds of the first [Region K property], with the balance of approximately $550,000 from the other to come shortly. I am satisfied that, with such an amount, the wife will be able to support herself adequately, without the need for a periodic payment of $3,000 per week in spousal maintenance, or the husband having to meet the expenses for motor vehicles in her possession.65I am not, however, satisfied that she will also be able to meet the mortgage payments and utilities for the [Suburb E] property. In that respect I am satisfied that, notwithstanding retaining a capital sum, she will still have a need for spousal maintenance. I am satisfied that the husband will be able to meet those expenses from the capital sum he retains by these orders, the other assets he controls, and from his income.66On settlement of the purchase of [F Street] property, the husband will no longer need to pay rent, and, on its sale, the mortgage payments on the [Suburb E] property should reduce by about half. However, I expect he will need to resume paying rent.67The husband’s assumed moral obligation to pay the rent and expenses of his adult children does not supplant his legal obligation to support his wife, in the event she is unable to support herself. I will make an order that the husband pay the mortgage and outgoings on the [Suburb E] property. …76There appeared to be agreement between the parties that the wife should have exclusive occupation of the [Suburb E] property, and the husband have exclusive occupation of the [F Street] property. Accordingly, I will make orders to give effect to this agreement. There also seemed agreement about some general restraints regarding disposal of assets without notice, and I propose to make the order sought by the husband. There were no submissions about the return of the husband’s personal possessions, so I will craft an order that gives effect to what seems, from the competing positions, to be common ground.
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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