Emsden and Emsden & Anor - [2018] FamCA 136

AMENDED PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004
FAMILY COURT OF AUSTRALIA

EMSDEN & EMSDEN AND ANOR

[2018] FamCA 136

FAMILY LAW – LITIGATION FUNDING - where final property orders were made in 2008 but which were now the subject of an application under s 79A-where the court had made injunctions 2 years ago restraining the husband from using the significant funds in trust-where the Tax Commissioner has intervened and wants to recover tax from the same funds-where the husband wants a partial release of funds from the restrained property-where the wife’s s 79A application was vague and the grounds unclear-where there is importance in considering the merits of her claim on the husband’s application where candour is critical in an ex parte application but so too, in a discharge or alteration of that order-where there were unanswered questions-application refused.

Family Law Act 1975 (Cth)

Bywater Investments Limited v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation [2016] HCA 45
Lane & Lane [2016] FamCAFC 53, (2016) FLC 93-699
Stanford v Stanford (2012) 247 CLR 108

Strahan & Strahan (Interim property orders) [2009] FamCAFC 166
Thomas A. Edison Ltd v. Bullock (1912) 15 CLR 679

APPLICANT:

Ms Emsden

RESPONDENT:

Mr Emsden

INTERVENOR:

Commissioner of Taxation for the Commonwealth of Australia

FILE NUMBER:

MLC

4374

2007

DATE DELIVERED:

7 March 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

2 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harriss

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INTERVENOR:

Ms Mavroudis

SOLICITOR FOR THE INTERVENOR:

ATP Review & Dispute Resolution

Orders

That paragraph 2 of the orders ought in the application in a case filed on 27 September 2017 by the Commissioner of Taxation for the Commonwealth of Australia is adjourned to the final hearing.
That save as to issues of costs, the interim orders sought by the husband by the response to an application in a case filed 29 November 2017 is dismissed.
That save as to issues of costs, paragraphs 1 to 9 of the response to an application in a case filed by the wife on 30 November 2017 is dismissed.
ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 6 September 2018 subject to any part heard case as a three day case.
The evidence in chief of all witnesses shall be given by affidavit.

TIMETABLE:

By 4 pm on 4 June 2018 the applicant wife file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought;
(b)all affidavits of evidence to be relied upon; and
(c)a financial statement.
The applicant wife pay all required court fees by 4 pm on 4 June 2018.
By 4 pm on 2 July 2018 the respondent husband file and serve upon all other parties:
(a) an amended response setting out with precision the orders to be…

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 Emsden and Emsden & Anor

Details

AGLC: Emsden and Emsden & Anor [2018] FamCA 136
Case: [2018] FamCA 136
Decision Date: 7 March 2018

CaseChat Overview and Summary

In the matter of *Emsden and Emsden & Anor*, Cronin J of the Family Court of Australia considered an application by the husband for the partial release of funds from a trust, which had been subject to injunctions restraining their use. These injunctions were in place following final property orders made in 2008, which the wife sought to alter or set aside under s 79A of the *Family Law Act 1975* (Cth). The Commissioner of Taxation had also intervened in the proceedings, seeking to recover tax from the same trust funds.

The court was required to determine the merits of the wife's s 79A application, given its vagueness and unclear grounds, in the context of the husband's application for a partial release of funds. The court also considered the implications of the Tax Commissioner's intervention and the general need for candour in applications seeking to discharge or alter existing orders.

Cronin J found that there were significant unanswered questions regarding the wife's application and the overall financial position. The court emphasised the importance of clarity and precision in such applications, particularly when seeking to vary or discharge orders, and noted that the husband's application for a partial release of funds was not sufficiently substantiated in the circumstances.

Consequently, the court dismissed the interim orders sought by the husband and the wife, save for issues of costs. All applications were adjourned for a final hearing, with a detailed timetable set for the filing of amended applications, evidence, and financial statements by the wife, husband, and the Commissioner of Taxation. The court also directed that evidence in chief be given by affidavit and outlined requirements for case outlines and subpoenas.

Orders

Orders of the court

That paragraph 2 of the orders ought in the application in a case filed on 27 September 2017 by the Commissioner of Taxation for the Commonwealth of Australia is adjourned to the final hearing.

That save as to issues of costs, the interim orders sought by the husband by the response to an application in a case filed 29 November 2017 is dismissed.

That save as to issues of costs, paragraphs 1 to 9 of the response to an application in a case filed by the wife on 30 November 2017 is dismissed.

ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 6 September 2018 subject to any part heard case as a three day case.

The evidence in chief of all witnesses shall be given by affidavit.

TIMETABLE:

By 4 pm on 4 June 2018 the applicant wife file and serve upon all other parties:

(a) an amended application setting out with precision the orders to be sought;

(b) all affidavits of evidence to be relied upon; and

The applicant wife pay all required court fees by 4 pm on 4 June 2018.

By 4 pm on 2 July 2018 the respondent husband file and serve upon all other parties:

(a) an amended response setting out with precision the orders to be sought;

(b) all affidavits of evidence to be relied upon; and

By 4 pm on 6 August 2018 the intervener, the Commissioner for Taxation for the Commonwealth of Australia, file and serve upon all other parties:

(a) an amended response setting out with precision the orders to be sought;

(b) all affidavits of evidence to be relied upon. and

10.

Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

SUBPOENAE

11.

All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

12.

By 4 pm on 4 September 2018 all parties file electronically to … a case outline in one document setting out:

(a) the outline of the issues in dispute;

(b) the list of the affidavits to be read;

(d) the list of objections to evidence requiring a ruling; and

Other than the intervener

(e) a list of assets and liabilities.

AND THE PARTIES SHOULD NOTE:

A. Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

B. Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

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

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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