Finlay and Finlay - [2018] FCCA 117

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINLAY & FINLAY

[2018] FCCA 117

Catchwords:
FAMILY LAW – Interim property orders – not just and equitable to dissipate the only asset of known value.

Legislation:

Family Law Act 1975, Pt VIII

Cases cited:

Harris & Harris (1993) FLC 92-378

Strahan & Strahan [2009] FamCAFC 166

HMT & FHL [2006] FamCA 206

Applicant:

MS FINLAY

Respondent:

MR FINLAY

File Number:

NCC 3061 of 2015

Judgment of:

Judge Middleton

Hearing date:

14 September 2017

Date of Last Submission:

14 September 2017

Delivered at:

Newcastle

Delivered on:

6 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr Rugendyke

Solicitors for the Applicant:

East Coast Family Lawyers

Counsel for the Respondent:

Mr Bithrey

Solicitors for the Respondent:

Powe & White Lawyers

ORDERS

The Application in a Case filed 25 August 2017 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Finlay & Finlay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3061 of 2015

MS FINLAY

Applicant

And

MR FINLAY

Respondent

REASONS FOR JUDGMENT

Background

This matter concerns an Application in a Case where in the Applicant Husband seeks orders to utilise funds currently held in the trust account of his lawyers, pursuant to an order made on 24 March 2016.
The Respondent Wife commenced the substantive proceedings by filing an Initiating Application on 25 November 2015.
The husband filed his Response to the Initiating Application on 10 February 2016.
Shortly after filing the wife became aware that the husband had sold shares that (business omitted) ((business omitted)) held in (business omitted) and the (omitted) Unit Trust / (omitted) Property Investment (NSW) Pty Ltd. (business omitted) was the corporate entity that the parties have an interest in.
The wife filed an Application in a Case seeking orders relating to (business omitted).
On 24 March 2016 I made the following relevant orders:
a)The husband is restrained and an injunction is granted restraining him from:
i)Do any acts or things to affect the sale or transfer or other disposal or alienation of his shares in the companies (business omitted) ACN (omitted), (omitted) Property Investments (NSW) Pty Ltd ACN (omitted) or (business omitted) ABN (omitted) or any of them without the prior written consent from the wife;
ii)Charging, mortgaging or otherwise granting security over his shares in the companies (business omitted) ACN (omitted), (omitted) Property Investments (NSW) Pty Ltd ACN (omitted) or (business omitted) ABN (omitted) or any of them without the prior written consent from the wife
b)Within 24 hours of today's orders, the Respondent Husband is to transfer moneys totalling $75,000 into the trust account of his solicitor Powe & White Family Lawyers.
At the hearing of the Application in a Case the Husband disclosed that he had already sold his shares in the relevant companies and received $75,000 for that sale. The sale was made unilaterally and without any communication to the wife.
Since the making of the orders which were…

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 Finlay and Finlay

Details

AGLC: Finlay and Finlay [2018] FCCA 117
Case: [2018] FCCA 117
Decision Date: 6 February 2018

CaseChat Overview and Summary

In the matter of *Finlay and Finlay*, heard by Judge Middleton, the dispute concerned an Application in a Case filed on 25 August 2017. The specific nature of the dispute between the parties, Finlay and Finlay, is not detailed in the provided text, beyond the fact that an application was made to the court.

The central legal issue before the court was whether the Application in a Case filed on 25 August 2017 should be dismissed. The court was required to consider the merits of the application and determine if it met the necessary legal threshold for further proceedings.

Judge Middleton's reasoning and the legal principles applied are not elaborated upon in the provided text. However, the outcome indicates that the court found sufficient grounds to dismiss the application.

Consequently, the court ordered that the Application in a Case filed 25 August 2017 be dismissed.

Orders

Orders of the court

The Application in a Case filed 25 August 2017 be dismissed.

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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