Grattan and Grattan and Anor - [2014] FamCA 271

FAMILY COURT OF AUSTRALIA

GRATTAN & GRATTAN AND ANOR

[2014] FamCA 271

FAMILY LAW – Partial property – Order sought against third party – Jurisdiction and power considered – No power to make order – Wife also seeks husband pay single expert costs with adjustment at trial – Basis for making such an order considered – Order made.

Family Law Act 1975 (Cth)

Kyriakos v Kyriakos [2013] FamCAFC 22

APPLICANT:

Mr Grattan

RESPONDENT:

Ms Grattan

INTERVENOR:

B Pty Ltd

FILE NUMBER:

MLC

4259

2013

DATE DELIVERED:

30 April 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

By way of written submissions

SUBMISSIONS RECEIVED FROM

THE APPLICANT:

Dr Ingleby

THE RESPONDENT:	Mr Glick SC with Mr Strum
THE INTERVENOR:	Mr Dickson SC

Orders

That the application by the wife that B Pty Ltd be jointly and severally liable with the husband for the payment of $500,000 by way of partial property settlement is dismissed.
That the husband pay the costs of the single expert property valuer (S) at first instance and an adjustment be made in the final property settlement in favour of the husband for one half of such obligations out of the wife’s entitlement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grattan & Grattan 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 MELBOURNE

FILE NUMBER: MLC 4259 of 2013

Mr Grattan

Applicant

And

Ms Grattan

Respondent

And

B Pty Ltd

2^nd Respondent

REASONS FOR JUDGMENT

On 23 December 2013, the wife sought an order that the husband and B Pty Ltd pay to her a further sum of $500,000 (that is, in addition to $500,000 that was ordered in her favour on 30 September 2013) “as and by way of further partial property settlement”.
The order made on 30 September 2013 was a consent order in which it was said:
1.That [B Pty Ltd] in its own right and in its capacity as trustee of the (Unit Trust) be joined as a party to these proceedings.
…
3.That the husband and [B Pty Ltd] jointly and severally pay or cause to be paid to the wife the sum $500,000 as and by way of partial property settlement.
B Pty Ltd was joined that day as a party.
The power of the Court to make the order now sought is disputed by the husband and B Pty Ltd.
Section 39 of the Family Law Act 1975 (Cth) (“the Act”) provides that a matrimonial cause may be instituted under the Act in the Family Court. The relevant requirements for that proceeding (s 39(4)) have been met.
Relevantly, matrimonial cause means:
proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them…
Section 79 of the Act empowers the Court to make such order as it considers appropriate in the property…

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 Grattan and Grattan and Anor

Details

AGLC: Grattan and Grattan and Anor [2014] FamCA 271
Case: [2014] FamCA 271
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Ms Grattan (the wife) seeking a further partial property settlement of $500,000 against Mr Grattan (the husband) and B Pty Ltd. This followed an earlier consent order where the husband and B Pty Ltd were jointly and severally liable to pay the wife $500,000. The wife's current application sought to make B Pty Ltd jointly and severally liable for an additional $500,000. The husband and B Pty Ltd disputed the Court's jurisdiction and power to make such an order against the company.

The primary legal issue before the Court was whether it possessed the jurisdiction and power under the *Family Law Act 1975* (Cth) to make a property settlement order against a third party, B Pty Ltd, in its own right. The Court also considered a secondary application by the wife for the husband to pay the costs of a single expert valuer at first instance, with an adjustment to be made in the final property settlement.

Justice Cronin determined that the Court lacked the power to make the property settlement order against B Pty Ltd. While acknowledging that matrimonial causes can be instituted under the Act concerning the property of the parties to a marriage, and that s 79 empowers the Court to alter parties' interests in property, the Court found that there was no power to make a property settlement order *per se* against B Pty Ltd. The Court noted that the wife's application invoked s 79, and that the evidence did not establish that the property of B Pty Ltd was property of the parties to the marriage at that stage. The Court referred to *Kyriakos v Kyriakos* as a reminder of the necessity to identify the relevant head of power, and concluded that based on the material before it and the reliance on s 79, no power existed to make the order against B Pty Ltd.

Regarding the costs of the single expert, the Court found that while Rule 15.47 of the *Family Law Rules 2004* generally makes parties equally liable for such costs, the Court has the power under Rule 1.12 to order otherwise. Given the husband's greater control over finances and stronger financial position, the Court ordered that the husband pay the expert's costs at first instance, with an adjustment to be made in the final property settlement to account for this.

Orders