Grattan & Grattan & Anor (No 2) - [2014] FamCA 622

FAMILY COURT OF AUSTRALIA

GRATTAN & GRATTAN AND ANOR (NO 2)

[2014] FamCA 622

FAMILY LAW – Injunction – holding order.

Family Law Act 1975 (Cth)

Mullen v De Bry [2006] FamCA 1380, (2006) FLC 93-293

APPLICANT:

Ms Grattan

1^ST RESPONDENT:

Mr Grattan

2^ND RESPONDENT:

B Pty Ltd

FILE NUMBER:

MLC

4259

2013

DATE DELIVERED:

10 July 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

10 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Williams

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE 1^ST RESPONDENT:

Mr L. Glick QC with Mr Strum

SOLICITOR FOR THE 1^ST RESPONDENT:

Kainelaw Australian Lawyers

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Efron

SOLICITOR FOR THE 2^ND RESPONDENT:

Efron & Associates

Orders

That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.
That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.
That until the return date referred to below, the husband, by himself, his servants and agents, is restrained from selling, transferring, encumbering (or further encumbering), disposing of or otherwise dealing with:
(a)              Any real property;
(b)              Any motor vehicle;
(c)              Any aeroplane; and
(d)              Any business,
without giving the wife 7 days prior written notice through her lawyers.
That all extant interim applications are otherwise adjourned to 10.00am on 14 August 2014.
That all parties have liberty to apply on short notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grattan & Grattan and Anor ( No 2) 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

Ms Grattan

Applicant

And

Mr Grattan

1^st Respondent

And

B PTY LTD

2^nd Respondent

REASONS FOR JUDGMENT

This is a very discrete issue in which there is no dispute that an injunction was granted by the court on 30 September 2013 in relation to the husband’s activities associated with the assets of the parties or either of them, including, no doubt, various corporate entities and trusts with which they have some control or connection. That injunction restrained the husband from disposing of those assets except in the ordinary course of business.
The wife’s position today, which is clearly set out in her application filed on 25 June, and supported by the affidavit material that she filed, is that she now wants to vary that order to specifically identify real property, any motor vehicles, any aeroplanes, and otherwise all businesses on the basis that she be given seven days notice prior to any sale which would be in the ordinary course of business.
She supports that by paragraph 108 of the affidavit, which does not directly relate to the…

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 & Grattan & Anor (No 2)

Details

AGLC: Grattan & Grattan & Anor (No 2) [2014] FamCA 622
Case: [2014] FamCA 622
Decision Date: 10 July 2014

CaseChat Overview and Summary

In the matter of *Grattan & Grattan & Anor (No 2)*, heard before Cronin J, the dispute concerned orders to be made between the parties, identified as the husband and wife. The specific nature of the underlying dispute is not detailed, but the proceedings involved the wife's legal representatives and the husband's legal representatives, with the court ultimately issuing orders by consent.

The court was required to determine the terms of consent orders to be made between the parties, and to establish interim measures to preserve assets pending further proceedings. Specifically, the court needed to consider the terms of proposed orders agreed upon by the parties, and to implement a restraint on the husband's ability to deal with certain assets.

Cronin J's reasoning, as evidenced by the orders made, was to give effect to the parties' agreement. The court ordered that the minutes of proposed orders, marked as Exhibit "A", be sealed and attached to the court file, with the solicitor for the wife tasked with engrossing and delivering these minutes. Furthermore, to protect the wife's interests, the husband was restrained, until a specified return date, from selling, transferring, encumbering, disposing of, or otherwise dealing with any real property, motor vehicle, aeroplane, or business, without providing the wife seven days' prior written notice. All extant interim applications were adjourned to a later date, and all parties were granted liberty to apply on short notice.

Orders

Orders of the court

That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

That until the return date referred to below, the husband, by himself, his servants and agents, is restrained from selling, transferring, encumbering (or further encumbering), disposing of or otherwise dealing with:

(a) Any real property;

(b) Any motor vehicle;

(d) Any business,

without giving the wife 7 days prior written notice through her lawyers.

That all extant interim applications are otherwise adjourned to 10.00am on 14 August 2014.

That all parties have liberty to apply on short notice.

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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