HAMLYN & MANSFIELD - [2019] FamCA 842

FAMILY COURT OF AUSTRALIA

HAMLYN & MANSFIELD

[2019] FamCA 842

FAMILY LAW – PROPERTY – Interim distribution – Where the proceeds of sale of the former matrimonial home are held in a controlled monies account (“the account”) – Where the husband seeks to obtain funds from the account to discharge various debts – Where the wife seeks that the husband’s application be dismissed – Where the former matrimonial home was in the sole name of the husband – Where the financial contributions of the husband were greater than those of the wife – Where the husband has no other funds available to meet his debts and living expenses – Orders made – Husband to receive a payment from the account.

FAMILY LAW – INJUNCTION – Where the wife seeks to be reinstated as a director of a company of which the husband is the sole director and shareholder – Where the wife’s removal was due to the parties’ inability to co-operate and due to the husband’s contention that a third party with whom the wife was in communication may be hostile to the parties’ interests – Where the latter point was largely conceded by the wife – Where there is no evidence that the husband had acted against the parties’ interests in his role as sole director – Application dismissed.

Family Law Act 1975 (Cth) ss 79, 80, 114

Harris & Harris (1993) 16 Fam LR 579
In the Marriage of Waugh (2000) FLC 93-052
Mullen & De Bry (2006) FLC 93-293
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (2009) 42 Fam LR 203

APPLICANT:

Ms Hamlyn

RESPONDENT:

Mr Mansfield

FILE NUMBER:

SYC

8581

2017

DATE DELIVERED:

15 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

11 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley

Orders

By way of partial property settlement, the parties shall forthwith do all acts and things necessary to cause $400,000 to be paid to the husband from the proceeds of sale of the Suburb A property currently held in the Controlled Monies Account by B Company.
The application of the wife for orders in terms of a Minute of Order lodged on 8 November 2019 is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mansfield & Hamlyn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to rYw to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02

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.

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Details

AGLC: HAMLYN & MANSFIELD [2019] FamCA 842
Case: [2019] FamCA 842
Decision Date: 15 November 2019

CaseChat Overview and Summary

In the Family Court of Australia, Loughnan J considered applications by both the husband and wife concerning the distribution of assets following their separation. The husband sought access to funds from the sale of the former matrimonial home, held in a controlled monies account, to discharge debts and cover living expenses. The wife opposed this application and sought her reinstatement as a director of a company solely directed and owned by the husband.

The court was required to determine whether to grant the husband's request for an interim distribution of funds from the proceeds of sale, and whether to grant the wife's application for an injunction to be reinstated as a company director. The wife's removal as director was attributed to the parties' inability to cooperate and the husband's concerns about a third party with whom the wife was communicating.

Regarding the property settlement, Loughnan J reasoned that while the husband's financial contributions were greater, the husband had no other available funds to meet his debts and living expenses. The court considered the husband's need for immediate financial relief and ordered that $400,000 be paid to the husband from the proceeds of sale. In relation to the wife's application for reinstatement as a director, the court found no evidence that the husband had acted against the parties' interests in his sole directorship. The wife had largely conceded the husband's concerns regarding the third party, and the court concluded that the removal was primarily due to the parties' lack of cooperation.

Consequently, the court ordered the payment of $400,000 to the husband by way of partial property settlement. The wife's application for orders to be reinstated as a director of the company was dismissed.

Orders

Orders of the court

By way of partial property settlement, the parties shall forthwith do all acts and things necessary to cause $400,000 to be paid to the husband from the proceeds of sale of the Suburb A property currently held in the Controlled Monies Account by B Company.

The application of the wife for orders in terms of a Minute of Order lodged on 8 November 2019 is dismissed.

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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