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Harding & Callaghan

Harding & Callaghan

Case [2023] FedCFamC1F 91 22 February 2023

Balance of Convenience

Asset Preservation

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Harding & Callaghan [2023] FedCFamC1F 91

File number(s): SYC 6218 of 2020

Judgment of: HARPER J

Date of judgment: 22 February 2023

Catchwords: FAMILY LAW – PROPERTY – Injunctions – Property pool of up to $69 million – Husband seeks injunctions to prevent wife dealing with asset management and bank accounts without providing notice – Where wife holds majority of control over assets – Arguments that wife has undertaken transactions without providing notice – Allegations of non-disclosure not able to be determined at interlocutory stage – Where evidence of dissipation is not sufficient to justify injunctions – Proceedings listed for trial in five weeks – Balance of convenience does not favour the grant of injunctions sought – Application dismissed.

Legislation: Family Law Act1975 (Cth) ss 90SM, 114

Cases cited:
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1

Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499; [1988] FCA 127

Jessica Estates v Lennard (2007) 13 BPR 25,297; [2007] NSWSC 1434

MP Water Pty Ltd v Veolia Water Australia Pty Ltd [2021] NSWSC 582

Mullen and De Bry (2006) FLC 93-293; [2006] FamCA 1380

Sarto & Sarto [2022] FedCFamC1A 16

Tsiang & Wu (2019) FLC 93-911; [2019] FamCAFC 128

Warner-Lambert Co LCC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59

Division: Division 1 First Instance

Number of paragraphs: 20

Date of hearing: 8 February 2023

Place: Sydney

Counsel for the Applicant: Mr Kearney SC

Solicitor for the Applicant: Pearson Emerson

Counsel for the Respondent: Mr Richardson SC

Solicitor for the Respondent: Barkus Doolan Winning
ORDERS

SYC 6218 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HARDING

Applicant

AND:
MS CALLAGHAN

Respondent

order made by:

HARPER J

DATE OF ORDER:

22 February 2023

THE COURT NOTES THAT:
A.Orders sought in the Application in a Proceeding filed by the Applicant Husband (“the husband”) on 2 February 2023 relating to the appointment of adversarial expert evidence, disclosure, and instructions to a single expert were made by consent on 8 February 2023.

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the husband on 2 February 2023 be otherwise dismissed.
2.All questions of costs are reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses…

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 Harding & Callaghan

Details

AGLC: Harding & Callaghan [2023] FedCFamC1F 91
Case: [2023] FedCFamC1F 91
Decision Date

CaseChat Overview and Summary

In Harding & Callaghan, the husband sought various injunctions in relation to the wife's handling of assets within their substantial property pool. The court was required to determine whether the husband had established a sufficient likelihood of success on the merits of his case and whether the balance of convenience favoured the grant of the injunctions. The husband sought prohibitory injunctions to prevent the wife from dealing with certain assets without notice, as well as mandatory injunctions to compel the wife to restore viewing access to certain bank accounts. The wife resisted the application for injunctive relief.

The court considered the evidence and arguments presented by both parties. It found that, while there was some evidence of possible dissipation of assets, it was not sufficient to justify the grant of injunctive relief at this stage. The court also noted that the proximity of the final hearing meant that any alteration to the existing balance sheet would be readily taken into account at trial. The court further held that the husband's mandatory injunctions were not "restorative" in the sense explained in Jessica Estates, as they did not relate to any undisputed wrong committed by the wife, but rather were designed as an aid to disclosure. The court ultimately declined to make the injunctions sought by the husband.

In light of the above, the court dismissed the husband's application for injunctive relief. The court noted that all questions of costs were reserved. The court's decision was based on the evidence presented and the principles applicable to the grant of interlocutory injunctions in family law matters. The parties' dispute over the property interests will be determined at the final hearing, which is scheduled to commence on 27 March 2023.

Orders