HAWKINS & HAWKINS - [2014] FamCA 1065

FAMILY COURT OF AUSTRALIA

HAWKINS & HAWKINS

[2014] FamCA 1065

FAMILY LAW – PROPERTY – Interim – Where the wife seeks an order that with effect from 21 December 2012 she be paid 50 per cent of all monies received directly or indirectly by the husband or various entities owned or controlled by him – Where the wife seeks an order for the husband to pay her weekly interim spousal maintenance in the sum of $1,397 – Where the wife seeks interim relief or injunctions to have the husband restore funds to superannuation which she asserts have wrongfully been withdrawn – Where proceedings have been on foot in this Court for some 7 years – Where the husband and wife hold a one third interest in certain business entities – Where the wife instituted proceedings in the Supreme Court against the other interest holders in the business claiming that she had been subjected to oppressive conduct and sought orders for the winding up of the corporate entities – Where the wife’s Supreme Court claim was entirely unsuccessful and she was ordered to pay the costs of all nine defendants/respondents to it of the whole of those proceedings on an indemnity basis – Where following separation the wife, without reference to the husband, increased the parties’ mortgage loan account by $620,000, increasing the debit balance to $700,000 – Where there are issues as to how much of the $700,000 loan the wife has spent entirely for her own use, without any benefit to the husband, mainly on legal costs for her ill-fated and apparently misconceived Supreme Court proceedings

Corporations Act 2001 (Cth)

Family Law Act 1975 (Cth)

Bevan & Bevan (1995) FLC 92-600
Farr & Farr (1976) FLC 90-133
M & M (2006) 36 Fam LR 97
Nutting & Nutting (1978) FLC 90-410
Page & Page (1981) FLC 91-025
Polletti & Polletti (1990) 15 Fam LR 794
R v Dovey; Ex parte Ross (1979) 141 CLR 526
Saxena & Saxena (2006) FLC 93-268
Sieling & Sieling (1979) FLC 90-627
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Wilson & Wilson (1989) FLC 92-033
Wray & Wray (1981) FLC 91-059

APPLICANT:

Ms Hawkins

RESPONDENT:

Mr Hawkins

FILE NUMBER:

BRC

6561

2007

DATE DELIVERED:

2 December 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATES:

24 March 2014; 28 April 2014; and 19 June 2014

REPRESENTATION

FOR THE APPLICANT:

Self Represented

SOLICITOR FOR THE RESPONDENT:

Wrightway Legal

Orders

It is ordered that:

The Wife’s application for an order that, with effect from 21 December 2012, 50 per cent of monies received directly or indirectly by the Husband, E Pty Ltd and The Hawkins Family Trust from the F Trust and the G Trust, be paid to the Wife is dismissed.
The Wife’s application for an order that the Husband pay spousal maintenance to her in the amount of $1,397 per week is dismissed.

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

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: HAWKINS & HAWKINS [2014] FamCA 1065
Case: [2014] FamCA 1065
Decision Date: 2 December 2014

CaseChat Overview and Summary

In *Hawkins & Hawkins*, Kent J of the Federal Circuit Court of Australia considered applications made by the Wife concerning financial matters arising from the parties' separation. The Wife sought orders for a significant portion of monies received by the Husband, a company, and a family trust from two other trusts to be paid to her, and also sought an order for weekly spousal maintenance.

The primary legal issues before the court were whether the Wife was entitled to a share of the funds flowing from the F Trust and the G Trust, and whether the Husband should be ordered to pay spousal maintenance. These issues required the court to consider the nature of the interests held by the parties and their associated entities in the trusts, and to assess the Wife's financial needs and the Husband's capacity to pay spousal maintenance.

Kent J dismissed both of the Wife's applications. The decision indicates that the court was not satisfied that the Wife had established a legal or equitable right to the funds in question, nor that the circumstances warranted an order for spousal maintenance. The Wife's claims were therefore unsuccessful.

Orders

Orders of the court

It is ordered that:

The Wife’s application for an order that, with effect from 21 December 2012, 50 per cent of monies received directly or indirectly by the Husband, E Pty Ltd and The Hawkins Family Trust from the F Trust and the G Trust, be paid to the Wife is dismissed.

The Wife’s application for an order that the Husband pay spousal maintenance to her in the amount of $1,397 per week is 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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