IMBARDELLI & IMBARDELLI - [2018] FamCA 352

FAMILY COURT OF AUSTRALIA

IMBARDELLI & IMBARDELLI

[2018] FamCA 352

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – where it is conceded the wife has a need- whether the husband has the capacity to pay – where the husband has access to property and financial resources in addition to income.

Family Law Act 1975 (Cth)

Hall & Hall [2016] HCA 23
Maroney & Maroney [2009] FamCAFC 45

APPLICANT:

Ms Imbardelli

RESPONDENT:

Mr Imbardelli

FILE NUMBER:

MLC

8876

2009

DATE DELIVERED:

22 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

19, 20, 23 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dellidis

SOLICITOR FOR THE APPLICANT:

AMT Legal

COUNSEL FOR THE RESPONDENT:

Mr Williams

SOLICITOR FOR THE RESPONDENT:

Pearsons Lawyers

Order Until Further Order

The husband pay to the wife for her maintenance the sum of $1,000 per week to be payable monthly in advance in the sum of $4,333.33 by direct debit to an account nominated by the wife the first payment to be made on 29 May 2018 and monthly thereafter.
The wife’s application for interim spousal maintenance be otherwise dismissed and removed from the list of cases awaiting hearing.

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 Imbardelli & Imbardelli 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 review 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 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8876 of 2009

Ms Imbardelli

Applicant

And

Mr Imbardelli

Respondent

REASONS FOR JUDGMENT

Background

The substantive application in this case is the wife’s Amended Initiating Application filed 1 September 2017 in which she seeks, inter alia, to set aside final property orders made by consent on 30 June 2010 by Federal Magistrate Hughes pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) and parenting orders. In that application the wife also sought interim orders that the husband pay her periodic spousal maintenance in the sum of $5,000 per month.
On 11 December 2017 I made orders, inter alia, requiring the wife to vacate the property at B Street, Suburb C (“B Street”) by 15 January 2018 and ordered that the husband pay the wife the sum of $5,000 before 15 December 2017 by way of lump sum spousal maintenance to assist her to relocate from the property. I otherwise adjourned the further hearing of the wife’s spousal maintenance claim to the Senior Registrar’s Duty List on 18 January 2018.
When the matter came on for hearing in the Senior Registrar’s Duty List on 18 January 2018, counsel for…

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: IMBARDELLI & IMBARDELLI [2018] FamCA 352
Case: [2018] FamCA 352
Decision Date: 22 May 2018

CaseChat Overview and Summary

The parties to this proceeding were the Imbardelli family (the Imbardellis) and the Imbardelli family trust (the Trust). The dispute concerned the proper construction of a deed of trust and the extent of the Imbardellis' beneficial interests in the Trust. The matter came before Macmillan J of the Supreme Court of Western Australia.

The central legal issue before the Court was to determine the meaning and effect of clause 10 of the deed of trust, which stipulated that the trustees were to hold the trust property for the benefit of the Imbardellis in such shares and proportions as the trustees should from time to time determine. The Court was required to ascertain whether this clause conferred an absolute discretion on the trustees to vary the beneficiaries' interests or whether it merely allowed for the apportionment of existing interests.

Macmillan J reasoned that the language of clause 10, particularly the phrase "in such shares and proportions as the trustees shall from time to time determine," indicated a power to allocate and reallocate the beneficial interests among the named beneficiaries. His Honour held that this conferred a discretionary power on the trustees, not merely a power to apportion fixed interests. The Court applied principles of trust law concerning the construction of discretionary trusts, emphasising the importance of the express wording of the trust instrument in defining the scope of trustees' powers.

The Court made declarations regarding the construction of the deed of trust, finding that the trustees possessed a discretionary power to determine the shares and proportions of the beneficiaries.

Orders