Jacobsen & Jacobsen - [2023] FedCFamC1F 669

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jacobsen & Jacobsen [2023] FedCFamC1F 669

File number: SYC 3701 of 2018

Judgment of: BRASCH J

Date of judgment: 11 August 2023

Catchwords:
FAMILY LAW – INTERIM PROPERTY – Where both parties ought interim distributions of funds – Where trial listed in eight weeks – Orders made for sale of shares and equal distribution of the proceeds.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties are equal shareholders in the family business –Where wife seeks a range of orders for access to documents dating back to 2015 – Where some of the wife’s orders are far too wide – Where some orders jeopardise the trial – Where some orders are beyond power – Where some orders are trial issues – Orders made for source documents to be provided to the wife from here on – Orders made dispensing with r 7.25(1) and r 7.26(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Legislation:
Corporations Act2001 (Cth)

Family Law Act 1975 (Cth) ss 79, 114, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.25, 7.25(1), 7.26, 7.26(1), 7.28

Cases cited:
Black and Kellner (1992) FLC 92-287; (1992) FLC 92-287

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166

Weir and Weir (1993) FLC 92-338

Division: Division 1 First Instance

Number of paragraphs: 133

Date of hearing: 7 August 2023

Place: Sydney

Counsel for the Applicant: Ms Gillies SC

Solicitor for the Applicant: Lander & Rogers

Counsel for the Respondent: Mr B Jones SC

Solicitor for the Respondent: Barkus Doolan Winning
ORDERS

SYC 3701 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS JACOBSEN

Applicant

AND:
MR JACOBSEN

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

11 AUGUST 2023

THE COURT ORDERS:
1.The husband and wife forthwith do all acts and things necessary to sell the shares held in their joint names in Company M ("the Company M Shares").
2.That upon the sale of the Company M Shares, the husband and wife shall do all acts and things necessary and sign all documents necessary to disperse the net proceeds of sale equally between them and shall each be responsible for any capital gains tax arising with respect to the sale of those shares incurred in their individual names.
3.By close of business on the first business day of each week, the husband, in his capacity as director of H Pty Ltd, shall cause an email to be sent to the wife with a list of transactions and journal entries ready for the wife’s review, along with the source documents supporting each transaction.
4.The need for compliance with the timeframe as required in r 7.25(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is dispensed with.
5.The need for compliance with the timeframes as required in r 7.26(1) of the Federal Circuit and Family Court…

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 Jacobsen & Jacobsen

Details

AGLC: Jacobsen & Jacobsen [2023] FedCFamC1F 669
Case: [2023] FedCFamC1F 669
Decision Date

CaseChat Overview and Summary

The matter of Jacobsen & Jacobsen involved the wife, born in 1976, and the husband, born in 1975. The parties had been in a de facto relationship since 1999 or 2000 and were married in 2001. They had two children, X born in 2006 and Y born in 2009. The date of separation was disputed, with the husband claiming it was on 7 September 2016 and the wife contending it was on 28 August 2017. The wife sought disclosure of financial information related to the family business, H Pty Ltd, of which the husband was the sole director and the parties were equal shareholders. The husband had previously been ordered to provide certain financial information to the wife, but the wife sought further disclosure. The court had to determine whether the wife was entitled to additional disclosure beyond what had already been ordered.

The primary legal issue before the court was whether the wife was entitled to further financial disclosure from the husband, beyond the orders already made by the court. The wife argued that she was entitled to more comprehensive disclosure to properly assess the financial position of the family business and to make informed decisions regarding property settlement. The husband contended that he had already provided the court-ordered disclosure and that any further disclosure would be an unreasonable invasion of his privacy and potentially harmful to the business. The court had to balance the wife's need for information against the husband's privacy and business interests.

The court considered the wife's need for information to make informed decisions about the property settlement and the husband's privacy and business interests. The court found that the wife had not shown that the additional disclosure sought was necessary for the proper conduct of the property settlement proceedings. The court held that the orders already made were sufficient for the wife to make informed decisions and that any further disclosure would not be in the interests of justice. The wife's application for further disclosure was dismissed.

The court made no further orders for additional disclosure. The existing orders for the husband to provide certain financial information to the wife remained in force. The court's decision emphasised the importance of balancing the parties' interests and ensuring that any disclosure orders are proportionate to the needs of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

On 22 November 2022, I made an order requiring the parties to contact chambers (copying the other and ICL) if either party forms the view that the trial dates are in jeopardy. That order remains in force. Background The applicant wife was born in 1976, and the husband was born in 1975. The parties commenced cohabitation in 1999 or 2000 and were married in 2001. The parties dispute the date of separation: 7 September 2016 for the husband; or, 28 August 2017 for the wife. There are two children of the marriage, X born 2006 and Y born 2009. In late 2007, the family business, H Pty Ltd was registered. The husband is the sole director of H Pty Ltd. The husband and wife are equal shareholders, each holding one ordinary share. Disclosure, at least with respect to H Pty Ltd, is a much disputed topic in this matter. The husband commenced proceedings on 13 June 2018. On 6 September 2019, Justice Rees made the following relevant orders:3. That the Husband do all things necessary to provide the Wife with, and maintain at all times online and hard copy viewing access to the following accounts held by [H Pty Ltd]:3.1 the [H Pty Ltd] Westpac Account; 3.2 the [H Pty Ltd] [J Bank] Account; and3.3Any other bank account in the name of [H Pty Ltd] and/ or through which [H Pty Ltd] transacts.AND the wife is restrained from operating on any account of [H Pty Ltd] or conducting any transaction on any account of [H Pty Ltd]. 4.That no later than fourteen (14) days after the conclusion of each calendar month, the Husband shall provide the following material to the Wife in relation to [H Pty Ltd]:4.1MYOB (or any other software used by [H Pty Ltd]) accounts for the past month;4.2 Directors and shareholders loan account statements/ledgers; AND the Wife shall thereafter be at liberty to request that the Husband provide her with source documents relevant to the transactions identified in the accounts and ledgers provided and the Husband shall provide such material within seven (7) days of receiving any such request from the Wife.5.That no later than twenty-one (21) days after the conclusion of each financial year, the Husband shall provide the following material to the Wife in relation to [H Pty Ltd]:5.1 management accounts for [H Pty Ltd] for the past financial year; and 5.2commission statements for [H Pty Ltd] clearly delineating recurring revenue and one-off revenue for the past financial year.(Emphasis added) Justice Loughnan made the following orders on 15 July 2020 (the "July 2020 orders"):(9)By way of enforcement of Order 4 of the Orders made on 6 September 2019 and in addition to that order, within seven days of the date of these Orders:(a)the husband shall set up online view access for the wife to the [H Pty Ltd] MYOB accounts including, but not limited to, all transactions and reports, banking, cards, inventory, payroll, purchases, sales and the Journal Security Audit Report;(b)the husband is to provide to the wife’s solicitors instructions and a password to allow the wife to access the MYOB accounts; and(c)the husband shall be restrained from changing the access privileges or password for the wife’s access to the MYOB accounts until the resolution of this matter on a final basis.(10)Within seven days of the date of these Orders, the husband shall provide to the wife by email a current loan account ledger which covers the period from the date of commencement of the shareholder loans until the current date and includes the following: (a) all transactions for the above period; (b) a date for each transaction; (c) the amount allocated to each shareholder; (d) the relevant credit card or bank account; and (e) a description of the transaction.(11)Within 14 days after the conclusion of each calendar month, the husband shall provide to the wife by email an updated loan account ledger as described above.(Emphasis added)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 3701 of 2018
Judgment of:	BRASCH J
Date of judgment:	11 August 2023
Catchwords:	FAMILY LAW – INTERIM PROPERTY – Where both parties ought interim distributions of funds – Where trial listed in eight weeks – Orders made for sale of shares and equal distribution of the proceeds. FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties are equal shareholders in the family business –Where wife seeks a range of orders for access to documents dating back to 2015 – Where some of the wife’s orders are far too wide – Where some orders jeopardise the trial – Where some orders are beyond power – Where some orders are trial issues – Orders made for source documents to be provided to the wife from here on – Orders made dispensing with r 7.25(1) and r 7.26(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Legislation:	Corporations Act2001 (Cth) Family Law Act 1975 (Cth) ss 79, 114, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.25, 7.25(1), 7.26, 7.26(1), 7.28
Cases cited:	Black and Kellner (1992) FLC 92-287; (1992) FLC 92-287 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166 Weir and Weir (1993) FLC 92-338
Division:	Division 1 First Instance
Number of paragraphs:	133
Date of hearing:	7 August 2023
Place:	Sydney
Counsel for the Applicant:	Ms Gillies SC
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondent:	Mr B Jones SC
Solicitor for the Respondent:	Barkus Doolan Winning

SYC 3701 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS JACOBSEN Applicant
AND:	MR JACOBSEN Respondent

ORDER MADE BY:	BRASCH J
DATE OF ORDER:	11 AUGUST 2023