Jess and Jess (No. 2) - [2007] FamCA 1015

FAMILY COURT OF AUSTRALIA

JESS & JESS (NO. 2)

[2007] FamCA 1015

FAMILY LAW – PROPERTY – partial property settlement – concurrent Supreme Court proceedings

Family Law Act, 1975 (Cth) s 79
Harris v Harris (1993) FLC 92-378

HUSBAND:

MR JESS

WIFE:

MRS JESS

FILE NUMBER:

MLF

3444

2006

DATE DELIVERED:

7 August 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

7 August, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND:

Mr B.R.Geddes QC, with Mr P.N. Crofts

SOLICITOR FOR THE HUSBAND:

Carew Counsel Solicitors

COUNSEL FOR THE RESPONDENT:

Mr A.J. Kirkham QC, with Mr G.R. Dickson

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

That by way of partial property settlement the husband pay to the wife or at her direction a sum sufficient to discharge the obligations of T Pty. Ltd. and L Pty. Ltd. pursuant to paragraph (16) of the orders made by the Honourable Justice Gillard in Supreme Court of Victoria proceedings in January, 2007 (“the Supreme Court proceedings”) and such sum be paid:
(a)on or before 30 August, 2007; or
(b)in the event the defendant in the Supreme Court proceedings (being Y Corporation Pty. Ltd.) is prepared to extend the period in which the plaintiffs in those proceedings are to make payment pursuant to paragraph (16) of the orders of 25 January 2007, then on such later date as is agreed between the husband and the defendant in the Supreme Court proceedings, PROVIDED THAT if the period is extended the husband advise the solicitors for the wife of that fact and keep them advised of any subsequent extension.

That on or before 6 December, 2007 and by way of partial property settlement the husband pay to the wife or to the respective creditors listed in this paragraph, such sum as is required to discharge the liability on the following credit cards (being credits cards referred to in paragraph 12 of the affidavit of the wife filed herein on 5 April, 2007) :
(a)Visa card;
(b)National Australia Bank Visa card;
(c)Citibank Mastercard; and
(d)L Pty. Ltd. business American Express card;
and upon payment of the said credit card liabilities the wife forthwith do all acts and things and sign all documents required to cancel the said credit cards, and for the purpose of this paragraph “the liability” means such sums as are owing on the date of discharge less any sum charged by the wife to a credit card account after 2 August, 2007.

That the subpoena filed by the wife on 23 March, 2007 addressed to the National Australia Bank be adjourned to 9:30 am. on 14 August, 2007.

That the hearing date of 20 August, 2007 be vacated.

That the amended form 2 filed by the wife on 27 July, 2007 be adjourned to 10:00 am. on 19 October, 2007 and the following directions shall apply to that application :
(a)the husband file any response and affidavit or affidavits in support of such response on or before 24 August, 2007;
(b)the wife file…

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 Jess and Jess (No. 2)

Details

AGLC: Jess and Jess (No. 2) [2007] FamCA 1015
Case: [2007] FamCA 1015
Decision Date: 7 August 2007

CaseChat Overview and Summary

In *Jess and Jess (No. 2)*, Brown J of the Family Court of Australia made orders concerning property settlement and procedural directions in a family law matter. The dispute involved the husband being ordered to discharge certain financial obligations of companies T Pty. Ltd. and L Pty. Ltd. by a specified date, or a later date if an extension was granted by Y Corporation Pty. Ltd. The husband was also ordered to pay outstanding liabilities on several credit cards held by the wife by a further specified date, with the definition of "liability" excluding amounts charged after a certain date.

The court was required to determine the terms of the property settlement relating to corporate debts and credit card liabilities, as well as to set procedural directions for further applications and the joinder of additional respondents. Specifically, the court addressed the wife's application to join Y Pty. Ltd., Y Corporation Pty. Ltd., and Mr Jess (jnr) as respondents, and the timelines for filing responses and affidavits from all parties, including the proposed respondents. The court also considered the wife's request to rely on an adversarial expert's affidavit.

Brown J's reasoning involved making specific orders for the partial property settlement, including the timing and nature of the husband's financial obligations. The court also established a detailed timetable for the filing of documents and submissions in relation to the wife's amended application and the joinder of new parties, ensuring that all parties had an opportunity to respond and present their case. The court granted leave for the wife to rely on the expert affidavit and dismissed earlier applications by both parties. The court noted that the matter reasonably required the attendance of counsel, including senior counsel.

Orders

Orders of the court

That by way of partial property settlement the husband pay to the wife or at her direction a sum sufficient to discharge the obligations of T Pty. Ltd. and L Pty. Ltd. pursuant to paragraph (16) of the orders made by the Honourable Justice Gillard in Supreme Court of Victoria proceedings in January, 2007 (“the Supreme Court proceedings”) and such sum be paid:

(a) on or before 30 August, 2007; or

(b) in the event the defendant in the Supreme Court proceedings (being Y Corporation Pty. Ltd.) is prepared to extend the period in which the plaintiffs in those proceedings are to make payment pursuant to paragraph (16) of the orders of 25 January 2007, then on such later date as is agreed between the husband and the defendant in the Supreme Court proceedings, PROVIDED THAT if the period is extended the husband advise the solicitors for the wife of that fact and keep them advised of any subsequent extension.

That on or before 6 December, 2007 and by way of partial property settlement the husband pay to the wife or to the respective creditors listed in this paragraph, such sum as is required to discharge the liability on the following credit cards (being credits cards referred to in paragraph 12 of the affidavit of the wife filed herein on 5 April, 2007) :

(a) Visa card;

(b) National Australia Bank Visa card;

(d) L Pty. Ltd. business American Express card;

and upon payment of the said credit card liabilities the wife forthwith do all acts and things and sign all documents required to cancel the said credit cards, and for the purpose of this paragraph “the liability” means such sums as are owing on the date of discharge less any sum charged by the wife to a credit card account after 2 August, 2007.

That the subpoena filed by the wife on 23 March, 2007 addressed to the National Australia Bank be adjourned to 9:30 am. on 14 August, 2007.

That the hearing date of 20 August, 2007 be vacated.

That the amended form 2 filed by the wife on 27 July, 2007 be adjourned to 10:00 am. on 19 October, 2007 and the following directions shall apply to that application :

(a) the husband file any response and affidavit or affidavits in support of such response on or before 24 August, 2007;

(b) the wife file any additional affidavits on which she seeks to rely on or before 14 September, 2007;

(d) thereafter, neither the husband nor wife file any affidavit, save with leave of the Court; and

(e) on or before 17 October, 2007 the husband and wife file a short summary of argument, together with a list of the documents to be relied upon by him or her at the hearing.

The Court noting that in the amended form 2 filed 27 July, 2007 the wife seeks to join Y Pty. Ltd., Y Corporation Pty. Ltd. and Mr Jess (jnr) as respondents to these proceedings, and that the amended form 2 filed 27 July, 2007 has been served on each of the proposed additional respondents, the following directions apply to each of the proposed respondents :

(a) any response to the amended application filed 27 July, 2007 and affidavit or affidavits in support of such response be filed on or before 24 August, 2007;

(b) the wife and the husband file any additional affidavits on or before 14 September, 2007;

(c) each of the proposed respondents who has filed a response file and serve any additional affidavits by 5 October, 2007;

(d) thereafter, no affidavit be filed by a proposed respondent save with the leave of the Court

(e) on or before 17 October, 2007 a proposed respondent who has filed a response file a short summary of argument, together with a list of the documents to be relied upon by it or him at the hearing.

That as soon as practicable the solicitors for the wife serve a copy of these orders on each of the proposed respondents.

That the wife have leave to rely on an affidavit sworn by an adversarial expert, Mr. O, filed on 3 August, 2007.

That the amended form 2 filed by the wife on 5 April, 2007 and the amended form 2A response filed by the husband on 13 April, 2007 be otherwise dismissed.

10.

That the reasons for judgment this day be transcribed and that copies be made available to the parties.

11.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.

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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