JOLIFFE & JOLIFFE - [2019] FamCA 509

FAMILY COURT OF AUSTRALIA

JOLIFFE & JOLIFFE

[2019] FamCA 509

FAMILY LAW – SPOUSAL MAINTENANCE – Urgent spousal maintenance – where the wife seeks periodic urgent spousal maintenance – where the wife is 58 years of age and has not been in paid employment for 15 years – where the parties’ child resides with the wife – found that wife is unable to adequately support herself and has an immediate need for financial support for the purposes of section 77 – where the husband submits he has no capacity to pay – found that the husband has the capacity to meet an order for urgent spousal maintenance – orders that the husband pay to the wife $750 per week by way of urgent periodic spousal maintenance and urgent lump sum spousal maintenance of $1,300.

Family Law Act 1975 (Cth)

Ashton v Ashton [1982] FamCA 9
Redman & Redman [1987] FamCA 2
Williamson and Williamson (1978) FLC 90-575

APPLICANT:

Ms Joliffe

RESPONDENT:

Mr Joliffe

FILE NUMBER:

MLC

7613

2019

DATE DELIVERED:

1 August 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

17 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Matta

SOLICITOR FOR THE APPLICANT:

Hargreaves Family Law

COUNSEL FOR THE RESPONDENT:

Mr Levine

SOLICITOR FOR THE RESPONDENT:

Boutique Family Lawyers

Orders

IT IS ORDERED BY CONSENT THAT
(1) Pending further order, the Wife have the sole use and occupation of the property situate at and known as B Street, Suburb D (“the B Street Property”).
(2) The parties do all such things and sign all necessary documents to pay or cause to be paid to the Wife forthwith the sum of $68,347 from the Mr Joliffe Superannuation Fund, such sum to be later characterised by the trial judge.

Spousal Maintenance

(3) Pursuant to section 77 of the Family Law Act 1975 (Cth) the Husband pay or cause to be paid to the Wife or on her behalf periodic maintenance as follows:
a.Mobile phone expenses in relation to the Wife’s mobile telephone;
b.All private health insurance premiums at the current level of cover; and
c.All costs associated with the Wife’s motor vehicle.

(4) The Wife have the sole use of the Vehicle 1 registration number … and the Husband pay or cause to be paid any finance repayments, registration expenses, and maintenance expenses as and when they fall due.

Injunctions

(5) Subject to order 7 and pending further order, the Husband personally and in his capacity as officeholder in any company or trust, by himself, his servants and agents, be restrained by injunction from:
a.Selling, transferring, gifting, encumbering or further encumbering or aiding the selling, transferring, gifting, encumbering or further encumbering of, any shares held by him or any such company or trust;
b.Borrowing any further funds or incurring any further debt, save and except in the ordinary and proper course of business in relation to C Pty Ltd trading as C Company only;
c.Transferring, selling, disposing of, assigning, encumbering or in any other…

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 JOLIFFE & JOLIFFE

Details

AGLC: JOLIFFE & JOLIFFE [2019] FamCA 509
Case: [2019] FamCA 509
Decision Date: 1 August 2019

CaseChat Overview and Summary

In this matter before Macmillan J, the wife sought urgent spousal maintenance from the husband. The wife, aged 58, had not been in paid employment for 15 years and was caring for the parties' child. She contended she was unable to adequately support herself and had an immediate need for financial assistance. The husband argued he lacked the capacity to pay maintenance.

The court was required to determine whether the wife was unable to adequately support herself and had an immediate need for financial support, and if so, whether the husband had the capacity to meet an order for urgent spousal maintenance.

Macmillan J found that the wife was indeed unable to adequately support herself and had an immediate need for financial support, satisfying the requirements of section 77 of the *Family Law Act 1975* (Cth). The court also found that the husband possessed the capacity to meet an order for urgent spousal maintenance. Consequently, the husband was ordered to pay the wife $750 per week by way of urgent periodic spousal maintenance and a further lump sum of $1,300 by way of urgent lump sum spousal maintenance. The orders also included provisions for the wife's sole use and occupation of the marital home, the payment of certain expenses related to the wife's motor vehicle and private health insurance, and a significant number of injunctions aimed at preserving assets and requiring extensive financial disclosure from the husband.

Orders

Orders of the court

IT IS ORDERED BY CONSENT THAT

(1) Pending further order, the Wife have the sole use and occupation of the property situate at and known as B Street, Suburb D (“the B Street Property”).

(2) The parties do all such things and sign all necessary documents to pay or cause to be paid to the Wife forthwith the sum of $68,347 from the Mr Joliffe Superannuation Fund, such sum to be later characterised by the trial judge.

Spousal Maintenance

(3) Pursuant to section 77 of the Family Law Act 1975 (Cth) the Husband pay or cause to be paid to the Wife or on her behalf periodic maintenance as follows:

a. Mobile phone expenses in relation to the Wife’s mobile telephone;

b. All private health insurance premiums at the current level of cover; and

c. All costs associated with the Wife’s motor vehicle.

(4) The Wife have the sole use of the Vehicle 1 registration number … and the Husband pay or cause to be paid any finance repayments, registration expenses, and maintenance expenses as and when they fall due.

Injunctions

(5) Subject to order 7 and pending further order, the Husband personally and in his capacity as officeholder in any company or trust, by himself, his servants and agents, be restrained by injunction from:

a. Selling, transferring, gifting, encumbering or further encumbering or aiding the selling, transferring, gifting, encumbering or further encumbering of, any shares held by him or any such company or trust;

b. Borrowing any further funds or incurring any further debt, save and except in the ordinary and proper course of business in relation to C Pty Ltd trading as C Company only;

c. Transferring, selling, disposing of, assigning, encumbering or in any other way dealing with:

i. Any interest of the Husband, Wife, or any interest of any other entity controlled by the parties or one of them, including the business known as “C Company”;

ii. Any asset owned by any entity controlled by the parties or either of them;

iii. Any of the real properties (whether owned by the parties in their personal capacity or by an entity controlled by them);

iv. Any motor vehicle.

without the prior written consent of the Wife or order of this Honourable Court.

(6) The Husband be permitted to apply the rental income for the investment properties held by the parties, or either of them, personally or in their capacity as office holder in any company or trustee of any trust towards the mortgage, rates, taxes and/or like apportionable outgoings.

(7) For the purpose of order 6(b) and 7 hereof, the husband provide weekly financial reports to the solicitors for the Wife recording all income and expenses paid by the Husband and/or his agents.

Valuations

(8) Within 60 days the parties do all acts and things and sign all documents as are required to cause F Company to be appointed, at the expense of the Husband at first instance, to prepare a sworn valuation report of the market values of the real properties at:

a. B Street, Suburb D;

b. P Street, Suburb D;

c. E Street, Melbourne;

d. H Street, Suburb J;

e. K Street, Suburb L; and

f. M Street, Suburb N.

(9) For the purposes of appointing a single expert property valuer, the Wife shall provide to the Husband the names of three single expert valuers within 28 days and the Husband shall select one of those valuers within 7 days.

Financial Disclosure

10.

Within 14 days the Husband provide to the Wife’s solicitor:

a. Bank statements for all accounts in which the Husband holds either individually or jointly with another person (including term deposits, credit card, loans and mortgages) from 1 July 2014 to current date;

b. Details of any arrangements with any third parties in respect of referrals and commissions including, but not limited to, those arrangements with real estate agents and property developers and copies of any agreements;

c. Copies of all invoices issued by C Pty Ltd trading as C Company to any entity within the “Joliffe Group” including the self-managed superannuation fund in respect of work purported to have been undertaking by C Company on behalf of those entities;

d. Individual Tax Returns and Notice of Assessments for the financial years ended 30 June 2015 to 30 June 2018;

e. A copy of the Company Constitution for any company in the Joliffe Group;

f. A copy of the Trust Deed (and any Deed of appointment or variation) of any trust in the Joliffe Group;

g. A list of any Trusts of which the Husband had been appointed and/or is the settlor, appointer, trustee or beneficiary;

h. Copies of the Contracts of Sale, settlement statements and statements of adjustments for any real property purchased by the Husband in his sole name or jointly with any other person from 1 July 2014 to the current date;

i. A copy of the mortgage agreement between the Husband and G Pty Ltd and statements evidencing the repayments of the mortgage and current balance owing;

j. Documents evidencing how the sum of $1,000,000 borrowed by the Husband’s company O Pty Ltd as trustee for the O Trust Deed secured against the property at P Street, Suburb D, has been expended;

k. Copies of the Lease Agreements for any real property owned by the parties and/or the Joliffe Group which is presently tenanted;

l. Documentary evidence of any shareholding held by the Husband in any public and/or private company, in Australia and/or overseas, whether solely or jointly with any other person/s or entity;

m. Documentary evidence of all cars, motorbikes, and other vehicles and assets registered in the Husband’s name or in which he has an interest in Australia and/or overseas;

n. Statements of any life insurance policies and hire purchase agreements held by the Husband, or on his behalf;

o. Details of all other liabilities in the Husband’s name or any entity within the Joliffe Group; and

p. Copies of the Q Pty Ltd (or any other betting agency) account statements in the name of the Husband or his account username from 2014 (or the date that the account was established, if later than 2014) to date, and any other Q Pty Ltd account controlled by the Husband.

11.

Within 28 days the Husband provide to the Wife’s solicitor:

a. Copies of all loan applications made from 1 July 2014 to the current date to any financial institution;

b. Financial Statements and Tax Returns for any entity in which the Husband holds an interest for the financial years ended 30 June 2015 to 30 June 2018 (and 2019 once completed);

c. Bank statements for any account held by any entity in the Joliffe Group from 1 July 2014 to the current date; and

d. Tax Returns and Financial Statements for any self-managed or other superannuation fund in which the Husband holds an interest for the financial years ended 30 June 2015 to 30 June 2018.

IT IS ORDERED THAT

(12) Pursuant to section 77 of the Family Law Act 1975 (Cth) the Husband pay or cause to be paid to the Wife the sum of $750 per week by way of urgent periodic spousal maintenance to be deposited in or transferred to the wife’s ME bank account BSB: …, account number: …20, the first payment to be made by 4.00pm on Wednesday 7 August 2019 and each alternative week thereafter.

(13) Pursuant to section 77 of the Family Law Act 1975 (Cth) by 4.00pm on Friday 2 August 2019 the Husband pay or cause to be paid to the Wife the sum of $1,300 by way of urgent lump sum spousal maintenance to be deposited in or transferred to the wife’s ME bank account BSB: …, account number: …20.

(14) Until further order, the Husband pay or cause to be paid the following expenses for the B Street Property, as and when they fall due:

a. All mortgage / line of credit repayments;

b. All council and water rates;

c. All outgoings and utilities (including but not limited to water consumption, electricity, gas, insurances, internet and landline telephone expenses).

(15) Subject to order 7 and pending further order, the Husband personally and in his capacity as officeholder in any company or trust, by himself, his servants and agents, be restrained by injunction from making or aiding the making of any payment or transfer (including any loan, advance or gift) by him or on his behalf or by or on behalf of any such company or trust, save and except in the ordinary and proper course of business in relation to C Pty Ltd trading as C Company only.

(16) Without limiting the operation of orders 6 and 15 herein, the Husband and Wife personally or in their capacity as officeholder in any company or trust or by their servants and agents, otherwise be restrained by injunction from withdrawing or electronically transferring any monies from the Commonwealth Bank of Australia CDIA account number ending #...96 save and except with the written agreement of both the Husband and the Wife or order of this Court.

(17) All extant applications be adjourned for hearing in the Senior Registrars Duty List at 10.00 am on 19 September 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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