Kachmar & Madero - [2021] FedCFamC2F 616

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kachmar & Madero [2021] FedCFamC2F 616

File number(s): MLC 8783 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 10 December 2021

Catchwords: FAMILY LAW – Injunctions – whether or not the husband should be ordered to pay funds moved overseas into a trust account – non-disclosure issues – husband sought an adjournment – husband on sufficient notice – inconsistencies in husband’s evidence.

Legislation:
Child Support (Assessment) Act 1989 (Cth), s.116(1)(b)

Family Law Act 1975 (Cth), ss.114(3), 117

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Part 6.1

Cases cited:
Blue Seas Investments & Mitchell (1999) 25 Fam LR 65

In the Marriage ofBlack & Kellner (1992) 12 Fam LR 343

Mullen & De Bry (2007) 36 Fam LR 501

Tsiang & Wu and Ors [2018] FamCA 1057

Waugh & Waugh [2000] FamCA 1183

Division: Division 2 Family Law

Number of paragraphs: 41

Date of hearing: 10 December 2021

Place: Melbourne

Counsel for the Applicant: Ms Dellidis

Solicitor for the Applicant: Waterson Legal

Counsel for the Respondent: Ms Matson

Solicitor for the Respondent: KHQ Lawyers
ORDERS

MLC 8783 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KACHMAR

Applicant

AND:
MR MADERO

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

10 DECEMBER 2021

THE COURT ORDERS THAT:
1.The proceeding is adjourned to the Duty List on 14 February 2022 at 9:45AM.
2.All parties are to note and comply with Central Practice Direction – Family Law Case Management paragraph 5.1-5.20 at
3.The Mention on 2 March 2022 be vacated.
4.The husband forthwith do all acts and things and sign all documents necessary to cause the sum of $149,950.00 to be paid into the trust account of the wife’s instructing solicitors, Waterson Legal, with payment to be made by no later than 4PM AEST on 17 December 2021.
5.Each party, their servants and agents be restrained from dealing with the funds save in compliance with order 4 herein, without the expressed written agreement of the parties through their solicitors or order of this Court.
6.Waterson Legal is authorised to invest the funds in an interest bearing trust account on behalf of the parties, with the parties, their servants and agents be restrained from dealing with those funds pending further order.
7.The husband may file and serve a further affidavit addressing the transfers of funds, together with supporting documents and the husband may also address the issues raised of concern with respect to non-disclosure and omissions from his material by no later than 4PM on 21 January 2022.
8.The husband file and serve a financial statement by no later than 4PM on 21 January 2022.
9.The husband pay the wife’s costs of and in relation to the hearing dated 20 October 2021 on a party/party basis fixed in the sum of $2,903.75.
10.The wife’s costs of today be reserved.
11.The…

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 Kachmar & Madero

Details

AGLC: Kachmar & Madero [2021] FedCFamC2F 616
Case: [2021] FedCFamC2F 616
Decision Date

CaseChat Overview and Summary

In the matter of Kachmar and Madero, the wife applied for leave to bring an application for an injunction requiring the husband to pay funds into a trust account, as well as seeking costs associated with the hearing on 20 October 2021. The husband opposed the application and sought an adjournment on the basis that he had not had sufficient opportunity to respond to the application, and so made complaints about lack of procedural fairness. The primary issue for determination was whether the wife's application should be granted.

The court found that the husband had not complied with his duty and obligations to make full and frank disclosure, and there were significant inconsistencies in his material. The court noted that the husband had been on notice of the issues raised and had not provided any evidence of attempts to address these deficiencies and inconsistencies. The court also found that there was a real and not theoretical risk of matrimonial assets being dissipated if the injunction was not granted. The court concluded that it would be procedurally unfair to adjourn the proceedings and not make any orders.

The court made an order that the husband pay $149,950 into the wife's solicitor's trust account by a specified date, and that the wife's solicitor be authorised to invest those funds for the parties pending further order. The court also made orders with respect to further disclosure and costs. The court noted that it may become necessary to join other parties in the proceedings, and that the matter may be transferred to Division 1 of the court. The court adjourned the proceeding to a later date and noted that the husband had a further opportunity to address certain issues.

Orders