Keach and Keach & Anor (No 2) - [2009] FamCA 1374

FAMILY COURT OF AUSTRALIA

KEACH & KEACH AND ANOR (NO. 2)

[2009] FamCA 1374

FAMILY LAW – PROPERTY SETTLEMENT – Injunctions imposed against husband to dispose of property without written consent of wife

FAMILY LAW – PROPERTY SETTLEMENT – Application of second respondent for adjournment dismissed

FAMILY LAW – SUBPOENAS – Leave for all parties and legal representatives to inspect and copy documents produced pursuant to subpoenas

Family Law Act 1975 (Cth)

APPLICANT:

Mr Keach

FIRST RESPONDENT:

Ms Keach

SECOND RESPONDENT:

J Pty Ltd

FILE NUMBER:

SYF

2181

2006

DATE DELIVERED:

21 September 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland J

HEARING DATE:

21 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE FIRST RESPONDENT:

Mr North SC

With Mr Kearney

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

COUNSEL FOR THE SECOND RESONDENT

Mr Maiden SC

With Mr Emmett

SOLICITOR FOR THE SECOND RESPONDENT

Esplins Solicitors

Orders

ORDER BY CONSENT

That pending further order, the husband be restrained and an injunction is hereby granted restraining him from transferring, disposing of, assigning, alienating or mortgaging or otherwise dealing with any and all ordinary shares held by him in N Limited without the prior written consent of the wife or an order of this Court.
That pending further order, the husband be restrained and an injunction is hereby granted restraining him from doing any act or thing or authorising any person to do any act or thing to cause the withdrawal of any monies held by Karras Partners Lawyers on behalf of the husband without the prior written consent of the wife or an order of this Court.
That pending further order, the husband be restrained and an injunction is hereby granted restraining him from doing any act or thing or authorising any person to do any act or thing to cause any monies held in any account in his name or on his behalf being monies received by the husband from the sale by him of shares in N Limited from 1 January 2009 to date to be dispersed, transferred or withdrawn without the prior written consent of the wife or an order of this Court.

FURTHER ORDER

That the oral application by the second respondent for an adjournment be dismissed.
That leave is granted to all parties and their legal representatives to inspect and copy the documents produced pursuant to the subpoenas to Esplins, J Pty Ltd, and W Accountants.
That the husband have leave to file and serve his affidavit in reply.
That the wife have leave to issue a subpoena to the Managing Partner Elrington Boardman Allport to produce documents, such subpoena to be returnable at 12:00pm on 22 September 2009.

IT IS NOTED that publication of this judgment under the pseudonym Keach & Keach and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2181 of 2006

MR KEACH

Applicant

And

MS KEACH

1^st Respondent

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

Case: [2009] FamCA 1374
Decision Date: 21 September 2009

CaseChat Overview and Summary

In the matter of *Keach and Keach & Anor (No 2)*, Strickland J of the Family Court of Australia considered applications concerning property settlement and related procedural matters. The proceedings involved the husband, the wife, and a second respondent, with the primary dispute revolving around the husband's alleged attempts to dispose of assets without the wife's consent.

The court was required to determine whether to grant injunctions restraining the husband from dealing with his shares in N Limited and monies held by Karras Partners Lawyers, as well as monies received from the sale of N Limited shares. Additionally, the court had to consider an application for an adjournment by the second respondent and applications for leave to inspect documents produced pursuant to subpoenas, to file an affidavit in reply, and to issue a further subpoena.

Strickland J granted injunctions restraining the husband from transferring, disposing of, assigning, alienating, or mortgaging his ordinary shares in N Limited without the wife's written consent or a court order. Similar injunctions were imposed regarding monies held by Karras Partners Lawyers and monies received from the sale of N Limited shares since 1 January 2009. The court dismissed the second respondent's oral application for an adjournment. Leave was granted for all parties and their legal representatives to inspect and copy documents produced pursuant to subpoenas to Esplins, J Pty Ltd and W Accountants. The husband was granted leave to file and serve his affidavit in reply, and the wife was granted leave to issue a subpoena to the Managing Partner of Elrington Boardman Allport.

Orders

Orders of the court

ORDER BY CONSENT

That pending further order, the husband be restrained and an injunction is hereby granted restraining him from transferring, disposing of, assigning, alienating or mortgaging or otherwise dealing with any and all ordinary shares held by him in N Limited without the prior written consent of the wife or an order of this Court.

That pending further order, the husband be restrained and an injunction is hereby granted restraining him from doing any act or thing or authorising any person to do any act or thing to cause the withdrawal of any monies held by Karras Partners Lawyers on behalf of the husband without the prior written consent of the wife or an order of this Court.

That pending further order, the husband be restrained and an injunction is hereby granted restraining him from doing any act or thing or authorising any person to do any act or thing to cause any monies held in any account in his name or on his behalf being monies received by the husband from the sale by him of shares in N Limited from 1 January 2009 to date to be dispersed, transferred or withdrawn without the prior written consent of the wife or an order of this Court.

FURTHER ORDER

That the oral application by the second respondent for an adjournment be dismissed.

That leave is granted to all parties and their legal representatives to inspect and copy the documents produced pursuant to the subpoenas to Esplins, J Pty Ltd, and W Accountants.

That the husband have leave to file and serve his affidavit in reply.

That the wife have leave to issue a subpoena to the Managing Partner Elrington Boardman Allport to produce documents, such subpoena to be returnable at 12:00pm on 22 September 2009.

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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