Kelby and Kelby (No 2) - [2017] FamCA 625

FAMILY COURT OF AUSTRALIA

KELBY & KELBY (NO 2)

[2017] FamCA 625

FAMILY LAW – PROPERTY –INTERIM PROCEEDINGS – Where the wife sought orders for a further partial distribution of the parties’ matrimonial property – Insufficient evidence – Application dismissed.

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – INJUNCTIONS – Where the wife sought restraints against the parties’ company – Where the wife failed to address the matters set out in section 90AF(3) of the Family Law Act1975 (Cth) – Where even if the orders sought were to restrain the husband from dealing with the company in a certain way there was insufficient evidence – Where the wife’s orders go beyond what is reasonably necessary – Application for provision of information – Where no attempt to settle the issue was made pursuant to Note 1 of Rule 13.22 of the Family Law Rules 2004 (Cth) – Application dismissed.

Family Law Act1975 (Cth) ss 79, 79(4), 80, 80(1)(h), 114, 114(3) 90AF, 90AF(3), 90AF(4)

Family Law Rules 2004 (Cth) rr 5.09, 13.22

Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Davidson and Davidson (No 2) (1994) FLC 92-469
Giumelli v Giumelli (1999) 196 CLR 101
Kelleher & Anderson [2007] FamCA 137
Lawson & Crawford and Ors [2014] FamCA 1012
Martiniello and Martiniello (1981) FLC 91-050
Medlow & Medlow (2016) FLC 93-692

Mullen and De Bry (2006) FLC 93-293

Norton & Locke (2013) FLC 93-567
Sieling and Sieling (1979) FLC 90-627
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466

APPLICANT:

Ms Kelby

RESPONDENT:

Mr Kelby

FILE NUMBER:

SYC

8071

2014

DATE DELIVERED:

15 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

19 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fernon

SOLICITOR FOR THE APPLICANT:

Yates Beaggi Lawyers

SOLICITOR FOR THE RESPONDENT:

McGirr Lawyers

Orders

The wife’s Amended Application in a Case filed 27 March 2017 is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelby & Kelby (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC8071 of 2014

Ms Kelby

Applicant

And

Mr Kelby

Respondent

REASONS FOR JUDGMENT

introduction

This matter concerns an application by Ms Kelby (“the wife”) seeking orders for a further partial distribution of the parties’ matrimonial property and a restraint against the company, J Pty Limited A.C.N. … (“the company”) which is controlled by Mr Kelby (“the husband”). The restraints seek to prevent that company from being…

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: [2017] FamCA 625
Decision Date: 15 May 2017

CaseChat Overview and Summary

In *Kelby and Kelby (No 2)*, the wife sought interim orders for a further partial distribution of the parties' matrimonial property and sought to impose restraints against the parties' company. The matter came before McClelland J.

The court was required to determine whether there was sufficient evidence to support the wife's applications for a partial property distribution and for injunctions against the company. Specifically, the court considered whether the wife had addressed the matters set out in section 90AF(3) of the *Family Law Act 1975* (Cth) in relation to the company, and whether the orders sought were reasonably necessary. The court also considered the wife's application for the provision of information, and whether any attempt had been made to settle this issue pursuant to Note 1 of Rule 13.22 of the *Family Law Rules 2004* (Cth).

McClelland J found that there was insufficient evidence to support the wife's application for a further partial distribution of property. Regarding the restraints sought against the company, the court determined that the wife had failed to address the requirements of section 90AF(3) of the *Family Law Act 1975* (Cth). Furthermore, even if the orders were framed as restraints on the husband's dealings with the company, the evidence was insufficient, and the orders sought were considered to go beyond what was reasonably necessary. In relation to the application for the provision of information, the court noted that no attempt had been made to settle the issue as required by the Family Law Rules.

Consequently, the wife's Amended Application in a Case filed on 27 March 2017 was dismissed.

Orders

Orders of the court

The wife’s Amended Application in a Case filed 27 March 2017 is dismissed.

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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