KELBY & KELBY - [2016] FamCA 698

FAMILY COURT OF AUSTRALIA

KELBY & KELBY

[2016] FamCA 698

FAMILY LAW – PROPERTY – INTERIM PROPERTY PROCEEDINGS –Where the wife seeks an interim property settlement and spousal maintenance in the alternative – Where the amount sought falls within the wife’s expectation on a final distribution – Orders made – Spousal maintenance – Where the wife does not meet the threshold test taking into account the interim property settlement orders made – Application dismissed.

FAMILY LAW – PROPERTY – INTERIM PROPERTY PROCEEDINGS – Restraining orders – Where the wife sought that the husband inform her before dealing with a property – Orders made –Where the wife sought that the husband be restrained from dealing with the assets of the company – Where there was no evidentiary basis per Waugh & Waugh (1999) 27 Fam LR 63 for making such orders.

FAMILY LAW – PROPERTY – INTERIM PROPERTY PROCEEDINGS – Where the wife sought that the husband produce documents relating to the company – Where the husband has produced the records of the company for inspection – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 15.49

Waugh & Waugh (1999) 27 Fam LR 63

APPLICANT:

Ms Kelby

RESPONDENT:

Mr Kelby

FILE NUMBER:

SYC

8071

2014

DATE DELIVERED:

24 August 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

22 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fernon

SOLICITOR FOR THE APPLICANT:

Yates Beaggi Lawyers

SOLICITOR FOR THE RESPONDENT:

Mcgirr Lawyers

Orders

IT IS ORDERED

That within twenty-eight (28) days of the date of these Orders, the husband pay to the wife, by way of interim property settlement, the sum of $250,000.
In default of payment of the sum referred to in Order 1 by the due date, the husband do all acts and things and sign all documents required to effect the sale of the property at B Street, Suburb C (“Property D”), to pay the costs of the real estate agent and the legal costs of sale and to pay one half of the balance remaining to the wife by way of interim property settlement.
That the wife’s application for spousal maintenance is dismissed.
That, in the event the husband proposes to dispose of, encumber or deal with his interest in the property at E Street, Suburb F, he shall give the wife no less than fourteen (14) days’ notice in writing of his intentions.
That the wife’s application for restraining orders contained in Orders 4 and 5 of the Amended Application in a Case filed 14 July 2016 is dismissed.
That the wife’s application for the provision of documents contained in Order 6 of the Amended Application in a Case filed 14 July 2016 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 has been approved by the Chief…

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

AGLC: KELBY & KELBY [2016] FamCA 698
Case: [2016] FamCA 698
Decision Date: 24 August 2016

CaseChat Overview and Summary

In *Kelby & Kelby*, the wife sought interim property settlement and spousal maintenance. The husband sought to restrain the wife from dealing with certain assets and sought orders for the production of documents. The proceedings were heard by Rees J.

The court was required to determine whether to make orders for interim property settlement, whether the wife met the threshold for spousal maintenance, and whether to grant restraining orders concerning the husband's dealings with company assets and property. The court also considered the wife's application for the production of documents relating to the company.

Rees J ordered the husband to pay the wife $250,000 by way of interim property settlement within 28 days, with a provision for the sale of a specified property if payment was not made. The application for spousal maintenance was dismissed, as the court found the wife did not meet the threshold test, taking into account the interim property settlement ordered. The wife's application for restraining orders concerning the husband's dealings with company assets was dismissed due to a lack of evidentiary basis, referencing the principles in *Waugh & Waugh*. The wife's application for the production of company documents was also dismissed, as the husband had already provided the company records for inspection. The court also made an order requiring the husband to provide the wife with 14 days' written notice if he proposed to dispose of, encumber, or deal with his interest in another specified property.

Orders

Orders of the court

IT IS ORDERED

That within twenty-eight (28) days of the date of these Orders, the husband pay to the wife, by way of interim property settlement, the sum of $250,000.

In default of payment of the sum referred to in Order 1 by the due date, the husband do all acts and things and sign all documents required to effect the sale of the property at B Street, Suburb C (“Property D”), to pay the costs of the real estate agent and the legal costs of sale and to pay one half of the balance remaining to the wife by way of interim property settlement.

That the wife’s application for spousal maintenance is dismissed.

That, in the event the husband proposes to dispose of, encumber or deal with his interest in the property at E Street, Suburb F, he shall give the wife no less than fourteen (14) days’ notice in writing of his intentions.

That the wife’s application for restraining orders contained in Orders 4 and 5 of the Amended Application in a Case filed 14 July 2016 is dismissed.

That the wife’s application for the provision of documents contained in Order 6 of the Amended Application in a Case filed 14 July 2016 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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