Kendall and Kendall - [2012] FamCA 587

FAMILY COURT OF AUSTRALIA

KENDALL & KENDALL

[2012] FamCA 587

FAMILY LAW – PROPERTY – Injunction – Preservation of property

Family Law Act 1975 (Cth)

APPLICANT:

Ms Kendall

RESPONDENT:

Mr Kendall

FILE NUMBER:

ADC

1635

2012

DATE DELIVERED:

13 July 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne by video link to Adelaide

JUDGMENT OF:

Cronin J

HEARING DATE:

13 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tredrea

SOLICITOR FOR THE APPLICANT:

Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Burrell

SOLICITOR FOR THE RESPONDENT:

David Burrell & Co

Orders

That the application of the wife filed 12 July 2012 is dismissed.
That the husband’s costs of this day are reserved.
That reasons be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kendall & Kendall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: No. ADC 1635 of 2012

Ms Kendall

Applicant

And

Mr Kendall

Respondent

REASONS FOR JUDGMENT

This is an application was brought on urgently via video link from the Adelaide registry into Melbourne. It was filed yesterday.
Mr Tredrea, on behalf of the applicant, and Mr Burrell, on behalf of the husband, addressed the legal issues and how I should deal with the matter.
Mr Burrell acts for the husband at something of a disadvantage today, because having regard to the timing of the filing of the matter, his client has no evidence before the Court. Both parties have acknowledged that the asset position is roughly what each says it is, I have a fairly good picture.
The application was brought on urgently, having been filed in the Adelaide registry yesterday, because in the substantive proceedings, the husband by an affidavit in June, in which he indicated that he is due to turn 60 and may be going to access his superannuation.
The affidavit of the wife annexes a statement of financial position of the superannuation fund, which is 12 months old. The fund, it is common ground, has four members and the balance shows that there are assets of just over $6.2 million.
It seems almost common ground as well that the husband and wife have about 4.5 to $4.8 million of that $6.2 million. Importantly, the balance sheet showed that of the $6.2 million, $5.7 million lies in land and buildings and, no doubt, when the parties get down to working out just exactly what to do here, a valuation of those land and buildings will need to be undertaken.
There are also companies with shares totalling $2.4 million and bearing in mind that that was at 30 June last year, a whole year has gone by and there may have been significant changes.
There is also a liability in the superannuation fund to a corporate entity by way of a loan. I do not know what the position with that is, save that if one looks at the 2010…

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 Kendall and Kendall

Details

AGLC: Kendall and Kendall [2012] FamCA 587
Case: [2012] FamCA 587
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an urgent application by Ms Kendall (the wife) against Mr Kendall (the husband) concerning the preservation of property. The application was filed the day before the hearing and brought on by video link from Adelaide to Melbourne. Both parties acknowledged the approximate asset position, providing the court with a reasonable understanding of their financial circumstances.

The wife sought injunctive relief to prevent the husband from dealing with his entitlements in a superannuation fund, citing his intention to access these funds upon turning 60. She also sought injunctions preventing the husband from accessing any annual leave entitlements. The core legal issues were whether the court had the power to grant such injunctions under section 114 of the *Family Law Act 1975* (Cth) and, if so, whether the evidence presented justified the exercise of that discretion.

Justice Cronin considered the principles governing injunctions under section 114, referencing the Full Court's decision in *Mullen & De Bry* [2006] FamCA 1380. While acknowledging the broad nature of the statutory power compared to common law Mareva injunctions, the court noted that an applicant must still demonstrate an arguable case and, by real evidence, a risk that a judgment would remain unsatisfied due to dissipation or concealment of assets. The court found the evidence presented by the wife to be scant. It concluded that even if the husband accessed his superannuation entitlements, there were ample other assets available to satisfy any future judgment in the wife's favour, thus mitigating any real risk of her entitlement being thwarted. Furthermore, the court found no evidence to justify an injunction regarding annual leave, and expressed doubt about the court's power to grant such an order under section 114 in these circumstances.

Consequently, the wife's application was dismissed. The husband's costs of the day were reserved, and reasons for the judgment were ordered to be transcribed.

Orders