LABONTE & LABONTE

Case [2018] FamCA 755

FAMILY COURT OF AUSTRALIA

LABONTE & LABONTE [2018] FamCA 755
FAMILY LAW – PROPERTY – INTERIM APPLICATION – Where the wife has been the primary carer for the parties’ children – Where one of the parties’ children was born with a serious medical condition and requires constant care – Where the husband’s parents are the director and shareholder of the Second Respondent – Where the husband has executed certain documents dealing with matrimonial property unknowingly in breach of Court orders – Where the husband’s parents have not yet lodged those documents – Where injunctive relief is sought by the wife to protect matrimonial property – Where spousal maintenance is sought by the wife – Where a partial property distribution is sought by both parties – Where a dollar for dollar order is sought by the wife –Orders for an injunction in relation to the repayment of an entitlement of the Second Respondent made – Orders for an injunction in relation to the assets of a trust made – Orders for periodic and other spousal maintenance made – Orders for an interim property distribution in the wife’s favour made.

Family Law Act 1975 (Cth) ss. 72, 74, 75, 79, 80, 114
Federal Court of Australia Act 1976 (Cth) ss. 37

Family Law Rules 2004 rr. 1.04, 12.07
Ashton & Ashton (1986) FLC 91-777
Blue Seas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856
Cardile v LED Builders Pty Limited (1999) 198 CLR 380
Curtis v NID Pty Limited [2010] FCA 1072
Davidson and Davidson (No 2) (1994) FLC 92-469
Drysdale & Drysdale [2011] FamCAFC 85
Gabel & Yardley (2008) FLC 93-386
Glover v Walters (1950) 80 CLR 172
Hall v Hall [2016] 257 CLR 490
Iphostrou & Iphostrou [2011] FamCA 20
Jefferson & Coulston [2014] FamCA 1083
Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531
McCrossen & McCrossen (2006) FLC 93-283
Maroney & Maroney [2009] FamCAFC 45
Martiniello & Martiniello (1981) FLC 91-050
Medlow & Medlow (2016) FLC 93-692
Mijac Investments Pty Ltd v Graham [2013] FCA 296
Modra v Victoria (Department of Education and Early Childhood Development and Department of Human Services)(2012) 291 ALR 429
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia(No 3) (1998) 195 CLR 1
Quayle and Perceval [2018] FamCA 664
Redman & Redman (1987) FLC 91-805
Sieling and Sieling (1979) FLC 90-627
Sklavos v Australasian College of Dermatologists [2013] FCA 1065
Stein & Stein (2000) FLC 93-004
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Wenz & Archer (2008) 40 Fam LR 212
Zadenev & Zadenev [2013] FamCA 838
APPLICANT: Ms Labonte
RESPONDENT: Ms Labonte
INTERVENOR: Labonte Holdings (B) Pty Ltd
FILE NUMBER: SYC 3565 of 2018
DATE DELIVERED: 24 September 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: McClelland J
HEARING DATE: 11 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson QC
SOLICITOR FOR THE APPLICANT: Pigdon Norgate…

Continue reading LABONTE & LABONTE

Sign in free to access the full text

Details
AGLC
LABONTE & LABONTE [2018] FamCA 755
Case
[2018] FamCA 755
Decision Date

CaseChat Overview and Summary

This matter came before McClelland J concerning interim orders sought by the wife against the husband. The dispute involved financial matters arising from the parties' separation, including the disposition of assets and spousal maintenance.

The court was required to determine whether to grant interim injunctive relief restraining the husband from dealing with certain assets and paying money to his parents or entities in which they have an interest, and whether to order the husband to pay spousal maintenance and contribute to specific expenses. The court also considered the evidentiary standard applicable to interim applications and the reasonableness of the wife's claimed expenditures.

McClelland J applied the ordinary standard of proof in civil proceedings, as set out in s 140 of the Evidence Act 1995 (Cth), to the wife's Financial Statement. The judge considered the reasonableness of the wife's claimed expenditures, modifying certain items based on the lack of supporting documentary evidence and the presence of duplications or existing coverage within other categories. The court also took into account the husband's capacity to pay spousal maintenance, considering his accepted capacity and evidence of discretionary payments made.

The court ordered that the husband be restrained from paying money to his parents or related entities concerning the C Street development without the wife's consent, and from disposing of or encumbering his interests in trusts or dealing with trust assets, including units in the C Street development, without the wife's consent. The husband was also ordered to pay spousal maintenance of $1,265 per week, continue paying the mortgage on the Suburb D property, cover specified motor vehicle expenses for the wife, and pay a partial property distribution of $96,567 within 28 days.

Orders

Orders of the court

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

1.

The husband be and is hereby restrained from paying or causing the payment of any money to his parents, The Second Respondent or any entity in which they have an interest in relation to the C Street development, without the written consent of the wife, which shall not be unreasonably withheld.

2.

Other than in the ordinary course of business, including, for the purpose of paying taxation liabilities, in complying with orders made in these proceedings or in complying with his child support obligations, the husband, in his personal capacity and as director of any entity, be and is hereby restrained from disposing of or encumbering any interest that he holds either in his sole name or beneficially through any entity in a trust or dealing with the assets of a trust, including but not limited to the units held in the C Street development, without first obtaining the written consent of the wife, which consent shall not be unreasonably withheld.

3.

The husband pay spousal maintenance to the wife in the sum of $1,265 per week, such payments to be made weekly, in advance, to the wife’s nominated bank account, with the first such payment to be made two days from the date of these orders and weekly thereafter.

4.

The husband continue to pay, as he has been doing, the following payments as and when they fall due:

(a) The mortgage repayments in relation to the Suburb D mortgage; and

(b) The following expenses in relation to the motor vehicle driven by the wife:

(i) Registration and comprehensive third party insurance;

(ii) Servicing and repairs; and

(iii) Car lease.

5.

Within 28 days of the date of these orders, or such other time as agreed between the parties in writing, the husband pay to the wife the sum of $96,567 by way of partial property distribution, with such payment to be made into the Pigdon Norgate Family Lawyers Trust Account.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Hall v Hall [2016] 257 CLR 490, the plurality referred to the relevant extract from Redman & Redman (supra) and said:No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). In that context, the wife’s Financial Statement filed on 6 June 2018 is evidence of her expenditure. However, in circumstances where items of expenditure have been challenged by the husband and no documentary evidence has been produced to support that expenditure, in exercising my discretion pursuant to s 74 of the Act, it is appropriate to consider the reasonableness of the wife’s claims. Taking that approach, I modify the wife’s schedule of claimed weekly expenditure by reducing or deleting the following items:a)Gardening, lawn mowing, roof gutters reduced to $24 per week;b)Repair of furnishing/appliances deleted, as covered by items referred to as “Replacement of furniture” and “House maintenance/repairs”;c)Replacements deleted, as covered by item referred to as “Replacement of furniture”;d)Mortgage deleted;e)Deck maintenance deleted, as covered by item referred to as “House maintenance/repairs”;f)Plumber/electrician/handyman deleted, as covered by item referred to as “House maintenance/repairs”;g)Carpet and rug cleaning deleted, as covered by item referred to as “House maintenance/repairs”;h)Pest control deleted, as no evidence provided of infestation or costs incurred;i)Entertainment and outgoings deleted, as this item is duplicated;j)Clothing and footwear reduced to $25 per week, which is equivalent to $1,300 per year;k)Travel and holidays reduced to $40 per week, which is the equivalent to $2,080 per year; andl)Gifts and Christmas reduced to $20 per week, which is equivalent to $1,040 per year. At the hearing, it was agreed that the husband will continue to meet the expenses in respect to the wife’s motor vehicle, as follows:a)Registration at $17;b)Comprehensive third-party insurance at $57;c)Service and repairs at $250; andd)Car lease at $21. I do not intend to make any reduction in respect to the item “Pet food/vet/kennel” in respect to the family’s pet dog, which is also a comfort dog for X. It is not clear that Counsel for the father had the opportunity to obtain specific instructions in respect of that matter, however it is my view that the submission to the effect that that item of expenditure should be attributed to X, rather than the wife, was, in the circumstances of this case, perhaps a little severe. Accordingly, that revision of the items contained in Part N of the wife’s Financial Statement leads to a total figure of $1,265 per week. The husband accepts that he has the capacity to pay spousal maintenance to the wife in the sum of $855 per week. In my view, he has the capacity to pay an additional $410 per week. This is evidenced by the following discretionary payments made by the husband:a)$5,479 paid to V Lodge at Town W on 31 December 2017; andb)Various payments made to Ms N in the period subsequent to 30 November 2015, which are set out in pages 221 to 236 of the wife’s tender bundle.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.