Lacey and Lacey - [2016] FCCA 38

FEDERAL CIRCUIT COURT OF AUSTRALIA

LACEY & LACEY

[2016] FCCA 38

Catchwords:
FAMILY LAW – Property – application for an interim property settlement – 37 year marriage – very substantial pool – where the husband has control of the majority of the assets – where the matter has taken a long time to finalise due to matters outside the parties’ control – where the end is not yet in sight – whether the husband should pay the wife a sum of money prior to the final hearing so that she can, among other things, purchase a property and derive income and be independent of the husband and Centrelink.

Legislation:

Family Law Act 1975 (Cth), ss.79, 80

Harris & Harris (1993) FLC 92-378
Stanford & Stanford [2012] HCA 206
Strahan & Strahan (2011) FLC 93-466
Wenz & Archer [2008] FMCAfam 1119
Pierce & Pierce (1999) FLC 92-844
Williams & Williams [2007] FamCA 313

Applicant:

MS LACEY

Respondent:

MR LACEY

File Number:

NCC 1128 of 2011

Judgment of:

Judge Terry

Hearing date:

30 April 2015

Date of Last Submission:

30 April 2015

Delivered at:

Newcastle

Delivered on:

19 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Boyd

Solicitors for the Applicant:

Bell & Johnson Solicitors

Solicitor Advocate for the Respondent:

Mr Hargreaves

Solicitors for the Respondent:

Palmers Solicitors

ORDERS

NOTING THAT the court intends to order that the wife receive $1,000,000.00 by way of further interim property settlement the matter is adjourned to 2.15pm on 29 January 2016 for submissions as to the form of the orders, with consideration to be given to including a requirement that the wife inform the husband about the use or whereabouts of the money from time to time and a requirement that upon the wife purchasing a property she consents to an injunction restraining her from encumbering or disposing of the property pending finalisation of the property settlement proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1128 of 2011

MS LACEY

Applicant

And

MR LACEY

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Lacey and Mr Lacey separated in January 2010 after a 37 year marriage. They are parties to property settlement proceedings which have been before the court since 2011 and the end is still not in sight. In November 2015 they were still arguing about processes connected with obtaining valuations.
Hopefully the valuations will be available in the relatively near future but if the matter does not settle after the valuations are obtained, and it is difficult to be optimistic that this will occur, it is likely to be another 12 months before the matter is finalised.
On current appearances the asset pool is worth well over $9m and the husband has control of the vast majority of the assets. The wife owns a modest home unit but she is dependent on Newstart allowance and on voluntary payments made…

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 Lacey and Lacey

Details

AGLC: Lacey and Lacey [2016] FCCA 38
Case: [2016] FCCA 38
Decision Date: 19 January 2016

CaseChat Overview and Summary

In the matter of *Lacey and Lacey*, heard before Judge Terry, the dispute concerned interim property settlement between a husband and wife. The court was considering an order for the wife to receive a significant sum of money as an interim property settlement.

The primary legal issue before the court was the form and conditions of the interim property settlement order. Specifically, the court needed to determine whether to include specific requirements regarding the wife's use and reporting of the funds, and the potential for an injunction over any property purchased with those funds pending final resolution of the proceedings.

Judge Terry indicated an intention to order the wife receive $1,000,000.00 by way of further interim property settlement. The court proposed to adjourn the matter to allow for submissions on the precise form of the orders. These submissions were to consider including a requirement for the wife to inform the husband of the use or whereabouts of the money from time to time, and a further requirement that upon purchasing a property, the wife consent to an injunction restraining her from encumbering or disposing of that property until the finalisation of the property settlement proceedings.

Orders

Orders of the court

NOTING THAT the court intends to order that the wife receive $1,000,000.00 by way of further interim property settlement the matter is adjourned to 2.15pm on 29 January 2016 for submissions as to the form of the orders, with consideration to be given to including a requirement that the wife inform the husband about the use or whereabouts of the money from time to time and a requirement that upon the wife purchasing a property she consents to an injunction restraining her from encumbering or disposing of the property pending finalisation of the property settlement proceedings.

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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