Lovell and Lovell - [2009] FamCA 982

FAMILY COURT OF AUSTRALIA

LOVELL & LOVELL

[2009 ] FamCA 982

FAMILY LAW – PROEPRTY – proceeds of sale paid into interest bearing account
FAMILY LAW – INJUNCTION – restraint re property

Family Law Act 1975 (Cth)

APPLICANT:

Ms Lovell

RESPONDENT:

Mr Lovell

FILE NUMBER:

SYC

1876

2008

DATE DELIVERED:

17 June 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan JR

HEARING DATE:

17 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. Levy

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT:

Mr B. Levet

SOLICITOR FOR THE RESPONDENT:

Segal & Associates

Orders

Leave to the parties to inspect documents produced on a call by the husband.
Orders are made in terms of paragraphs 1, 2, 3, 4, 5, 6, 7, 9 and 10 of the document titled “Minute of Order Sought by the Wife” marked Exhibit A. IT IS NOTED that orders in terms of paragraphs 3, 5 and 9 are by consent.
That the husband pay the costs of the wife of and incidental to this Application and these proceedings today. Those costs to be as agreed or assessed by a taxing officer and are to be paid, unless the parties agree to the contrary, within 28 days after that agreement or assessment.
The Court requested that the Registry Manager hold the passports of the husband pending further order.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1876 of 2008

MS LOVELL

Applicant

And

MR LOVELL

Respondent

REASONS FOR JUDGMENT

These are proceedings in the shadow of property proceedings between the parties. I understand the husband and wife are both 64 years of age. The husband practices a profession and the wife the practice manager for his practice. The parties have been married and divorced and married again. They first married I think in June 1970 and they were most recently married in December 1998. They separated in December 2006. They have at least two children. I been asked to read one affidavit for each of the parties and they do not give a full history. S is mentioned in the wife's first affidavit. There is reference to R. I think S might be 37, I do not know how old R is. I gather he is an adult because I was told today he manages some properties for the parties.
These proceedings were started in April 2008 by the wife. There have been a number of occasions when directions have been made to prepare the matter for a Conciliation Conference, which is the first resolution step in our process, apart from a Case Assessment Conference. Those directions are yet to be complied with. I am told that later this month there is a mention date to see about appointing a Conciliation Conference for the case.
The wife says that over about 25 years…

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 Lovell and Lovell

Details

AGLC: Lovell and Lovell [2009] FamCA 982
Case: [2009] FamCA 982
Decision Date: 17 June 2009

CaseChat Overview and Summary

In the matter of *Lovell and Lovell*, Loughnan JR of the Family Court of Australia considered an application concerning property settlement and associated costs. The dispute involved the husband and wife, with the court ultimately making orders regarding the inspection of documents, property division, and the husband's responsibility for the wife's legal costs. The court also made a specific order concerning the holding of the husband's passports.

The primary legal issues before the court were the terms of the property settlement between the parties and the allocation of costs. The court was required to determine the specific orders to be made in relation to the division of assets and liabilities, and to decide whether the husband should bear the costs of the wife's application and proceedings. The court also had to consider the necessity of retaining the husband's passports.

Loughnan JR made orders reflecting a consent agreement between the parties on certain aspects of the property settlement, as detailed in a Minute of Order sought by the wife. The court also granted leave for the parties to inspect documents produced by the husband. Crucially, the court ordered that the husband pay the wife's costs of and incidental to the application and proceedings, to be agreed or assessed and paid within 28 days. Furthermore, the court directed the Registry Manager to hold the husband's passports pending further order, indicating a concern for ensuring compliance with future directions or orders.

Orders

Orders of the court

Leave to the parties to inspect documents produced on a call by the husband.

Orders are made in terms of paragraphs 1, 2, 3, 4, 5, 6, 7, 9 and 10 of the document titled “Minute of Order Sought by the Wife” marked Exhibit A. IT IS NOTED that orders in terms of paragraphs 3, 5 and 9 are by consent.

That the husband pay the costs of the wife of and incidental to this Application and these proceedings today. Those costs to be as agreed or assessed by a taxing officer and are to be paid, unless the parties agree to the contrary, within 28 days after that agreement or assessment.

The Court requested that the Registry Manager hold the passports of the husband pending further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.