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Manellis & Andreou (No 4)

Manellis & Andreou (No 4)

Case [2022] FedCFamC2F 1289 26 September 2022

Interim Property Distribution

Transfer of Proceedings

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Manellis & Andreou (No 4) [2022] FedCFamC2F 1289

File number: PAC 2845 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 26 September 2022

Catchwords:
FAMILY LAW – PROPERTY – Interim distribution – Where the husband has made financial and non-financial contributions to the property pool – Where the Court is satisfied it is in the overarching interests of justice to exercise an interim property power – Orders made.

FAMILY LAW – PROPERTY – Injunctions – Preservation of property – Where the wife unilaterally dispensed with the husband’s involvement in the companies – Where it is just and convenient to restrain both parties from increasing the liabilities of the parties so as to preserve the asset pool pending final hearing – Injunctive orders made.

FAMILY LAW – PROPERTY – Exclusive occupation of the former matrimonial home – Where there are interim Orders for the children to live with the husband – Where the wife consents to the husband having exclusive occupation of the home – Order made for the wife to vacate the property.

FAMILY LAW – PROPERTY – Payments related to the property – Where the mortgage and other outgoings are paid for by either the corporation or the Trust – Where the wife has control of the corporations – Where it is reasonable and proper for the property of the parties to maintain the former matrimonial home pending final hearing – Orders made as sought by the husband.

FAMILY LAW – PROPERTY – Spousal maintenance – Where the husband has the care of the three children – Where the husband will have sole occupation of the former matrimonial home – Where the husband had been working for the businesses of the parties of which the wife has now removed him as director – Where the wife is currently voluntarily paying the husband a sum of money and pays in excess of a child support assessment – Consideration of the husband’s reasonable needs – Orders made for spousal maintenance.

FAMILY LAW – PROPERTY – Where the husband seeks that the parties enter into a lease agreement to facilitate the running of a business – Where it is not the role of the court to make commercial decisions for the parties – Application dismissed.

FAMILY LAW – CHILDREN – Costs – Husband’s application for costs in relation to the wife’s failed attempt to re-litigate parenting issues – Where the wife’s application was summarily dismissed and the husband was wholly successful – Order made for the wife to pay the husband’s costs.

FAMILY LAW – Proceedings transferred to Division 1.

Legislation:
Family Law Act 1975 (Cth) ss 74, 75, 79, 80, 114, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 6, r 1.04

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1

Cases cited:
Bevan & Bevan (1995) FLC 92-600

Black v Kellner (1992) FLC 92-287

Felice & Felice

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 Manellis & Andreou (No 4)

Details

AGLC: Manellis & Andreou (No 4) [2022] FedCFamC2F 1289
Case: [2022] FedCFamC2F 1289
Decision Date

CaseChat Overview and Summary

The proceedings were commenced by the husband filing an Initiating Application on 26 May 2021 seeking parenting orders only. The wife was legally represented when the proceedings were commenced. The husband filed a further Amending Initiating Application on 3 August 2022 adding property issues to the proceedings. On the same date, the husband filed an Application in a Proceeding seeking an urgent listing on short notice of the current interim application. On 11 August 2022 the wife was legally represented when directions were made and the interim property application was listed for interim hearing on 7 September 2022. The wife was directed to file and serve her response material and evidence in support of the relief sought by her by no later than 4:00 pm on 1 September 2022. The wife’s solicitors filed a notice of Ceasing to Act on 25 August 2022. The wife was granted leave to appear at the interim hearing by video conference. The wife did not attend the interim hearing on 7 September 2022 despite the wife being granted leave to appear at such interim hearing by video conference in circumstances where she had forwarded ex parte correspondence to Chambers attaching a screenshot of a COVID 19 positive rapid antigen test and a medical certificate. The matter was adjourned for hearing to 13 September 2022. The husband was directed to file and serve a proposed Minute of Order particularising the orders he sought at the interim hearing by no later than 5:00 pm on 7 September 2022. The husband filed his proposed Minute of Orders as directed. The wife did file a Response; such response did not address the relief sought by the husband but sought a further adjournment of the interim hearing listed 13 September 2022. The wife filed four affidavits, one of which totalled 157 pages in length including annexures. The wife did not file a Financial Statement in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). It does not appear to be in dispute that the wife has not provided financial disclosure pursuant to the Rules nor as specifically requested by the husband. The husband relied upon the Application in a Proceeding filed 3 August 2022; the affidavit of the husband filed 3 August 2022; the husband’s Financial Statement filed 3 August 2022; paragraphs 21 and 22 of the husband’s affidavit filed 12 September 2022 (with the Court’s leave); the husband’s Proposed Minute of Orders filed 7 September 2022 marked as exhibit H2; the husband’s Costs Notice filed 12 September 2022; and the Case Outline filed 5 September 2022. During the course of the interim hearing the wife advised she opposed the orders sought by the husband save for the order for sole use and exclusive occupation of the AC Street, Suburb G property. The wife relied upon the Response to an Application in a Proceeding filed 11 September 2022; and the affidavit filed by the wife on 12 September 2022 at 9:36 am. The husband submitted that it was appropriate to exercise the Court’s discretion pursuant to s 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”) to pay a lump sum of $100,000 by way of interim property distribution. The husband submitted that the wife had control over the parties’ companies and unilaterally determined the husband’s income. The husband submitted that there was a source of funds for the lump sum payment sought and that such lump sum could be taken into consideration upon the finalisation of the parties’ property proceedings. The wife submitted that the parties agreed that the wife would operate AE Pty Ltd Suburb AO and the husband would operate AE Pty Ltd City AR. The wife submitted that the husband had been withdrawing funds unilaterally and she became concerned that the businesses would not be able to meet their financial obligations. She submitted that the husband had been paid monthly shareholder distributions of $8,000 a month in addition to other expenses including payment of his credit cards, rental and car expenses. The wife submitted that there was a decline in income from the businesses. I found that the husband has made both financial and non-financial contributions to the property pool. I found that it is in the overarching interests of justice for the Court to exercise an interim property power at this time and pay to the husband the lump sum sought of $100,000. I found that the wife has control over the parties’ companies and unilaterally determines the husband’s income. I found that there is a source of funds for the lump sum payment sought and that such lump sum could be taken into consideration upon the finalisation of the parties’ property proceedings. I found that having regard to the alleged value of the asset pool there are sufficient funds in the property pool to support the interim payment being made now and will not defeat the wife’s claim for property settlement even potentially taking into account the sums of money disbursed to the husband post-separation. I made the order as sought by the husband. The husband submitted that it was appropriate to exercise the Court’s discretion to restrain both parties from dealing with any joint accounts or joint offset accounts to preserve the asset pool in circumstances where the wife unilaterally dispensed with the husband’s involvement in the companies. The wife consented to orders being made restraining both parties from dealing with any joint accounts or joint offset accounts, including redrawing or increasing the loans with respect to the two Commonwealth Bank loan facilities. I found it was just and convenient to restrain both parties from increasing the liabilities of the parties so as to preserve the asset pool pending final hearing. I made the order as sought by the husband. The husband submitted that it was appropriate to exercise the Court’s discretion to grant him sole use and exclusive occupation of the AC Street, Suburb G property. The wife advised the Court that she was willing to leave the AC Street, Suburb G property so that the children can move back into it and are more comfortable. The wife asked that the Court allow 28 days rather than the 21 days sought by the husband to arrange for the relocation of herself and her mother. I found it was appropriate to allow the wife 30 days to vacate the property. I found that it was not appropriate to restrain the wife from removing any furnishings or contents save for the clothing and personal effects of her mother and herself. I did not make such an order. The husband submitted that it was appropriate to exercise the Court’s discretion to restrain the wife from removing any furnishings or contents save for the clothing and personal effects of her mother and herself. I found that there was not a sufficient evidentiary foundation to restrain the wife from removing the furniture and other items she had had the sole use of since July 2020. I did not make such an order. It is a matter for the wife as to any items she may wish to leave for the children at the AC Street, Sub

Orders