FAMILY COURT OF AUSTRALIA
| MCDERMOTT & MCDERMOTT | [2014] FamCA 245 |
| FAMILY LAW – PROPERTY – Interim proceedings – Reasons for making certain Orders consented to by the wife and not opposed by the husband |
| Family Law Act 1975 (Cth) |
| Martin & Martin and Ors [2013] FamCA 222 |
| APPLICANT: | Mr McDermott |
| RESPONDENT: | Ms McDermott |
| FILE NUMBER: | SYC | 70 | of | 2014 |
| DATE DELIVERED: | Orders made on 18 March 2014; Judgment delivered on 14 April 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 17 and 18 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kenny |
| SOLICITOR FOR THE RESPONDENT: | Campbell Paton & Taylor |
Orders
That within seven days from the date of these orders the Husband shall provide to the Wife’s solicitors the following information and do the following things in relation to any work from 1 July 2013 to date that the Husband has undertaken on his own behalf, on behalf of B Pty Ltd (“the company”) or on behalf of any other entity that is of a similar nature or type of work to the work undertaken by the company in the normal course of its business:
(a)A list of particularising all such work undertaken including the name of the person or entity for whom the work was undertaken, the dates between which the work was undertaken, the amount of money paid or to be paid for all such work and particulars of the financial institution and account into which the money was or was intended to be paid;
(b)A list of all amounts of money which remain to be paid and direct the person or entity responsible for payment to make those payments into the company’s account at the National Australia Bank are being account …20 (“the NAB account”);
(c)Pay into the NAB account all the money presently held by him or under his control with respect to the work particularised by him in the list provided pursuant to (a) above less money paid from funds held by him or under his control properly expended in the usual course of business of the company.
That within seven days from this date the Husband and Wife authorise and direct the appropriate officer of the National Australia Bank to permit the Husband and the Wife to operate the NAB account independently of each other for the purposes of the usual course of business of the company and do all things necessary to facilitate each of them having internet banking access to the said account.
That the Husband and Wife shall pending further order facilitate all income received by the company in the usual course of business being paid into the NAB account from which payments in the ordinary course of business or pursuant to these orders shall be made.
That pending further order the Wife shall have the conduct of and manage on a day-to-day basis the farming enterprise conducted at the D…
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- AGLC
- McDermott & McDermott [2014] FamCA 245
- Case
- [2014] FamCA 245
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining a range of issues concerning the financial affairs of the parties and their associated entities. These included the disclosure of financial information, the operation of bank accounts, the management of business enterprises, the restraint on undertaking certain work, and the drawing of funds for living expenses and legal costs. Furthermore, the court needed to address the preservation of assets, the exchange of financial documentation, and the appointment of valuers to determine the worth of various assets, including real estate, plant, equipment, livestock, and business interests.
In its reasoning, the court applied principles of family law concerning the preservation of marital assets and the equitable distribution of financial resources. The orders made reflect a careful balancing of the parties' immediate needs for living expenses and legal representation, while simultaneously safeguarding the value of the company and farming enterprise. The court imposed significant restraints on the Husband's ability to undertake work similar to that of the company and restricted the disposal of assets without prior notice. The detailed provisions for the operation of the company's bank account and the appointment of independent valuers underscore the court's intention to ensure transparency and facilitate a fair resolution of the financial aspects of the marriage breakdown.
The court made extensive interim orders, including requiring the Husband to provide detailed financial information regarding his work, directing payments into a specific company bank account, and authorising both parties to operate this account independently for business purposes. The Wife was granted conduct of the farming enterprise, and the Husband was granted conduct of the B Pty Ltd enterprise, with both restrained from operating outside the ordinary course of business. The Husband was also restrained from undertaking work of a similar nature to that of the company. Both parties were permitted to draw specified weekly sums for living expenses and contributions to governess costs, with further provisions for legal fees. The court also ordered the appointment of single expert valuers to assess various assets and liabilities, with detailed procedures for their nomination, selection, and instruction. The proceedings were adjourned for further directions.
Orders
Orders of the court
1. That within seven days from the date of these orders the Husband shall provide to the Wife’s solicitors the following information and do the following things in relation to any work from 1 July 2013 to date that the Husband has undertaken on his own behalf, on behalf of B Pty Ltd (“the company”) or on behalf of any other entity that is of a similar nature or type of work to the work undertaken by the company in the normal course of its business:
(a) A list of particularising all such work undertaken including the name of the person or entity for whom the work was undertaken, the dates between which the work was undertaken, the amount of money paid or to be paid for all such work and particulars of the financial institution and account into which the money was or was intended to be paid;
(b) A list of all amounts of money which remain to be paid and direct the person or entity responsible for payment to make those payments into the company’s account at the C bank are being account …(“the C Bank account”);
(c) Pay into the C Bank account all the money presently held by him or under his control with respect to the work particularised by him in the list provided pursuant to (a) above less money paid from funds held by him or under his control properly expended in the usual course of business of the company.
2. That within seven days from this date the Husband and Wife authorise and direct the appropriate officer of the C Bank to permit the Husband and the Wife to operate the C Bank account independently of each other for the purposes of the usual course of business of the company and do all things necessary to facilitate each of them having internet banking access to the said account.
3. That the Husband and Wife shall pending further order facilitate all income received by the company in the usual course of business being paid into the C Bank account from which payments in the ordinary course of business or pursuant to these orders shall be made.
4. That pending further order the Wife shall have the conduct of and manage on a day-to-day basis the farming enterprise conducted at the D Street, E Town property and the Wife shall be restrained from conducting the said farming enterprise other than in the ordinary course of business and through the company.
5. That pending further order the Husband shall have the conduct of and manage on a day-to-day basis the B Pty Ltd enterprise conducted during the course of the marriage by the company and the Husband shall be restrained from conducting the said B Pty Ltd enterprise other than in the ordinary course of business and through the company.
6. That pending further order the Husband is restrained on his own behalf or on behalf of any other entity save for the company from undertaking any work of the type or nature of the work that has been at any time prior to the date of these orders undertaken or engaged in by the company in the ordinary course of its business.
7. That pending further order the Husband is at liberty to draw from the company’s C Bank account $2660 per week gross with such sum to cover his general living expenses and a contribution by him to one half of the cost of the governess employed by the parties for the children of the marriage with the characterisation of those drawings reserved to trial or as agreed by the parties.
8. That pending further order the Wife is at liberty to draw from the company’s C Bank account the sum of $2660 per week gross with such sum to cover her general household living expenses and a contribution by her to one half of the cost of the governess employed by the parties for the children of the marriage with such sum to be reduced by an amount equivalent to any child support assessment liability in respect of which the Husband is assessed from time to time and is paid by him when due and payable with the characterisation of those drawings reserved to trial or as agreed by the parties.
9. That both the Husband and Wife shall be at liberty to draw from the company’s C Bank account sums not exceeding $100,000 in total for each of them with such sums to be paid exclusively for their legal fees in these proceedings and that there shall be no drawings in excess of that sum without leave of the Court or the parties agreement in writing,
10. That the Husband and Wife shall authorise and direct Mr F of G & F, Accountants to provide to the Wife’s nominated accountant such documents as he or she may reasonably request and to answer any reasonably le enquiries made about the accounts of the business or the party’s personal taxation affairs as made by the Wife’s nominated accountant with the costs of G and F, Accountants in relation to such requests and the costs of the Wife’s nominated accountant to be paid by the company.
11. That the Husband and Wife shall authorise and direct Mr F of G & F, Accountants to provide to the Wife’s solicitors such documents as they may reasonably request in writing and to answer any reasonable enquiries made about the accounts of the business and the parties personal taxation affairs made by the wife’s solicitors with the costs of G and F, Accountants in relation to such requests to be paid by the company and the Wife shall ensure that a copy of such request is provided to the Husband’s solicitors.
12. That pending further order and save and except for any items of property agreed in writing by the parties to be sold each of the parties is restrained from selling, transferring or otherwise disposing of or mortgaging, charging or encumbering or further mortgaging, charging or encumbering any property of the company or the partnership, or any property held in their sole name is or jointly with each other or with any other person or entity otherwise than in the ordinary course of business without first giving the other party seven days’ notice in writing of their intention to do so.
13. That on not less than a calendar monthly basis, and in the event of disagreement as to the date on or before the third Friday of each month, the parties shall disclose by exchange any relevant documents in respect of any transaction that has taken place in the ordinary course of operation of the separate business enterprises managed by each of them in the company in the preceding calendar month.
14. That in the event that the Husband incurs any debt or authorises any expenditure on behalf of the company or the farming partnership to a value in excess of $25,000, the Husband must provide to the Wife not less than 48 hours’ notice of his intention to do so save and except in urgent circumstances involving the replacement or urgent repair of plant and machinery that is on site.
15. That in the event that the Wife incurs any debt or authorises any expenditure on behalf of the company or the farming partnership to a value in excess of $5000 the Wife must provide to the Husband not less than 48 hours’ notice of her intention to do so save and except in urgent circumstances involving the replacement or urgent repair of plant, machinery or other equipment that is required for the ongoing operation of the farming partnership.
16. That in the event that the Husband has since 1 July 2013 sold or otherwise disposed of any plant, equipment or machinery owned by him or in which the company had any interest whatsoever then he must promptly but no later than 28 days from the date of these orders provide to the Wife:
(a) A list of items sold and all documents instruments and writings in relation to wall such sales; and
(b) In the event that sale proceeds were not paid into the C Bank account pay within 28 days from this date such sale proceeds received by him into the C Bank account and do all necessary things to direct the purchaser of any items sold for which any amount remains unpaid to make remaining payments for the purchase into the C Bank account.
17. That the Husband is hereby restrained from attending at or upon the property at Street, E Town without giving to the Wife not less than 72 hours prior notice of his intention to do so and on any such attendance the Husband shall be accompanied by Mr H and no other person or persons except as provided for in these orders or with the written consent of the Wife.
18. That the Husband is restrained from flying in or through the air space over the D Street, E Town property except with the consent in writing of the Wife.
19. That, save as hereinafter provided, the Husband is hereby restrained from removing any chattels, equipment and machinery from the property at D Street, E Town without the written consent of the Wife.
20. That upon the Husband giving not less than 72 hours’ notice to the Wife he shall be at liberty to arrange for a suitably qualified mechanic to attend at the E Street property to inspect and attend to rendering airworthy the aeroplane thereon and that thereafter upon giving to the Wife not less than 72 hours’ notice the Husband shall be at liberty to attend at the said property provided always that he is accompanied by Mr H to collect the aeroplane and remove it from the said property and for the purposes of this order the Husband’s notice to the Wife shall be in writing which shall include SMS or email communication.
21. That the Husband and Wife shall keep in good order and repair and shall be restrained from causing any damage (or further damage) to any building or a construction on the D Street property (including but not limited to the homestead) or the I Town property and any plant or equipment of the company or partnership “including vehicles” and any other property in their respective possession.
22. That the Wife is restrained from allowing any other person, save for herself to operate the utility or 4WD motor vehicles in her possession unless those persons are properly licensed to do so in the State of New South Wales and/or any other state or territory of Australia and the Husband shall ensure that the said vehicles are at all times registered and insured.
23. That within one calendar month from the date of these orders the solicitors for the Husband and Wife shall on the parties instructions confer for the purpose of endeavouring to reach agreement as to the value of assets, liabilities, financial resources and superannuation entitlements of the parties and if there is no agreement as to the valuation of any such items then a single expert witness shall be appointed to determine the value of any disputed item and the Husband shall nominate three single expert’s to prepare written valuation reports as to the market value of:
(a) The real estate held by the parties, whether solely, jointly, with any other person or entity or whether held by any entity in which the parties have a proprietary interest;
(b) The plant, equipment motor vehicles and machinery of the company including the partnership and otherwise the enterprises of the parties or as may be held in their names whether solely or jointly with any other person or entity;
(c) The livestock of the company, including the partnership and otherwise the enterprises of the parties or as may be held in their names whether solely or jointly or with any other person or entity;
(d) The furniture, furnishings and effects of the parties;
(e) The interests of the parties in the company including the partnership.
24. That within 14 days from the Husband nominating three valuers as provided for hearing the Wife shall select one of the nominated valuers for such purposes.
25. That within a further 14 days from the Wife selecting a valuer or valuers as provided for herein the parties shall instruct their solicitors to forward an agreed joint letter of instruction to the single expert to be appointed and the parties are granted liberty to relist the matter on seven days notice to the Court and to the other party in respect of any issue arising in relation to the joint letter of instruction to the single expert to be appointed.
26. That the parties shall pay in the first instance in equal shares for the payment of the reasonable fees and disbursements of any single expert appointed pursuant to these orders with the ultimate liability for such reasonable fees and disbursements reserved to trial or agreement between the parties.
27. That for the purposes of the appointment of the single experts and the tasks to be undertaken by the appointed single experts:
(a) The Wife shall provide to any single expert appointed, in a timely manner, copies of all documents in her possession, custody or control as may be requested by that single expert with copies of such documents to be provided to the Husband’s solicitors;
(b) That the Husband shall provide to any single expert appointed, in a timely manner, copies of all documents in his possession, custody or control as may be requested by that single expert with copies of such documents to be provided to the Wife’s solicitors;
(c) That each party shall make available for inspection by any appointed single expert all items that are to be valued pursuant to these orders and each party shall provide access to each item without restriction for the purposes of such inspection by the single expert;
(d) That at all times all instructions to any single expert appointed shall be in writing and issued jointly on behalf of both parties.
28. That for the purposes of any written notice to be provided by either of the parties to the other then such notice shall be in writing with such writing to include SMS or email communication or correspondence or email communication between the parties respective solicitors.
29. That otherwise interim applications before the Court are dismissed.
30. That these proceedings be adjourned to a listing before the Docket Registrar on Thursday 29 May 2014 at 9:30 am and on such a listing the Docket Registrar make such other further orders or directions as may be appropriate for the matter to proceed to a Conciliation Conference at a time when there remains no outstanding valuation issue between the parties.
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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