Medlow and Medlow (No 3) - [2014] FamCA 760

FAMILY COURT OF AUSTRALIA

MEDLOW & MEDLOW (NO 3)

[2014] FamCA 760

FAMILY LAW – PROPERTY – Interim – Stay – Where the husband seeks to enforce and vary aspects of previous interlocutory orders – Where the wife has filed an application for leave to appeal previous interlocutory orders – Where in aid of her appeal, the wife seeks a stay of aspects of the orders, and if not successful, interim financial orders – Where interim orders provided for the husband to receive $2,900,000 from joint funds – Where the husband is involved in significant litigation in other jurisdictions – Whether the interim orders made would contribute to the wife’s claims for property settlement being frustrated – Where orders are made aimed at ensuring joint funds are only paid out for necessary purposes – Where orders are made for interim property settlement and spousal maintenance to the wife – Where various orders are stayed on condition, pending the determination of the wife’s application for leave to appeal.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Medlow

RESPONDENT:

Ms Medlow

FILE NUMBER:

SYC

7742

2010

DATE DELIVERED:

11 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

5 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

Pending further order, orders are made in terms of the orders sought at paragraphs 4, 5 and 6 of the Application in a Case filed 21 August 2014 as follows:
4.That upon settlement of the sale of B Street, Suburb C, and in addition to paragraph (1) 6 of the Orders dated 18 July 2014 but particularly (1) 6.4 of those Orders, the further amount of $1,250,000 be received by the Husband, such that the amount the Husband is to receive in total pursuant to those orders and these Orders is the amount of $2,900,000.
5.That the Husband be at liberty to apply the funds to be received in accordance with paragraph 4 herein, and paragraph (1) 6.4 of the Orders dated 18 July 2014, and that for the purposes of this Order, paragraph 5.5 of the Orders dated 8 April 2014 be and is hereby varied to read as follows:
“5.5Such other purposes, at the Husband’s discretion.”
6.That the Husband shall by no later than 4.00 pm on the last Friday in each calendar month, ensure that documentary evidence as to the application of the funds to be received pursuant to the Orders dated 18 July 2014, be provided to the Wife.
Unless they otherwise agree in writing the parties are to forthwith do all things and sign all documents to cause the following payments to the wife from the net proceeds of sale of the property at B Street, Suburb C:
(a)$150,000 by way of interim property settlement; and
(b)$168,000 by way of interim spousal maintenance for the accommodation of the wife in Australia.
Pending…

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.

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Details

Case: [2014] FamCA 760
Decision Date: 11 September 2014

CaseChat Overview and Summary

In this matter before Loughnan J, the husband sought to enforce and vary previous interlocutory orders, while the wife had filed an application for leave to appeal those same orders. In support of her appeal, the wife sought a stay of certain aspects of the orders, and alternatively, interim financial orders. The dispute centred on interim orders that provided for the husband to receive $2,900,000 from joint funds, at a time when the husband was involved in significant litigation in other jurisdictions. The wife contended that these interim orders risked frustrating her claims for property settlement.

The court was required to determine whether the interim orders, as they stood, would prejudice the wife's ability to pursue her property settlement claims. It also needed to consider the wife's application for a stay of certain orders pending the determination of her application for leave to appeal, and if leave were granted, her substantive appeal. Furthermore, the court had to decide on appropriate interim financial provision for the wife and establish conditions for the disbursement of joint funds to ensure they were used for necessary purposes.

Loughnan J reasoned that orders should be made to safeguard joint funds and ensure they were only paid out for necessary purposes. The court applied principles relating to the need for interim orders to protect a party's claim in property settlement proceedings, particularly where there was a risk of dissipation of assets or frustration of claims. The court also considered the wife's need for interim financial relief and spousal maintenance.

The court made orders that varied the husband's entitlement to $2,900,000 from joint funds, with specific provisions for the application of these funds and a requirement for documentary evidence of their use to be provided to the wife. Additionally, the court ordered payments to the wife by way of interim property settlement and interim spousal maintenance. Crucially, the operation of certain aspects of the husband's entitlement and the disbursement of the $2,900,000 fund were stayed pending the determination of the wife's application for leave to appeal and any subsequent appeal, subject to the wife prosecuting her appeal competently and with expedition.

Orders

Orders of the court

Pending further order, orders are made in terms of the orders sought at paragraphs 4, 5 and 6 of the Application in a Case filed 21 August 2014 as follows:

4. That upon settlement of the sale of B Street, Suburb C, and in addition to paragraph (1) 6 of the Orders dated 18 July 2014 but particularly (1) 6.4 of those Orders, the further amount of $1,250,000 be received by the Husband, such that the amount the Husband is to receive in total pursuant to those orders and these Orders is the amount of $2,900,000.

5. That the Husband be at liberty to apply the funds to be received in accordance with paragraph 4 herein, and paragraph (1) 6.4 of the Orders dated 18 July 2014, and that for the purposes of this Order, paragraph 5.5 of the Orders dated 8 April 2014 be and is hereby varied to read as follows:

“5.5 Such other purposes, at the Husband’s discretion.”

6. That the Husband shall by no later than 4.00 pm on the last Friday in each calendar month, ensure that documentary evidence as to the application of the funds to be received pursuant to the Orders dated 18 July 2014, be provided to the Wife.

Unless they otherwise agree in writing the parties are to forthwith do all things and sign all documents to cause the following payments to the wife from the net proceeds of sale of the property at B Street, Suburb C:

(a) $150,000 by way of interim property settlement; and

(b) $168,000 by way of interim spousal maintenance for the accommodation of the wife in Australia.

Pending the determination of the wife’s application for leave to appeal and if leave is granted, the appeal in the Notice of Appeal EA 106/2014 filed 12 August 2014, the operation of order 1(5) herein is stayed.

Pending the determination of the wife’s application for leave to appeal and if leave is granted, the appeal in the Notice of Appeal filed 12 August 2014, the operation of order 1.6.4 of the orders made on 18 July 2014 as otherwise amended by order 1 herein, is stayed to the effect that payments from the $2,900,000 fund established thereby shall, unless the parties otherwise agree in writing, only be paid out as follows:

(a) Forthwith to:

(i) P Business Advisers $26,175.35

(ii) The payees identified in the table $82,529.73

“Lawyers Accounts Outstanding” in annexure I

to the affidavit of the husband filed

3 September 2014

(iii) The payees identified in the table $1,040,110

“Criminal Legal Fees” in that annexure

(iv) The payees in accordance with $278,954.90

the table “[Ms Medlow] Maintenance”

in that annexure, save for the last item

in the table.

(b) As and when they fall due:

(i) under the orders of 16 March 2011 or otherwise to the payees in accordance with the table in that annexure “[Mr Medlow and Mr E and J] General Accounts” at $42,260.18 per month; and

(ii) pursuant to the orders of 16 March 2011 to the wife for her maintenance at $81,000 per quarter but in the event that the husband is in default for 48 hours of his obligation to pay $81,000 each quarter to the wife for her maintenance is, then forthwith on the first such default from the date of these orders, the balance of the 12 months maintenance owing from the date of this order, will fall due and will be forthwith paid to the wife by the husband.

(c) For legal fees for the husband’s criminal proceedings on invoice, on the due date, provided that the husband shall provide the wife with a copy of the applicable invoice as soon as practicable and in any event at least 14 days before the due date.

The stays granted by these orders are conditional on the wife prosecuting her application for leave to appeal and if relevant her appeal, competently and with expedition.

The parties are at liberty to otherwise disburse the proceeds of sale of the Suburb C property as agreed between them in writing.

Leave is granted to the parties to apply on giving seven days notice to the Court and each other in relation to these orders.

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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