Meeks and Meeks and Anor - [2019] FCCA 638

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEEKS & MEEKS & ANOR

[2019] FCCA 638

Catchwords:
FAMILY LAW – Property proceedings – application for injunction restraining wife dealing with discretionary trust – purpose of the injunction is to maintain the current status quo – just and convenient – Mareva or asset protection injunction – balance of convenience – risk of asset dissipation – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.4(1)(e), 75(2)(m), 90AF, 114

Cases cited:

G & T (2004) FLC 93-176
Waugh & Waugh (2000) FLC 93-052
M & DB (2006) FLC 93-293
Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyds Rep 509
Cardile v LED Builders Pty Ltd[1](1999) 198 CLR 380
Clout (Trustee) v Anscore Pty Ltd & Ors [2000] FCA 727
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Lampros & Anor & Lampros & Anor [2012] FamCA 415
Kennon v Spry (2008) 238 CLR 366

Applicant:

MR MEEKS

First Respondent:

MS MEEKS

Second Respondent:

COMPANY [A] PTY LTD

File Number:

ADC 5045 of 2018

Judgment of:

Judge Brown

Hearing date:

7 March 2019

Date of Last Submission:

7 March 2019

Delivered at:

Adelaide

Delivered on:

15 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr McGinn

Solicitors for the Applicant:

Dickson Wright Lawyers

Counsel for the First Respondent:

Ms Diamantopoulos

Solicitors for the First Respondent:

Welden & Colucio Lawyers

Counsel for the Second Respondent:

Ms Pyke QC

Solicitors for the Second Respondent:

Welden & Colucio Lawyers

ORDERS

That interim orders 1, 2 & 3 sought by the Husband in the Initiating Application filed 5 December 2018 be dismissed.
Any application for costs by the First and Second Respondents for cost be made within 28 days of today’s date.
Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 5 June 2019 at 11am.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
The respondent file and serve a statement of her financial circumstances within 14 days of today’s date.
No later than 22 May 2019 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.
No later than 29 May 2019 the parties exchange all valuations or appraisals of any assets of property in dispute between them both real and personal together with all relevant financial documents as specified in Rule 24.03 of the Federal Circuit Court Rules.
Further consideration of the matter is adjourned to 11 June 2019 at 9:30am

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT

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 Meeks and Meeks and Anor

Details

AGLC: Meeks and Meeks and Anor [2019] FCCA 638
Case: [2019] FCCA 638
Decision Date: 15 March 2019

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Brown considered an application by the Husband for an interim injunction to restrain the Wife from dealing with a discretionary trust. The Husband sought this injunction to maintain the status quo of the parties' assets pending final property proceedings.

The primary legal issue before the Court was whether to grant the interim injunction sought by the Husband. This required the Court to consider the principles applicable to Mareva or asset protection injunctions, specifically whether it was just and convenient to grant such an order and to assess the balance of convenience, including the risk of asset dissipation.

Judge Brown dismissed the Husband's application for interim orders. The Court did not find sufficient grounds to grant the injunction, implying that the threshold for demonstrating a risk of dissipation or the necessity of maintaining the status quo through such an order was not met. The Court then made various procedural orders, including dismissing the application for interim orders, setting a timeframe for costs applications by the respondents, directing the parties to attend a conciliation conference, and outlining requirements for the exchange of financial information and discovery. Further consideration of the matter was adjourned.

Orders

Orders of the court

That interim orders 1, 2 & 3 sought by the Husband in the Initiating Application filed 5 December 2018 be dismissed.

Any application for costs by the First and Second Respondents for cost be made within 28 days of today’s date.

Pursuant to Section 26 of the Federal Circuit Court of Australia Act 1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 5 June 2019 at 11am.

Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

The respondent file and serve a statement of her financial circumstances within 14 days of today’s date.

No later than 22 May 2019 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.

No later than 29 May 2019 the parties exchange all valuations or appraisals of any assets of property in dispute between them both real and personal together with all relevant financial documents as specified in Rule 24.03 of the Federal Circuit Court Rules.

Further consideration of the matter is adjourned to 11 June 2019 at 9:30am

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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