Merlo & Merlo - [2021] FedCFamC1F 63

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Merlo & Merlo [2021] FedCFamC1F 63

File number(s): BRC 2012 of 2019

Judgment of: BAUMANN J

Date of judgment: 21 September 2021

Catchwords: FAMILY LAW – PROPERTY – INTERIM – Where the Applicant seeks injunctions against both the First Respondent husband and Second Respondent, restraining them from selling or otherwise dealing with assets or interests overseas – Order made for the First Respondent to provide notice to the Applicant of any intention to sell a personal asset or interest and any significant asset of the corporation or its subsidiaries – Order made for Second Respondent provide notice to the Applicant of an intention to sell or otherwise deal with property interests

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Patton & Patton [2015] FamCA 1083

Tsiang & Wu & Ors (2019) FLC 93-911

Division: Division 1 First Instance

Number of paragraphs: 35

Date of hearing: 14 October 2020

Place: Brisbane

Counsel for the Applicant: Ms C Dart

Solicitor for the Applicant: HopgoodGanim Lawyers

Counsel for the First Respondent: Mr T Kirk QC

Solicitor for the First Respondent: Barry.Nilsson Lawyers

Solicitor for the Second Respondent: Genuine Legal
ORDERS

BRC 2012 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DENNETT AS LEGAL PERSONAL REPRESENTATIVE SUBSTITUTED FOR MS MERLO (DECEASED)

Applicant

AND:
MR MERLO

First Respondent

MS ILYN

Second Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

21 SEPTEMBER 2021

THE COURT ORDERS:
1.That these proceedings be adjourned for Case Management Hearing at 2.00pm (Queensland time) on 8 October 2021 in the Federal Circuit and Family Court of Australia Division 1 at Brisbane.
2.That the Applicant’s solicitor provide to the First Respondent and Second Respondent a draft minute of order consistent with the Reasons for Judgment delivered 21 September 2021.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merlo & Merlo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:

A somewhat complex relationship history has emerged following the commencement of property settlement proceedings by an application filed 21 February 2019, in which Ms Merlo sought 60% of the combined interests that she said accumulated during a marriage with Mr Merlo (“the husband”) currently 78 years of age, solemnised in Country B in 1968.
It…

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 Merlo & Merlo

Details

AGLC: Merlo & Merlo [2021] FedCFamC1F 63
Case: [2021] FedCFamC1F 63
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia (Division 1) in Merlo & Merlo involved a complex property settlement application filed by Ms Merlo, seeking 60% of the combined interests she claimed accumulated during her marriage to Mr Merlo. Following Ms Merlo's death, her daughter, Ms Dennett, as executor under the will, continued the proceedings. The application sought various declarations and injunctions against Mr Merlo and his new wife, Ms Ilyn, regarding the ownership and sale of assets, both in Australia and overseas. The court was required to determine whether injunctions should be granted to prevent the sale or dealing with assets overseas, as well as other relief sought by Ms Dennett.

The court assessed the application under the principles for granting injunctions in family law matters, which include a likelihood of success, the balance of convenience, and the need to prevent dissipation of assets. The court found several hurdles to granting the injunctions sought against Mr Merlo, including the lack of evidence regarding the value of his overseas assets, the absence of a majority shareholder to be heard, and the financial instability of the businesses associated with those assets. The court also noted the high costs of the proceedings and the need to balance those costs against the available assets.

The court ordered that Mr Merlo must provide Ms Dennett with 28 days' notice before selling or dealing with any significant overseas assets, and that he report monthly on any such transactions. However, the court did not grant the more restrictive injunctions sought by Ms Dennett, as they would unduly limit Mr Merlo's ability to manage his business and meet his family's needs. The court also did not restrain Ms Ilyn from selling her properties overseas, but ordered her to provide notice of any such intention. The matter was adjourned for further case management and discovery.

Orders