Mitty and Mitty and Ors (No. 2) - [2008] FamCA 973

FAMILY COURT OF AUSTRALIA

MITTY & MITTY AND ORS (NO. 2)

[2008] FamCA 973

FAMILY LAW – PRACTICE AND PROCEDURE – orders supporting enforcement – procedural orders

Family Law Act 1975 (Cth)

APPLICANT:

Ms Mitty

1^st RESPONDENT:

Mr Mitty

3^rd RESPONDENT:

Mitty Pty Ltd

4^th RESPONDENT:

Ms N

5^thRESPONDENT:

Ms S

6^th RESPONDENT:

Mr B

FILE NUMBER:

SYC

8326

2007

DATE DELIVERED:

6 November 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

ORDERS MADE:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

24 October 2008

ORDERS MADE:

6 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

1^ST RESPONDENT:

In person

COUNSEL FOR THE 3^RD, 4^TH AND 5^TH RESPONDENTS:

Mr Brzostowski SC

6^TH RESPONDENT:

Excused from attendance

Orders

Within 14 days of the date of these Orders the husband cause to be delivered to the wife at an address nominated by the wife the horses referred to in the Order made on 24 July 2008 deposed to by him in his Financial Statements sworn in these proceedings as owned either by him or H Capital Pty Limited, together with any relevant registration papers, and such delivery shall be at the husband’s expense.
The husband sign the authority to the National Australia Bank and E Business in the form of the authorities attached to these Orders forthwith.
That the husband do all things to, on or before 4.00 pm on 20 November 2008, to provide in writing to the solicitors for the wife:
(a)an authority duly executed and dated by the husband pursuant to the Freedom of Information Act 1982 (Cth) authorising and directing Centrelink to provide a copy of his file with that institution to the solicitors for the wife and
(b)an affidavit setting out the nature and purpose of each application of funds made from the trust account of E Business in T operated on behalf of the husband and/or H Capital Pty Limited, for the period 1 February 2008 to date, as identified in Exhibit “T” tendered 24 October 2008 in these proceedings together with any document verifying the quantum of funds paid, and otherwise set out the factual foundations contended by the husband as to the nature of such payment or its application as part of his reasonable living expenses.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8326 of 2007

MS MITTY

Applicant

And

MR MITTY

1^stRespondent

And

MITTY PTY LTD

3^rd Respondent

And

MS N

4^th Respondent

And

MS S

5^th Respondent

And

MR M

6^th Respondent

REASONS FOR JUDGMENT

Background Facts

These are proceedings which arise between the parties to the marriage in which, inter alia, the parties seek orders for the alteration of interests in property.
There is a clear issue between the parties as to…

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 Mitty and Mitty and Ors (No. 2)

Details

AGLC: Mitty and Mitty and Ors (No. 2) [2008] FamCA 973
Case: [2008] FamCA 973
Decision Date: 6 November 2008

CaseChat Overview and Summary

In *Mitty and Mitty and Ors (No. 2)*, Justice Fowler of the Federal Circuit Court of Australia considered orders relating to the division of property and disclosure of financial information between a husband and wife. The dispute involved the delivery of horses, the signing of financial authorities, and the provision of detailed information regarding the application of funds from a trust account.

The court was required to determine the specific terms and enforceability of orders concerning the transfer of assets, the execution of documents necessary for financial disclosure, and the provision of detailed explanations and supporting documentation for financial transactions. The husband was also ordered to provide written consent for the disclosure of his Centrelink file to the wife's solicitors.

Justice Fowler's reasoning focused on ensuring full and frank disclosure of financial matters and the effective division of matrimonial assets. The orders reflect the court's power to direct parties to take specific steps to facilitate the resolution of property disputes, including the delivery of specified property, the execution of necessary authorities, and the provision of detailed affidavits and supporting documents to clarify the nature and purpose of financial transactions. The court also emphasised the importance of compliance with disclosure obligations under the *Freedom of Information Act 1982* (Cth) in the context of family law proceedings.

Orders

Orders of the court

Within 14 days of the date of these Orders the husband cause to be delivered to the wife at an address nominated by the wife the horses referred to in the Order made on 24 July 2008 deposed to by him in his Financial Statements sworn in these proceedings as owned either by him or H Capital Pty Limited, together with any relevant registration papers, and such delivery shall be at the husband’s expense.

The husband sign the authority to the National Australia Bank and E Business in the form of the authorities attached to these Orders forthwith.

That the husband do all things to, on or before 4.00 pm on 20 November 2008, to provide in writing to the solicitors for the wife:

(a) an authority duly executed and dated by the husband pursuant to the Freedom of Information Act 1982 (Cth) authorising and directing Centrelink to provide a copy of his file with that institution to the solicitors for the wife and

(b) an affidavit setting out the nature and purpose of each application of funds made from the trust account of E Business in T operated on behalf of the husband and/or H Capital Pty Limited, for the period 1 February 2008 to date, as identified in Exhibit “T” tendered 24 October 2008 in these proceedings together with any document verifying the quantum of funds paid, and otherwise set out the factual foundations contended by the husband as to the nature of such payment or its application as part of his reasonable living expenses.

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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