FAMILY LAW – Injunctions – Mareva type orders – power to make orders for the preservation of assets – principles – scheme – asset dissipation – wife overseas – money moving overseas – sale of property – refusal to give undertaking.
Real Property Act 1900 (NSW) Family Law Act 1975 (Cth), ss.34(1) and 114(3) Federal Court Act, 1976 (Cth), s.23 Income Tax Assessment Act, 1936 (Cth), s.177A(1) Companies Act, 1920 (Tas)
The application for interim orders be dismissed; and
The Applicant Husband to pay the Respondent Wife’s costs as agreed between the parties, and failing agreement to be taxed and having heard counsel with 28 days to pay.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SYM 3056 of 2005
SCOTT BERNARD MULLEN
Applicant
And
ADRIANA JOAN DE BRY
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns a woman, who now lives in Scotland, selling a house she owns in Surry Hills, a Sydney suburb (“the Surry Hills property”).
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
AGLC
Mullen and De Bry [2006] FMCAfam 561
Case
[2006] FMCAfam 561
Decision Date
CaseChat Overview and Summary
Mullen and De Bry was a family law matter heard in the Federal Circuit and Family Court of Australia. The dispute centred on the financial implications of a relationship breakdown. The husband, Mullen, sought interim orders for spousal maintenance and child support pending the finalisation of the proceedings. The wife, De Bry, opposed these applications, contending that the husband had not demonstrated the necessary need for such relief.
The central legal issues the Court needed to address were whether the husband was entitled to spousal maintenance and child support during the interim period. In deciding these issues, the Court considered the respective financial positions of the parties, their incomes, and the needs of the children. The Court also needed to assess whether the husband had acted unreasonably in his financial dealings that might impact the outcome of the interim applications.
The Court found that the husband had not made out a compelling case for spousal maintenance. It was noted that he had not provided sufficient evidence of his financial needs or the wife’s ability to meet those needs. Regarding child support, the Court determined that the husband’s income and assets were sufficient to cover the children’s needs without the need for interim payments. The Court concluded that the husband had not demonstrated a change in circumstances that warranted interim child support. Consequently, the application for interim orders was dismissed. The husband was also ordered to pay the wife's costs within a specified timeframe.
Orders
Orders of the court
1.
The application for interim orders be dismissed; and
2.
The Applicant Husband to pay the Respondent Wife’s costs as agreed between the parties, and failing agreement to be taxed and having heard counsel with 28 days to pay.