Naillon & Naillon (No 2) - [2022] FedCFamC1F 957

Federal Circuit and Family Court of Australia
(DIVISION 1)
Naillon & Naillon (No 2) [2022] FedCFamC1F 957

File number(s): ADC 3408 of 2021

Judgment of: BERMAN J

Date of judgment: 6 December 2022

Catchwords:
FAMILY LAW – PROPERTY – Single Experts – Where it is likely that the assets of the four-way partnership have been utilised by the three-way partnership – Where the value of the four-way partnership is unclear because of the three-way partnership – Where all parties agree to wind up the four-way partnership – Where it is necessary to appoint a single expert forensic accountant and a single expert valuer in relation to the four-way partnership and the three‑way partnership – Orders.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the applicant seeks interim spousal maintenance – Where the respondent opposes the application – Where the applicant satisfies the threshold test – Consideration of s 75(2) factors – Consideration of the respondent’s capacity to pay in circumstances where the respondent’s Financial Statement is wholly inadequate – Where it is not unreasonable to bring to account that the respondent has sufficient capacity to meet the spousal maintenance application – Orders.

FAMILY LAW – DISCOVERY – Where the applicant seeks that the first respondent make discovery – Where the documents sought have clear relevance to the proceedings and are not considered a “fishing expedition” – Where the first respondent does not clearly object but rather contends that the applicant can obtain the documents herself in respect of the four-way partnership given her current involvement – Where it is not confirmed whether authority has been provided to the partnership accountant for the applicant to access the documents – Where the respondent would not be put in any difficulty or inconvenience in providing the documents – Orders.

Legislation:
Family Law Act 1975 (Cth) s 75(3)

Partnership Act1891 (SA) s 28

Federal Circuit and Family Court of Australia(Family Law) Rules 2021 Chapter 6

Cases cited:
Briese and Briese (1986) FLC 91-713

Hall v Hall (2016) 257 CLR 490

Hatton & Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038

Jordan & Jordan (1997) FLC 92-736

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555

Martin & Martin and Anor(No 2) [2014] 51 FamLR 492

Re Ronald Neville McGorm Ex Parte: the Co-operative Building Society of South Australia [1989] FCA 87

Stein & Stein (2000) FLC 93-004

Weir & Weir (1993) FLC 92-338

Woley & Humboldt (No 3) [2009] FamCA 546

Division: Division 1 First Instance

Number of paragraphs: 92

Date of hearing: 18 November 2022

Place: Adelaide

Counsel for the Applicant: Mr Heinrich

Solicitor for the Applicant: Kelly Kelly Legal

Counsel for the First Respondent: Ms Ross

Solicitor for the First Respondent: Alex Mandry Legal Group

Counsel for the Second, Third & Fourth Respondents: Mr Roberts

Solicitor for the Second, Third & Fourth Respondents: KP Lawyers
ORDERS

ADC 3408 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS NAILLON

Applicant

AND:
MR…

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 Naillon & Naillon (No 2)

Details

AGLC: Naillon & Naillon (No 2) [2022] FedCFamC1F 957
Case: [2022] FedCFamC1F 957
Decision Date

CaseChat Overview and Summary

In the matter of Naillon & Naillon (No 2), the Federal Circuit and Family Court of Australia Division 1, presided over by Berman J, issued orders on December 6, 2022. The case involved disputes over property and spousal maintenance between Ms Naillon and Mr Naillon, along with other respondents. The court addressed several legal issues, including the valuation of partnership assets, the winding up of a partnership, and the imposition of spousal maintenance. The court ordered the joint appointment of a single expert valuer and a single expert forensic accountant to assess the value of partnership assets and investigate potential misuse of partnership assets for personal gain. The court also granted an injunction to prevent the disposal of partnership assets without the applicant's consent. Regarding spousal maintenance, the court found that the applicant satisfied the threshold test and ordered the respondent to pay $380 per week in interim spousal maintenance. The court also ruled on discovery and disclosure, mandating the first respondent to provide specific documents relevant to the proceedings. Overall, the court's decisions aimed to ensure fair distribution of assets and provide financial support to the applicant during the litigation process.

Orders