Newport and Newport & Ors - [2017] FamCA 177

FAMILY COURT OF AUSTRALIA

NEWPORT & NEWPORT AND ORS

[2017] FamCA 177

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks an order that the husband and the second respondents sign authorities to enable her to obtain documentation currently held by the Australian Taxation Office – Whether the information sought by the wife from the Australian Taxation Office is of relevance to the issues in dispute – Where such documents are of relevance to the proceedings – Orders made in the terms sought by the wife.

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife seeks an interim injunction to restrain the husband and second respondents from dealing with the interests of two businesses – Where the wife asserts that there is a risk that the husband and second respondents may deal with their business interests in a manner that diminishes or disperses matrimonial property – Whether the injunction sought should be made – Where there is a real risk that funds from the businesses may be applied and disbursed prior to the final hearing – Where appropriate for injunction to be granted.

Family Law Act 1975 (Cth) s114(3)

Evidence Act1995 (Cth) s 75

A & The A Group (2006) FLC 93-271
Alister v R (1984) 154 CLR 404
Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (2005) 92 SASR 419
Beacham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Blue Seas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Commissioner for Railways v Small (1938) 38 SR(NSW)
G and T (2004) FLC 93-176
Giumelli v Giumelli (1999) 196 CLR 101
Kelleher & Anderson [2007] FamCA 137
Killorgan Investments Pty Ltd v Baycorp Advantage Business Services Limited and Ors [2002] VSC 270
Lawson & Crawford and Ors [2014] FamCA 1012
Martin & Martin and Anor (No. 2) [2014] FamCA 232
Martiniello and Martiniello (1981) FLC 91-050
Mullen & De Bry (2006) FLC 93-293
Norton & Locke (2013) 284 FLR 51
Ryder & Lee [2009] FamCA 531
Sieling and Sieling (1979) FLC 90-627
Stowe & Stowe (1981) FLC 91-027
X Pty Ltd and Ors & Merhi [2015] FamCA 622
Yunghanns & Ors v Yunghanns & Ors (1999) FLC 92-836

APPLICANT:

Ms Newport

1ST RESPONDENT:

Mr Newport

2ND RESPONDENTS:

Mr K Newport and Ms L Newport

INDEPENDENT CHILDREN’S LAWYER:

Ms Maitland

FILE NUMBER:

SYC

2571

2015

DATE DELIVERED:

16 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

31 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Mr Lloyd SC

SOLICITOR FOR THE 1ST RESPONDENT:

Mills Oakley Lawyers

SOLICITOR FOR THE 2ND

RESPONDENTS:

Tiyce & Lawyers

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The respondent husband and the second respondents shall not, without first providing at least fourteen (14) days’ written notice to the applicant…

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

Case: [2017] FamCA 177
Decision Date: 16 March 2017

CaseChat Overview and Summary

In the matter of *Newport and Newport & Ors*, McClelland J of the Family Court of Australia considered applications by the wife for interim relief in property proceedings. The wife sought orders compelling the husband and second respondents to provide authorities for the release of taxation documents from the Australian Taxation Office, and an interim injunction restraining the husband and second respondents from dealing with their interests in two businesses.

The primary legal issues before the court were whether the taxation information sought by the wife was relevant to the disputed issues in the proceedings, and whether there was a real risk that the husband and second respondents might deal with their business interests in a manner that would diminish or disperse matrimonial property prior to a final hearing.

McClelland J reasoned that the taxation documents were relevant to the proceedings, as they would shed light on the financial positions of the parties. Furthermore, the court found that there was a real risk of dissipation of assets from the businesses, justifying the grant of an interim injunction. Consequently, the court made orders requiring the husband and second respondents to provide the requested taxation authorities and imposing restrictions on their dealings with the specified companies, pending further order.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The respondent husband and the second respondents shall not, without first providing at least fourteen (14) days’ written notice to the applicant wife, do any act or thing, or give any direction, which has the effect of:

(a) borrowing any monies from Company M ABN … and/or Company N ABN … except in the ordinary course of business;

(b) assigning, transferring, disposing of, or in any way dealing with, any of the assets of Company M ABN … or Company N ABN … except in the ordinary course of business;

The respondent husband shall, within seven (7) days of the date of these Orders, provide to the applicant wife’s solicitors a signed written authority and direction addressed to the Australian Taxation Office (“the ATO”) authorising the ATO to provide to Pearson Emerson Meyer Family Lawyers and to Mills Oakley Lawyers the following:

(a) the respondent husband’s personal income taxation returns and notices of assessment for the financial years ended 30 June 1998, 30 June 1999, 30 June 2003 and 30 June 2004; and,

(b) the taxation returns for the Mr K and Mr Newport Partnership, Mr K and Mr Newport trading as Company M ABN … for the financial years ended 30 June 1998, 30 June 1999, 30 June 2003 and 30 June 2004.

The second respondent, Mr K Newport, shall, within seven (7) days of the date of these Orders, provide to the applicant wife’s solicitors a signed written authority and direction to the ATO authorising the ATO to provide to Pearson Emerson Meyer Family Lawyers and to Tiyce & Lawyers his personal income tax returns and notices of assessment for the financial years ended 30 June 1998 to 30 June 2016 inclusive.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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