Porter & Porter

Case [2022] FedCFamC1F 102


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Porter & Porter [2022] FedCFamC1F 102

File number(s): SYC 4014 of 2012
Judgment of: HARPER J
Date of judgment: 3 March 2022
Catchwords: FAMILY LAW – PROPERTY – Where Applicant Wife makes application pursuant to s 106B after final orders –Whether application made in proceedings under the Act – Whether this Court has jurisdiction – Whether s 106B application made to enforce final orders – Where trademarks assigned during the proceedings from one trustee to another – Husband sole appointor of trust and a beneficiary – Where proceedings have been determined and finalised - Where there has been no application under s 79A or s 79 for further property adjustment orders – Whether the wife is entitled to orders setting aside assignment of trademarks – Whether discretion should be exercised pursuant to s 106B – Application dismissed – Where cost application may be made within 28 days.
Legislation:

Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) ss 74(1), 79A, 79, 90AE, 90RD, 106B

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 9, 25, 51, 132, 149

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 11, Div 11.1.4

Cases cited:

Bourke v Bourke (Final Hearing Costs) (2010) 43 Fam LR 139; [2010] FamCA 199

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Clayton v Bant (2020) 62 Fam LR 16; [2020] HCA 44

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5

Dovgan & Dovgan [2021] FamCA 306

Equuscorp Pty Ltd and Another v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55

Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162

Gartside v Inland Revenue Commissioners [1968] 1 All ER 121

Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43

Gould and Gould and Swire Investments Ltd (1993) FLC 92-434; [1993] FamCA 126

Haseloff & Kormann [2013] FamCA 1019

Hazeldell Ltd v Commonwealth (1924) 34 CLR 442

In Marriage of Cullen (1980) FLC 90-899

In the Marriage of D (1984) FLC 91-593; [1984] FamCA 64

In the Marriage of Health (1983) FLC 91-362; [1983] FamCA 44

In the marriage of Kwon (1993) FLC 92-379; [1993] FamCA 46

In the Marriage of Page (1979) 4 Fam LR 663

In the Marriage of Whitaker (1980) FLC 90-813

In the Marriage of Yunghanns (1999) FLC 92-836; [1999] FamCA 64

Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

Kramer v Ward (2017) FLC 93-817; [2017] FamCAFC 270

Milligan v Milligan (2017) FLC 93-811; [2017] FamCAFC 218

Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4

New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

Porter & Porter and Ors (No. 2) [2020] FamCA 554

Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249…

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AGLC
Porter & Porter [2022] FedCFamC1F 102
Case
[2022] FedCFamC1F 102
Decision Date

CaseChat Overview and Summary

In the case of Porter & Porter, the wife and husband, represented pro se, brought a claim for contravention of property orders against each other in the Family Court of Australia. The wife sought enforcement of the 2014 property settlement orders, while the husband sought relief including setting aside those orders. The third parties, Ms O and CC Pty Ltd, were also involved in the proceedings.

The court had to determine several legal issues, including whether the husband had contravened the 2014 orders by transferring his shares in CC Pty Ltd to S Pty Ltd, controlled by Ms O. The court also had to decide whether Ms O was bound by the February 2018 orders, which restrained her from disposing of property held by the trusts. The court further had to consider whether the wife was entitled to the relief she sought under the Family Law Act.

The court found that the husband had contravened the 2014 orders by transferring his shares in CC Pty Ltd to S Pty Ltd, controlled by Ms O. The court held that Ms O was bound by the February 2018 orders and had contravened them by causing CC Pty Ltd to distribute property to the husband. The court found that the wife was entitled to the relief she sought, including an order for the husband to pay the wife $1,133,577.50. The court also found that the husband's bankruptcy did not affect the wife's entitlement to the relief she sought.

The court ordered the husband to pay the wife $1,133,577.50. The court also made orders for the husband to provide documents and information to the wife to enable her to assess the value of the assets held by CC Pty Ltd and the trusts. The court further ordered that the February 2018 orders remain in force until further order.

Orders

Orders of the court

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Background

Background to the litigation

The wife and the husband represented themselves before me. Ms O appeared for herself as well. The third parties were represented by counsel. I note here that the wife subpoenaed Ms O to give evidence as her witness. The wife also foreshadowed an application to have Ms O declared as an adverse witness, but this was not pursued. Ms O gave some brief oral evidence in chief.BACKGROUND The parties and their dealings have a long and complex history. It is unnecessary to rehearse it in detail for present purposes. Most relevant background facts can also be derived from the judgment of Watts J in Porter & Porter and Ors (No. 2) [2020] FamCA 554 (“Porter (No 2)”). I will refer to this judgment and additional factual matters as necessary in the course of these reasons. For the purposes of this judgment, the following facts are important. In 2004, the husband and the wife married. They separated in 2011, and divorced in 2012. On 8 August 2013, the wife filed an Initiating Application for final property orders. On 20 June 2014, the parties entered into final consent property orders and a binding child support agreement. The important operative clauses of those orders are described in the judgment of Watts J in Porter (No 2) at [3], [12]–[15]. On 11 November 2016, the wife filed an Application for Contravention to enforce the 2014 orders and the child support agreement. The husband filed a Response seeking a range of relief, including orders setting aside the 2014 orders pursuant to s 79A(1) of the Act, discharge of orders for spousal maintenance, orders setting aside the binding child support agreement, and consequential orders. On 31 January 2018, the competing applications were set for final hearing. On the morning of the first day, the husband announced he had become bankrupt on his own petition, and in the days beforehand, had transferred all his directorships and shares in multiple corporate entities to Ms O: Porter (No 2) at [23]–[24]. The final hearing was adjourned. On 1 February 2018, Watts J made a number of interlocutory orders by consent (“the February 2018 orders”). Relevantly, and in summary, these orders restrained the husband and Ms O in their personal capacity and as directors, trustees, appointors or authorised officers of a number of entities (including CC Pty Ltd) from doing any act or thing:(1)to vary in any way the number of units held in any named unit trust, (including two trusts, the N Trust and the CC Trust (“CC Trust”); or (2)to dispose of any property (including shares, real estate or any property whatsoever) presently vested in any of the named trusts except in the ordinary course of business (as defined), or causing any named trust to pay or disburse distributions. In 2013, CC Pty Ltd was incorporated. In mid-2013, the husband became a director, secretary, and sole shareholder of CC Pty Ltd. On 22 January 2018, the husband transferred his shareholding in CC Pty Ltd to S Pty Ltd, a company under the sole control of Ms O. Consequently, as at 1 February 2018, Ms O controlled CC Pty Ltd and was bound by the orders of 1 February 2018.

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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