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.
[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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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.