Powell and Powell - [2011] FMCAfam 1144

FEDERAL MAGISTRATES COURT OF AUSTRALIA

POWELL & POWELL

[2011] FMCAfam 1144

FAMILY LAW – Interim lump sum maintenance – payment of arrears of maintenance – injunctions – interim costs – interim sale of property.

Family Law Act 1975, ss.75, 79, 114

M & DB [2006] FamCA 1380

Applicant:

MS POWELL

Respondent:

MR POWELL

File Number:

WOC 475 of 2011

Judgment of:

Altobelli FM

Hearing date:

7 October 2011

Date of Last Submission:

7 October 2011

Delivered at:

Sydney

Delivered on:

12 October 2011

REPRESENTATION

Solicitors for the Applicant:

Dribbus Kovacevic Lawyers

Counsel for the Respondent:

Mr Sweet

Solicitors for the Respondent:

Heard McEwan Lawyers

ORDERS, PENDING FURTHER ORDER

The Husband pay to the Wife the arrears of spousal maintenance payable pursuant to orders made 12 July 2011, on or before 5:00pm on the day following the making of these orders.
The Husband either by himself or as director and or shareholder of the following companies or by his agent or an agent of the following companies:
(a)[M] Pty Limited
(b)[U] Labour Pty Limited
(c)[S] Pty Limited
(d)[C] Pty Limited
be restrained from selling, dealing with or otherwise encumbering the following properties without giving to the wife 4 weeks notice in writing of his intention to do so:
(i)[Property A];
(ii)[Property B];
(iii)[Property C];
(iv)[Property D];
(v)[Property E];
(vi)[Property F];
(vii)[Property G];
(viii)[Property H];
(ix)[Property I];
(x)[Property J].
Pending further order and unless otherwise agreed between the parties in writing:
(a)the Husband be restrained from dealing with his shareholdings in any company except for any shareholdings he may have in companies listed with the Australian Stock Exchange without giving the Wife 4 weeks notice in writing of his intention to do so.
(b)the Husband be restrained from resigning his directorship in any company in which he is a director as at the date of this application.
(c)
the Husband be restrained from, in his capacity as shareholder, appointing any other person a director of any company in which he is presently a director or shareholder without giving the wife

4 weeks notice in writing of his intention to do so.
(d)the Husband be restrained from causing to be sold any real property in relation to which he is a proprietor or co-proprietor without giving the wife 4 weeks notice in writing of his intention to do so.
The remainder of the Wife’s Amended Application filed 12 September 2011 is dismissed.
The Husband’s Amended Response to an Application in a Case filed in court on 7 October 2011 is dismissed.
The Conciliation Conference on 5 December 2011 is vacated.
The Mention on 5 December 2011 is vacated.
The proceedings are transferred to the Family Court of Australia to be listed for directions before a Registrar on 24 October 2011 at 9:30am.
Both parties’ costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Powell & Powell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 475…

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 Powell and Powell

Details

AGLC: Powell and Powell [2011] FMCAfam 1144
Case: [2011] FMCAfam 1144
Decision Date: 12 October 2011

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ms. Powell, the applicant, initiated proceedings against Mr. Powell, the respondent, seeking various orders related to spousal maintenance, property preservation, and interim costs. The substantive proceedings between the parties primarily concern property disputes under section 79 of the Family Law Act 1975. The central issue in this case revolves around the constitution of the asset pool and its valuation, as well as questions of contribution and future needs.

The court was required to decide several legal issues, including whether to grant the wife's request for a lump sum spousal maintenance of $67,300, payment of arrears of maintenance, and various injunctions aimed at preserving assets. Additionally, the court had to consider the husband's request to dismiss the wife's application and impose certain conditions on the orders previously made. The court also needed to determine if there was sufficient evidence to justify the imposition of interim costs.

The court found that the evidence provided by both parties was largely unhelpful and inconsistent, lacking objective support. Despite this, the court was satisfied that there were arrears of spousal maintenance that the husband was not paying without good reason. The court also concluded that there was a risk of the husband disposing of or dealing with assets without proper consultation. However, the court could not make definitive findings regarding the cash holdings of the parties. Based on the Full Court's decision in M & DB [2006] FamCA 1380, the court granted certain injunctions but found others to be too wide or lacking sufficient evidence. The court declined to make an interim costs order due to insufficient evidence.

The court transferred the matter to the Family Court of Australia for further directions and listed it before a Registrar on 24 October 2011. The court ordered the husband to pay the arrears of spousal maintenance by a specified date. The court also imposed certain restraints on the husband regarding the sale or dealing of specified properties and company shares, requiring him to give the wife four weeks' notice before taking such actions. The court dismissed the remainder of the wife's application and the husband's amended response. The conciliation conference and mention were vacated, and the proceedings were transferred to the Family Court of Australia. The costs of both parties were reserved.

Orders