REDMAN & HIRST - [2016] FamCA 1183

FAMILY COURT OF AUSTRALIA

REDMAN & HIRST

[2016] FamCA 1183

FAMILY LAW – SPOUSAL MAINTENANCE – whether the wife is unable to reasonably maintain herself – where the wife has been out of the open employment market since 1993 – where wife has no formal qualifications – where the wife has unsuccessfully applied for numerous jobs post-separation – where the wife is unable to reasonably maintain herself – the extent to which the husband is reasonably able to maintain the wife – orders made.

FAMILY LAW – DISCLOSURE – where orders have previously been made in relation to disclosure - where there is no persuasive evidence that any party has failed to comply with their ongoing obligation of disclosure – where no orders are made in relation to disclosure.

FAMILY LAW – INJUNCTION – where the wife sought various injunctions against the husband in relation to his dealings with property – where the proposed injunctions are exceedingly wide – where, if made, the injunctions would impose unjustified restrictions upon the husband in his operation of the parties’ businesses.

Family Law Act 1975 (Cth)

Bevan and Bevan (1995) FLC 92-600
DJM and JLM (1998) FLC 92-816
Mullen and De Bry (2006) FLC 93-293
Redman and Redman (1987) FLC 91-805
Stein and Stein (2000) FLC 93-004
Waugh and Waugh (2000) FLC 93-052

APPLICANT:

Ms Redman

RESPONDENT:

Mr Hirst

FILE NUMBER:

BRC

582

2016

DATE DELIVERED:

29 April 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

26 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr. Linklater-Steele

SOLICITOR FOR THE APPLICANT:

Harrington Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms. Minnery

SOLICITOR FOR THE RESPONDENT:

Saunders & Co

Orders

By consent

That until further order, the wife have sole right to occupy the matrimonial home to the exclusion of the husband.
That by way of adult child maintenance for Ms B born in 1996, the husband:
(a)       pay to a nominated bank account the sum of $185 per week, the first payment to be made on Friday, 29 April 2016 and weekly thereafter;
(b)       pending further order, the husband to continue to cause the car (driven by Ms B) to be insured, registered and maintained;
(c)       continue to allow Ms B full use in possession of the computer in her possession.

It is further ordered until further order

That the provision of adult child maintenance as contained in paragraph (2) herein is by way of interim order.
That by way of spouse maintenance the husband;
(a)Pay to the wife the sum of $3,568 per month to date from 26 April 2016 with the 1^st payment to be made on 3 May 2016 and every four weeks thereafter;
(b)Pay the mortgage payments for the former matrimonial home as and when they fall due;
(c)Pay the following expenses:
(i)Rates and building insurance on the former matrimonial home;
(ii)The wife’s car lease payments, insurance, registration and maintenance.
That the husband disclose to the wife the monthly bank statements of the…

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 REDMAN & HIRST

Details

AGLC: REDMAN & HIRST [2016] FamCA 1183
Case: [2016] FamCA 1183
Decision Date: 29 April 2016

CaseChat Overview and Summary

In the matter of REDMAN & HIRST, Carew J considered applications by the wife for spousal maintenance, disclosure, and injunctions against the husband. The central dispute revolved around the wife's financial needs and the husband's capacity to meet them, particularly in light of the wife's extended absence from the open employment market since 1993 and her lack of formal qualifications, which had resulted in unsuccessful job applications post-separation. The wife also sought various broad injunctions concerning the husband's dealings with the parties' businesses, which the court considered would impose unjustified restrictions.

The court was required to determine whether the wife was unable to reasonably maintain herself and, if so, the extent to which the husband was reasonably able to maintain her. Additionally, the court had to consider the wife's applications for disclosure and injunctions, assessing whether there had been a failure to comply with disclosure obligations and whether the proposed injunctions were appropriate.

Carew J found that the wife was unable to reasonably maintain herself, given her circumstances. The court also determined that there was no persuasive evidence of any party failing to comply with their ongoing disclosure obligations, and therefore, no specific orders were made in relation to disclosure beyond those already in place. The court declined to grant the wide-ranging injunctions sought by the wife, deeming them to impose unjustified restrictions on the husband's business operations.

By consent, orders were made for the wife to have sole occupation of the matrimonial home. The husband was ordered to pay interim adult child maintenance for Ms B, including weekly payments, continued insurance and registration of her car, and continued use of a computer. Further, the husband was ordered to pay spousal maintenance to the wife, including monthly payments, mortgage payments for the former matrimonial home, and specified expenses related to the home and the wife's car. The husband was also ordered to disclose certain financial documents for himself and his companies. The wife's application for a lump sum payment of $60,000 was adjourned, and all other remaining applications for interim orders, excluding parenting matters, were dismissed.

Orders

Orders of the court

By consent

That until further order, the wife have sole right to occupy the matrimonial home to the exclusion of the husband.

That by way of adult child maintenance for Ms B born in 1996, the husband:

(a) pay to a nominated bank account the sum of $185 per week, the first payment to be made on Friday, 29 April 2016 and weekly thereafter;

(b) pending further order, the husband to continue to cause the car (driven by Ms B) to be insured, registered and maintained;

It is further ordered until further order

That the provision of adult child maintenance as contained in paragraph (2) herein is by way of interim order.

That by way of spouse maintenance the husband;

(a) Pay to the wife the sum of $3,568 per month to date from 26 April 2016 with the 1st payment to be made on 3 May 2016 and every four weeks thereafter;

(b) Pay the mortgage payments for the former matrimonial home as and when they fall due;

(i) Rates and building insurance on the former matrimonial home;

(ii) The wife’s car lease payments, insurance, registration and maintenance.

That the husband disclose to the wife the monthly bank statements of the husband personally as well as C Pty Ltd; D Pty Ltd and E Pty Ltd within seven days of receipt of same.

That the husband disclose to the wife the business activity statements and quarterly management accounts of C Pty Ltd, D Pty Ltd and E Pty Ltd within seven days of lodgement.

That the wife’s application for a payment to her of $60,000 as contained in paragraph 6 of Initiating Application filed 25 January 2016 (interim orders sought) is adjourned to 18 May 2016.

That all remaining applications for interim orders (other than parenting issues) be dismissed.

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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