SCHOFIELD & MCCANN - [2015] FCCA 3061

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHOFIELD & MCCANN

[2015] FCCA 3061

Catchwords:
FAMILY LAW – Interim hearing – application for de facto spousal maintenance and litigation funding – wealthy respondent – seven year relationship – no children – applicant fails to satisfy the requirement that she is unable to support herself – interim costs not particularised nor any evidence as to which expert evidence is required or the cost – insufficient evidence to substantiate $50,000 – applicant to vacate premises upon sale.

Legislation:

Family Law Act 1975 (Cth), ss.72(1)(a), 77, 90SD, 90SE, 90SF, 90SM

Bevan & Bevan (1995) FLC 92-600
Mitchell & Mitchell (1995) FLC 92-601
Kiesinger & Pajet [2008] FamCAFC 23
Sadlier & Sadlier [2015] FamCAFC 130
Tuck & Dunst and Anor [2015] FamCA 318
Wilson & Wilson (1989/90) FLC 92-033
Gamble & Gamble (1978) FLC 90-452
Evans & Evans (1978) FLC 90-435

Applicant:

MS SCHOFIELD

Respondent:

MR MCCANN

File Number:

DNC 142 of 2015

Judgment of:

Judge Willis

Hearing dates:

28 & 30 July 2015

Date of Last Submission:

30 July 2015

Delivered at:

Cairns

Delivered on:

18 November 2015

REPRESENTATION

Solicitors for the Applicant:

Withnalls Lawyers

Counsel for the Respondent:

Mr Richards

Solicitors for the Respondent:

Howe Jenkin

ORDERS

Property Orders

The Respondent in his capacity as a Director and Shareholder of (business omitted) Pty Ltd, as Trustee for McCann Family Trust, be at liberty to list for sale the residential property known as Property P, Northern Territory (“the Darwin property”) with the terms of such sale (including as to appointment of a selling agent, the determination of the method of sale, the selling price and other terms of sale) as determined by the Respondent.
The Applicant will, upon five clear days’ notice, facilitate access to the Darwin property by the agent or agents nominated by the Respondent to enable the following:
(a)Undertaking of all work necessary to enable an appropriate engineering certificate to be issued, as will enable the sale of the Darwin property to proceed; and
(b)Inspection of the Darwin property, both as to readiness for sale and inspection by prospective purchasers as and when required by the nominated agent.
Pending the sale of the Darwin property, the Applicant will otherwise be entitled to the sole use and occupation of same to the exclusion of the Respondent, to the intent that the Applicant will maintain the Darwin property in good order and in a clean and tidy fashion, such that the property is appropriately presented for the inspection of prospective purchasers in the company of the nominated selling agent or agents.
Upon settlement of the sale of the Darwin property, the Applicant will vacate the property.
Pending the settlement of the sale of the Darwin property, the Respondent will:
(a)Cause all payments required to be paid by (business omitted) Pty Ltd in relation to account no. (omitted) to be made to (omitted) Bank;
(b)Cause to be paid all rates, taxes, utility costs, cleaning fees, gardening fees and pool cleaning fees in relation to the Darwin…

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 SCHOFIELD & MCCANN

Details

AGLC: Schofield and McCann [2015] FCCA 3061
Case: [2015] FCCA 3061
Decision Date: 18 November 2015

CaseChat Overview and Summary

This matter concerned property orders and disclosure obligations between the applicant and respondent, heard in the Federal Circuit Court of Australia at Adelaide. The primary dispute revolved around the sale of a residential property in the Northern Territory, referred to as the "Darwin property," which was held by a trust of which the respondent was a director and shareholder. The applicant sought to facilitate the sale of this property, while also seeking interim costs and spousal maintenance.

The court was required to determine the terms under which the Darwin property would be listed for sale, including the respondent's liberty to determine the sale terms and the applicant's obligations to facilitate access for necessary work and inspections. Further issues included the applicant's entitlement to sole use and occupation of the property pending sale, and the respondent's responsibilities regarding property outgoings and keeping the applicant informed of the sale progress. The court also addressed disclosure obligations, including the provision of taxation returns, bank statements, and a forensic accounting report, as well as the process for challenging that report and the subsequent engagement in mediation.

Judge Willis made specific property orders, granting the respondent liberty to list the Darwin property for sale on terms determined by him, and requiring the applicant to facilitate access for necessary work and inspections. The applicant was permitted sole use and occupation pending sale, provided she maintained the property. Upon settlement, the applicant was to vacate. The respondent was ordered to meet all payments related to the property, including rates and utilities, and to keep the applicant informed of the sale's progress. Disclosure orders were made, requiring the respondent to provide taxation and bank statements, and a forensic accounting report. The court also ordered the respondent to pay the reasonable costs of a forensic accountant engaged by the applicant to review the report, and to facilitate dialogue between the experts. The parties were directed to engage in mediation of their financial dispute, with the respondent to bear the initial costs. The application for spousal maintenance was dismissed.

Finally, the court ordered the respondent to pay the applicant $15,000 by way of interim costs, intended to cover mediation expenses. The proceedings were to be heard in the Federal Circuit Court of Australia at Adelaide, with a mention date set for 3 March 2016. Provisions were also made for the filing and service of written submissions and draft orders concerning any applications for costs.

Orders

Orders of the court

Property Orders

The Respondent in his capacity as a Director and Shareholder of (business omitted) Pty Ltd, as Trustee for McCann Family Trust, be at liberty to list for sale the residential property known as Property P, Northern Territory (“the Darwin property”) with the terms of such sale (including as to appointment of a selling agent, the determination of the method of sale, the selling price and other terms of sale) as determined by the Respondent.

The Applicant will, upon five clear days’ notice, facilitate access to the Darwin property by the agent or agents nominated by the Respondent to enable the following:

(a) Undertaking of all work necessary to enable an appropriate engineering certificate to be issued, as will enable the sale of the Darwin property to proceed; and

(b) Inspection of the Darwin property, both as to readiness for sale and inspection by prospective purchasers as and when required by the nominated agent.

Pending the sale of the Darwin property, the Applicant will otherwise be entitled to the sole use and occupation of same to the exclusion of the Respondent, to the intent that the Applicant will maintain the Darwin property in good order and in a clean and tidy fashion, such that the property is appropriately presented for the inspection of prospective purchasers in the company of the nominated selling agent or agents.

Upon settlement of the sale of the Darwin property, the Applicant will vacate the property.

Pending the settlement of the sale of the Darwin property, the Respondent will:

(a) Cause all payments required to be paid by (business omitted) Pty Ltd in relation to account no. (omitted) to be made to (omitted) Bank;

(b) Cause to be paid all rates, taxes, utility costs, cleaning fees, gardening fees and pool cleaning fees in relation to the Darwin property; and

(c) Keep the Applicant informed as to the progress with the sale of the Darwin property, including but not limited to, the terms of any contract pursuant to which the Applicant is required to provide vacant possession.

Disclosure

Each of the parties are to comply with their obligations of disclosure pursuant to the Federal Circuit Court Rules and specifically, the Respondent will provide within 21 days of the date of this Order the following documents by way of disclosure:

(a) All personal taxation returns, notices of assessment and group certificates or payment summaries for the financial year ending 30 June 2014; and

(b) All bank account statements for all bank accounts held in the respondent’s name or jointly with another from 1 January 2014 to date, including but not limited to, (omitted) Bank Account No. (omitted) and (omitted) Bank Account No . (omitted).

The Respondent is to provide to the Applicant, the proposed report of Mr M no later than 31 December 2015 unless further leave is sought.

Upon the Applicant being provided with the foreshadowed forensic accounting report of Mr M, within 28 days of receipt, the Applicant is to determine if she wishes to challenge the report. If so:

(a) The Applicant be at liberty to appoint/engage a forensic accountant of her own choosing to review the report of Mr M and to advise the Applicant thereon.

(b) The Respondent will pay the reasonable costs of the Applicant’s forensic accounting expert.

(c) The Respondent will facilitate direct dialogue between Mr M and the Applicant’s forensic accounting expert, including the provision of answers to all reasonable questions and any additional information or documents sought as to the content of the report and the data on which it is based.

The parties are to engage in mediation of their financial dispute in these proceedings, such mediation to be conducted upon full disclosure and after the receipt of the report of Mr M and the second expert report referred to in Order 8 herein (if the applicant opts to take that report) (if possible by December 2015) by (omitted) in Adelaide and at the cost of the Respondent in the first instance.

10.

In default of the parties reaching agreement as to settlement of these proceedings, the parties proceed to obtain a valuation at the Respondent’s cost in the first instance of the Respondent’s interest in (businesses omitted), the expert to be chosen by the Applicant, choosing from three nominations to be put forward by the Respondent.

Spousal Maintenance

11.

The application for spousal maintenance is dismissed.

Interim Costs

12.

That the Respondent pay to the Applicant the sum of $15,000.00 to be paid by way of an interim costs order noting that this amount will be finally characterised by the trial judge and is intended to cover the costs of the mediation.

Other Orders

13.

That pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001, these proceedings be heard in the Federal Circuit Court of Australia at Adelaide.

14.

The matter is listed for mention on 3 March 2016 at 10:00 am in the Federal Circuit Court of Australia at Adelaide.

Costs

15.

In the event the Respondent is pursuing any application for costs they are to file and serve within 21 days of the date of this Order, written submissions together with a draft order setting out the scale of costs.

16.

The Applicant is to file and serve a Response within 21 days of being served with any costs application and is to file and serve written submissions together with a draft orders sought.

NOTATION:

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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