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SEATON & SEATON

Case [2019] FamCA 462 9 April 2019

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FAMILY COURT OF AUSTRALIA

SEATON & SEATON

[2019] FamCA 462

FAMILY LAW – PROPERTY – Orders by consent that parties attend Mediation - Orders by consent that parties must attend Mediation in person and make a genuine effort to resolve all of the matters in dispute.

FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Orders by consent that parties exchange documents prior to mediation – Orders by consent in relation to the sale of a property – Orders by determination for the husband to make discovery in respect of a company and transfer of monies overseas – Orders by determination for the appointment of a single expert valuer – Orders by determination adjourning matter to fixed date for trial directions and directions in relation to bifurcation.

Family Law Act 1975 (Cth)

Labonte & Labonte and Anor [2018] FamCA 755

APPLICANT:

Ms Seaton

RESPONDENT:

Mr Seaton

FILE NUMBER:

SYC

3756

2017

DATE DELIVERED:

9 April 2019

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

9 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr W. Ayliffe

SOLICITOR FOR THE APPLICANT:

Blissenden Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell

SOLICITOR FOR THE RESPONDENT:

Karras Partners

Orders

BY CONSENT the parties attend a mediation before the Honourable Michelle May on 2 & 3 May 2019 or such alternate dates as are agreed between the parties and the mediator, at a venue in Hobart or at a place to be determined.
BY CONSENT the husband pay the costs of the mediation which will be subject to any subsequent costs orders that the Court may or may not determine at a later stage.
BY CONSENT each party must attend the mediation in person and must make a genuine effort to resolve all of the matters in dispute.
BY CONSENT at least ten (10) days prior to the mediation, the parties exchange a Balance Sheet, identifying agreed and disputed assets.
BY CONSENT at least seven (7) days prior to the mediation, the parties’ solicitors send, to the nominated mediator, copies of:-
(a)all relevant Applications, Responses, Affidavits and Financial Statements filed in the proceedings;
(b)the Balance Sheet of agreed and disputed assets and liabilities;
(c)any relevant documents exchanged between the parties;
(d)the orders sought by them to give effect to their settlement proposal;
(e)an outline of case document;
(f)valuations of any asset or financial resource, the value of which is in dispute;
(g)valuations or market appraisals with respect to any parcel of real estate in which any party has an interest;
(h)market appraisals or internet valuations for any motor vehicle, the value of which is not agreed;
(i)valuations of any superannuation interests;
(j)written confirmation that the superannuation trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness; and
(k)any intervention or restraining orders currently in place.
BY CONSENT orders in relation to any proposed and actual sale of the ‘L Business’, however the time period for giving notice shall be no less than…

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 SEATON & SEATON

Details

AGLC: SEATON & SEATON [2019] FamCA 462
Case: [2019] FamCA 462
Decision Date: 9 April 2019

CaseChat Overview and Summary

This matter concerned property settlement proceedings between a husband and wife. The parties sought consent orders regarding their attendance at mediation, the exchange of financial documents prior to mediation, and the sale of a business. Additionally, the court made orders by determination concerning the husband's discovery obligations in relation to a company and overseas money transfers, the appointment of a single expert valuer, and the adjournment of the proceedings for trial directions and bifurcation.

The court was required to determine the terms of consent orders relating to the mediation process, including the attendance of the parties, the exchange of financial information, and the husband's responsibility for mediation costs. Furthermore, the court had to make determinations regarding discovery of documents pertaining to a company and overseas money transfers, the appointment of an independent valuer, and the future conduct of the proceedings, including directions for trial and potential bifurcation.

The court made orders by consent reflecting the parties' agreement on mediation attendance, the exchange of a balance sheet, and the provision of various financial documents to the mediator. Consent orders were also made regarding the sale of a business and the notification requirements for proposed asset sales or borrowings by the husband. By determination, the court ordered the husband to provide a summary of overseas money transfers and documents relating to company interests. Directions were given for the nomination and appointment of a single expert valuer, and the proceedings were adjourned for trial directions and bifurcation.

Orders

Orders of the court

BY CONSENT the parties attend a mediation before the Honourable Michelle May on 2 & 3 May 2019 or such alternate dates as are agreed between the parties and the mediator, at a venue in Hobart or at a place to be determined.

BY CONSENT the husband pay the costs of the mediation which will be subject to any subsequent costs orders that the Court may or may not determine at a later stage.

BY CONSENT each party must attend the mediation in person and must make a genuine effort to resolve all of the matters in dispute.

BY CONSENT at least ten (10) days prior to the mediation, the parties exchange a Balance Sheet, identifying agreed and disputed assets.

BY CONSENT at least seven (7) days prior to the mediation, the parties’ solicitors send, to the nominated mediator, copies of:-

(a) all relevant Applications, Responses, Affidavits and Financial Statements filed in the proceedings;

(b) the Balance Sheet of agreed and disputed assets and liabilities;

(d) the orders sought by them to give effect to their settlement proposal;

(e) an outline of case document;

(f) valuations of any asset or financial resource, the value of which is in dispute;

(g) valuations or market appraisals with respect to any parcel of real estate in which any party has an interest;

(h) market appraisals or internet valuations for any motor vehicle, the value of which is not agreed;

(i) valuations of any superannuation interests;

(j) written confirmation that the superannuation trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness; and

(k) any intervention or restraining orders currently in place.

BY CONSENT orders in relation to any proposed and actual sale of the ‘L Business’, however the time period for giving notice shall be no less than forty eight (48) hours with respect to any proposed sale.

BY CONSENT subject to order 6, the husband shall give the wife fourteen (14) days prior written notice of the following:-

(a) of any proposed sale of a husband’s asset or an entity, set out in schedule 1 hereof, such notice to include details of:-

(i) the asset to be sold;

(ii) the price or other consideration for the sale;

(iii) a copy of the proposed sale document, and if it has not been drawn then that document is to be provided at least fourteen (14) days before it is executed by the husband, a known entity or by another entity;

(iv) the proposed completion date for the sale; and

(v) if any sale becomes unconditional, then seven (7) days prior to the date for completion of the sale, a written settlement statement, such statement to detail the proposed manner of distribution of the gross proceeds of sale (‘the settlement statement’).

(b) of any proposed borrowing by the husband or by a known entity or by another entity, such to include details of:-

(i) the amount proposed to be borrowed;

(ii) from whom the monies are to be borrowed;

(iii) the purpose of the borrowing;

(iv) the security proposed to be given for the borrowing; and

(v) a copy of the loan documentation.

(c) Of any proposed restructuring of any existing borrowings or the security for existing borrowings of and/or given by the husband or by a known entity or by another entity, such notice to include:-

(i) what borrowing or security for the borrowing is being restructured;

(ii) full particulars of what the restructuring involves;

(iii) a written statement of the reasons for the restructuring; and

(iv) a copy of the loan documentation.

IT IS FURTHER ORDERED BY DETERMINATION

If the proceedings are not resolved at mediation, within seven (7) days of the date of the mediation, the parties are to serve upon one another written notices identifying:-

(a) the issue/s that the party considers were resolved at the mediation;

(b) those issues that remain in dispute;

(d) the expected costs of trial.

The parties must not unreasonably include in their statements of the issues, as referred to in the above order, that the party considers to remain in dispute an issue that is unmeritorious or has no reasonable prospects of success.

IT IS DIRECTED

10.

The husband shall, within fourteen (14) days from the date of this order, nominate an experienced particular valuer from three of the four valuation companies set out in the husband’s affidavit with the exception of F Valuers together with the curriculum vitae of such valuer and the estimated cost of the valuations and the wife, within a further period of twenty eight (28) days, nominate one or other of those three valuers to undertake the valuations set out in orders sought no. 11 in the wife’s application in a case filed 20 March 2019.

IT IS FUTHER ORDERED

11.

Within twenty eight (28) days of the date of this order the husband provide to the wife a written summary of the total of all monies caused by the husband and/or his nominees and/or his employees to be transferred to overseas recipients through G Company or otherwise over the last ten (10) year period, if that material has not already been provided.

12.

The husband shall provide to the wife such documents as are reasonably requested by the wife in relation to the interests of J Pty Ltd in Q Group.

13.

These proceedings be adjourned for trial directions and directions in relation to bifurcation to Justice Watts in Sydney at 10.00am on 28 May 2019.

IT IS DIRECTED

14.

A copy of the reasons for these orders be taken out and placed on the Court file.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

SEATON & SEATON [2019] FamCA 462

Cases Citing This Decision

No citing cases yet.

Cases Cited

LABONTE & LABONTE [2018] FamCA 755
Citation 1 (Para 12)

…apply in such applications under s 114 of the Act. I was taken to a decision of McClelland J, as he then was, in a case of Labonte & Labonte and Anor [2018] FamCA 755. It seems not in issue that the principles to be adopted in such cases were correctly set out by his Honour in paragraphs 55 and 56 of those reasons:…
Curtis v NID Pty Ltd [2010] FCA 1072
Citation 2 (Para 12)

…ll be prejudiced in the remedy he or she is seeking ( Glover v Walters (1950) 80 CLR 172 at 176). 56.In that respect, in Curtis v NID Pty Limited [2010] FCA 1072, Edmonds J said at [8] to [10]: 8. The test in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 is in similar terms to O 25A r 5(4). In that ca…
Vaughan v Duncan [2007] NSWSC 811
Citation 3 (Para 12)

…d view, namely, that the plaintiff establishes ‘a sufficient apprehension of dissipation of the … assets’: Vaughan v Duncan [2007] NSWSC 811 at [5] per Hamilton J. 10. What is settled, however, is that solid evidence of a danger of dissipation or disposal of assets be produced. The relevant test was enunciated by B…
Finn v Carelli [2007] NSWSC 261
Citation 4 (Para 12)

…a danger of dissipation or disposal of assets be produced. The relevant test was enunciated by Brereton J in Finn v Carelli [2007] NSWSC 261 at [4], where his Honour referred to the NSW Court of Appeal’s decision in Frigo v Culhaci [1998] NSWCA 88: It is not necessary for an applicant to show that the respondent ha…
Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226
Citation 5 (Para 12)

…ticular case justifies an asset preservation order’: Lifetime Investments Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2005] FCA 226 at [14] per Kiefel J, approving Victoria University of Technology v Wilson [2003] VSC 299 at [36] per Redlich J. There is even a third view, namely, that the plaintiff e…
Victoria University of Technology v Wilson [2003] VSC 299
Citation 6 (Para 12)

…(Worldwide) Financial Services Pty Ltd [2005] FCA 226 at [14] per Kiefel J, approving Victoria University of Technology v Wilson [2003] VSC 299 at [36] per Redlich J. There is even a third view, namely, that the plaintiff establishes ‘a sufficient apprehension of dissipation of the … assets’: Vaughan v Duncan [2…
Frigo v Culhaci [1998] NSWCA 88
Citation 7 (Para 12)

…inn v Carelli [2007] NSWSC 261 at [4], where his Honour referred to the NSW Court of Appeal’s decision in Frigo v Culhaci [1998] NSWCA 88: It is not necessary for an applicant to show that the respondent has a positive intention of evading a judgment, and it is sufficient to show that the course on which the respo…
Hadid v Lenfest Communications Inc [1996] FCA 675
Citation 8 (Para 12)

…n that respect, in Curtis v NID Pty Limited [2010] FCA 1072, Edmonds J said at [8] to [10]: 8. The test in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 is in similar terms to O 25A r 5(4). In that case, Gleeson CJ, with whom Meagher JA broadly agreed, said, at 321 – 322, as follows: [A] plaintiff will ne…
Glover v Walters [1950] HCA 1
Citation 9 (Para 12)

…lt of that risk, there is a real ground for believing that the applicant will be prejudiced in the remedy he or she is seeking ( Glover v Walters (1950) 80 CLR 172 at 176). 56.In that respect, in Curtis v NID Pty Limited [2010] FCA 1072, Edmonds J said at [8] to [10]: 8. The test in Patterson v BTR Engineering (Aust…
[1983] 1 WLR 1412 [1983] 1 WLR 1412
Citation 10 (Para 12)

…a plaintiff must demonstrate that a prospective judgment will go unsatisfied: see, for example, Cardile at [122] per Kirby J; Ninemia [1983] 1 WLR 1412 at 1422 per Kerr LJ. In others, it has been said that an applicant must establish ‘a sufficient likelihood of risk which in the circumstances of a particular case ju…
Patterson v BTR Engineering (Aust) Ltd (1989) NSWLR 319
Citation 11 (Para 12)

…Walters (1950) 80 CLR 172 at 176). 56.In that respect, in Curtis v NID Pty Limited [2010] FCA 1072, Edmonds J said at [8] to [10]: 8. The test in Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 is in similar terms to O 25A r 5(4). In that case, Gleeson CJ, with whom Meagher JA broadly agreed, said, at 321 – 322, as follows: [A] plai…

Legislation Cited

Family Law Act 1975 (Cth)
1 mention (from Para 2)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)