FAMILY COURT OF AUSTRALIA
| SELENA & MONTEZ AND ORS | [2017] FamCA 583 |
| FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the Wife sought orders in relation to litigation funding, spousal maintenance, injunctions and disclosure – Where the wife’s application for an order for costs pursuant to section 117 in the form of a lump sum amount or on a dollar for dollar basis is dismissed – Court finds that the amount sought by the wife by way of interim property distribution in the sum of $175,000 is excessive – Orders made for a further distribution of property to the wife to be conditional upon the wife agreeing to facilitate the husband borrowing the amount from one of the parties’ jointly owned properties – Orders made for the amount of $44,922 to be paid to the wife – Where the wife has failed to satisfy the Court that she is unable to support herself adequately and therefore she does not meet the gateway requirement set out in section 72 of the Act – Wife’s application in the alternative, for the payment of a lump sum amount pursuant to sections 72 and 74 of the Act is dismissed – Where the wife has not established a basis of injunctions beyond those agreed to by the husband – Parties’ agreement in respect to production of documents noted – further orders made to facilitate mutual disclosure – No orders made for expedition. | |
| Family Law Act 1975 (Cth) ss. 72, 74, 75, 79, 80(1)(h), 90AF, 106B, 117 Family Law Rules 2004 (Cth) r 12.07(2), sch 1, cl 6(1)(c) | |
| Beach Petroleum Nl and Claremont Petroleum Nl v Malcom Keith Johnson and Others[1995] FCA 1250 Breen & Breen (1990) 65 ALJR 195 Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Casley & Casley (Costs) [2010] FamCAFC 189 Esdale & Schenk [2012] FamCA 111 Jamine & Jamine (Costs) [2010] FamCAFC 191 G and T (2004) FLC 93-176 Giumelli v Giumelli (1999) 196 CLR 101 Hall and Hall [2016] HCA 23 Hogan & Hogan (1986) FLC 91-704 Kelleher & Anderson [2007] FamCA 137 I Limited & Chester and Ors (Costs) [2011] FamCAFC 51 Martiniello and Martiniello [1981] FamCA 21 Oscar & Traynor [2008] FamCAFC 158 Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184 Stephens & Stephens and Anor (Enforcement) (Costs) [2010] FamCAFC 172 Stoian & Flemming (Costs) [2014] FamCA 9446 Strahan & Strahan (Interim Property Orders)[2009] FamCAFC 166 Sully & Sully(No. 2) [2016] FamCA 706 Tang & Fei (Costs) [2011] FamCAFC 29 Tamaniego &… |
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- AGLC
- Selena & Montez and Ors [2017] FamCA 583
- Case
- [2017] FamCA 583
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether to grant the Wife's applications for interim property distribution, spousal maintenance, and costs, and whether to grant the injunctions sought. Specifically, the Court had to determine if the Wife had satisfied the threshold requirements for spousal maintenance under section 72 of the *Family Law Act 1975* (Cth), and whether the amount sought for interim property distribution was appropriate. The Court also considered the Wife's application for costs under section 117 of the Act, and the basis for any injunctions.
McClelland J dismissed the Wife's application for costs, finding that she had not satisfied the Court that an order displacing the presumption that each party bears their own costs was warranted. While acknowledging the Wife had access to fewer financial resources than the Husband, the Court noted she had significant equity in a jointly owned property and had not provided evidence of attempts to borrow against it or return to the workforce. The Wife's application for spousal maintenance was also dismissed as she failed to demonstrate she could not adequately support herself, a gateway requirement under section 72. The Court found the amount sought for interim property distribution to be excessive, but ordered a distribution of $44,922 to the Wife, conditional upon her facilitating the Husband's ability to borrow funds against a jointly owned property. The Court also made orders for mutual disclosure of documents and granted limited injunctions restraining the Husband from certain actions concerning J Pty Ltd and requiring disclosure of information regarding the Montez Discretionary Trust.
Orders
Orders of the court
THE COURT ORDERS THAT:
1.
That pending further Order the Husband in his capacity as trustee of the Montez Discretionary Trust, provide the Wife within 72 hours of receipt of written notice of the payment of any income or capital received by the Montez Discretionary Trust including amount of payment, date of payment, source of the payment and purpose of the payment.
2.
That pending further Order the Husband, in his capacity as Director of J Pty Ltd, be restrained by injunction from doing any actual thing to:
a. cause the constitution of J Pty Ltd to be amended;
b. issue any further shares in J Pty Ltd; and/or
c. transfer, encumber or otherwise deal with the existing share capital of J Pty Ltd,
Without first giving the Wife 28 days’ notice in writing.
3.
That to the extent that such documents have not been provided to date the Husband, as Director of J Pty Ltd, provide to the Wife within 21 days of the date of these Orders copies of the following documents in relation to each of the entities referred to:
a. Financial Statements (including drafts if final have not been prepared including balance sheet, profit and loss accounts, and appreciation schedules);
b. Tax Returns;
c. Management Accounts:
d. Loan Account Ledger;
e. Business Activity Statements
f. Shareholder Agreement/s together with any schedule;
g. Minutes of meetings of members/directors resolutions and Minutes of board meetings;
h. Documents relating to the issue of shares; and
i. Documents relating to any share transfers,
issued for all within the period 1 January 2014 to date, together with the Constitution for each entity.
4.
That to the extent that such documents have not been provided to date the Husband as trustee for Montez Discretionary Trust, and the Husband as Director of K Pty Ltd as trustee for K Trust, provide to the Wife within 21 days of the date of these Orders copies of the following documents in relation to each of the entities referred to:
a. Financial Statements (including drafts if final have not been prepared including balance sheet, profit and loss accounts, and appreciation schedules);
b. Tax Returns;
c. Management Accounts;
d. Loan Account Ledgers;
e. Business Activity Statements
f. Shareholder Agreements together with any schedules;
g. Minutes of meeting of members/directors resolutions and Minutes of board meetings;
h. Documents relating to the issue of shares; and
i. Documents relating to any share transfers,
issued for the period 30 June 2016.
5.
That the Wife is permitted to provide to the joint expert Mr L the further information and documents to be disclosed in accordance with Orders 2 to 4 inclusive.
6.
That the timeframe of 21 days in Part 15.65(1)(b) of the Family Law Rules 2004 is dispensed with and the Wife is permitted to issue questions to Mr L following the provision of the further information and documents to Mr L in accordance with Order 5.
7.
Pending further Order, to the extent that such documents have not been provided to date, the Husband provide within 14 days to the Wife all documents relating to the share transfer of the 10 ordinary shares held by the Husband as trustee for the Montez Discretionary Trust in H Pty Ltd to J Pty Ltd on or about 17 February 2016 including but not limited to documents evidencing any consideration received, stamp duty paid and valuations obtained.
8.
That, to the extent that such documents have not been provided to date, the Husband provide all documents evidencing the source of the payment made by the Husband to Wife in the amount of $136,881.15 paid by ANZ cheque … dated 4 November 2016.
9.
Subject to order 10, the Husband shall within 90 days of the date of these orders, pay the amount of $44,922 into such bank account as the Wife shall nominate as payment for interim property distribution.
10. In order to facilitate the Husband borrowing funds to provide the amount of $44,922 to the Wife pursuant to order 9, the Wife shall, at the written request of the Husband, sign all necessary documents and do all things necessary to enable the property which the parties jointly own at M Street, Suburb D, NSW … to be used as security for the loan.
11. In the event that either party seeks further disclosure from the other not provided for in these orders, then, within 14 days of the date of these orders, that party shall serve on the other party’s legal representative a request, in writing, in which the party nominates the specified document(s) or class of documents that he or she seeks to be disclosed.
12. The party receiving the request for further disclosure pursuant to Order (11) above must, within 21 days after receiving notice, serve on the requesting party a list of documents identifying:
a. The document(s) in that party’s possession that are within the class of documents sought by the other party;
b. The document(s) no longer in the disclosing party’s possession or control with a brief statement about the circumstances in which the document(s) left the party’s possession or control; and
c. The document(s) for which privilege from production is claimed.
13. Within 14 days of receiving the list of documents referred to in Order (12) above, the requesting party must, in writing, ask the disclosing party to:
a. Produce the document(s) for inspection; or
b. Provide a copy of the document(s).
14. The disclosing party must within 14 days after receiving a notice under Order (13), give the requesting party, at the requesting party’s expense, the copies requested, other than copies of document(s):
a. In relation to which privilege from production is claimed; or
b. That are no longer in the disclosing party’s possession or control.
15. In the event that a party disputes an assertion as to the non-existence or non-possession of a document or documents, or disputes a claim for privilege, that party must, within 28 days of receipt of the list of documents referred to in Order (12) file and serve an Application pursuant to Rule 13.22 of the Family Law Rules 2004 supported by an affidavit addressing those matters set out in Rule 13.22(3) and any other relevant matter.
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
This is made clear in in Esdale & Schenk[29] where Murphy J said:While the cases in respect of matrimonial causes reveal multiple heads of power for the making of any order, those same cases also emphasise that each is much more than a convenient vehicle for achieving the same end. If the property power is relied upon, the relevant requisites of justice and equity must be complied with; if the maintenance power is to be relied upon, the relevant requisites of need, capacity and propriety must be met. So, too, where the costs power is relied upon. The majority in Strahan emphasise this very point by pointing out clearly that the relevant head of power under which the order is sought must be clearly identified.The exercise of the costs power does not merely involve a consideration of the s 117(2A) matters. It also involves paying proper regard to s 117(1). That is, the Application must be judged by reference to the primary position that “each party shall bear his or her own costs”.Even where proceedings involve a matrimonial cause and jurisdiction is not in issue and even where, within those proceedings, an applicant for litigation expenses can establish an entitlement to ultimate relief, it by no means follows that litigation expenses will be awarded by reference to s 117 as the head of power. Section 117(1) remains, as it were, an obstacle that must be overcome. Indeed, it might be thought that this consideration explains why it is almost invariable that applications of this type are brought in reliance upon the power to make interim property orders and not the costs power (emphasis added).[29] [2012] FamCA 111 (12 March 2012) at [66] – [68]; see also Klearchos & Klearchos and Ors [2015] FamCAFC 217 (17 November 2015) at [85] – [91]. Counsel for the wife acknowledged that he was not, at this stage of the proceedings, in a position to address all of the matters set out in section 117(2A). He focussed his argument on section 117(2A)(a) and 117(2A)(c) as justifying the making of an order for costs. Dealing first with section 117(2A)(c), I am not, at this stage of the proceedings, in a position to make a determination in respect to the competing contentions by the parties regarding the appropriateness or otherwise of their conduct in relation to the proceedings. In considering section 117(2A)(a), it is accepted that the wife has access to less financial resources than the husband, although it is agreed that she has equity of approximately $500,000 in the Suburb C property. Counsel for the wife argued, however, that the wife will not be able to borrow funds against the security of the Suburb C property because she is currently unemployed. The wife has not, however, presented evidence of any attempt to borrow such funds nor has the wife presented evidence regarding attempts that she has made to return to the workforce. Accordingly, on the basis of the available evidence, at this stage of the proceedings, I am not satisfied that an order should be made that displaces the presumption set out in section 117(1) of the Act.