SEWIN & CHEALS - [2020] FamCA 820

FAMILY COURT OF AUSTRALIA

SEWIN & CHEALS

[2020] FamCA 820

FAMILY LAW – PROPERTY – Interim property settlement – Where the wife seeks an interim property distribution – Application pursuant to section 79 of the Family Law Act 1975 (Cth) – Consideration of the two-step approach in respect of interim property applications – Where it is just and equitable to make an interim distribution as sought by the wife.

FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure – Where both parties seek orders for disclosure – Where the wife asserts that the husband has failed to provide adequate disclosure in the proceedings – Orders made as sought by each of the parties as to disclosure.

FAMILY LAW – INJUNCTIONS – Where the wife seeks that the husband be restrained from further encumbering or dealing with two of the parties’ investment properties – Where the husband opposed this on the basis that he is currently further encumbering the investment properties in failing to meet mortgage repayments – Where there are currently interim orders in place requiring the husband to ensure all rental income for the investment properties is transferred into the respective loan accounts – Application dismissed.

Family Law Act 1975 (Cth) ss 75, 79, 80, 114
Family Law Rules 2004 (Cth) r 13.01

In the marriage of Biltoft (1995) FLC 92-614
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Stanford v Stanford [2012] HCA 52
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Tate & Tate (2000) FLC 93-047
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT:

Ms Sewin

RESPONDENT:

Mr Cheals

INTERVENOR:

Ms Nang & Mr G Cheals

FILE NUMBER:

PAC

4193

2018

DATE DELIVERED:

28 September 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

15 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

El Baba Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Brighton Lawyers

COUNSEL FOR THE INTERVENOR:

SOLICITOR FOR THE INTERVENOR:

Mr Johnston

Orders

Disclosure

That within fourteen (14) days of the date of these orders, the Husband provide by way of financial disclosure to the Wife if not already provided:
(a)       Copies of all home loan account and mortgage statements for the period from 1 July 2014 to present for any account in the Husband’s name (whether solely or jointly owned with any other person or in trust) and in the name of any entity in which he has an interest, and any property in which he has an equitable interest including but not limited to:
(i)L Street, Suburb H NSW (“the Suburb H Property”);
(ii)A Street, Suburb B NSW (“the Suburb B property”); and
(iii)C Street, Suburb D NSW (“the Suburb D Property”).
(b)       Copies of all income tax returns, notices of assessment and BAS returns for the period from 1 July 2015 to present for the Husband personally and for any entity in which he has an interest (such as a private company, trust or partnership);
(c)       Details…

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 SEWIN & CHEALS

Details

AGLC: SEWIN & CHEALS [2020] FamCA 820
Case: [2020] FamCA 820
Decision Date: 28 September 2020

CaseChat Overview and Summary

In the matter of SEWIN & CHEALS, the wife sought interim property settlement orders and an injunction against the husband. The wife also sought orders for disclosure from the husband, asserting he had failed to provide adequate disclosure. The husband opposed the wife's application for an injunction, arguing that he was already encumbering the properties due to failing mortgage repayments. The court was required to determine whether it was just and equitable to make an interim property distribution, whether to grant the injunction sought by the wife, and to make orders regarding disclosure for both parties.

Hannam J considered the two-step approach for interim property applications, which involves determining if it is just and equitable to make an interim distribution. The court found that it was just and equitable to make an interim distribution as sought by the wife. Regarding the injunction, the court noted that interim orders were already in place requiring the husband to ensure rental income from the investment properties was transferred to the respective loan accounts. Consequently, the application for an injunction was dismissed. Orders were made for disclosure from both parties, with detailed requirements for the husband regarding financial documents, property appraisals, and asset disposals, and specific disclosure requirements for the wife concerning Centrelink benefits, motor vehicle registration, bank statements, tax returns, superannuation, and child support arrangements.

The court ordered that upon the completion of the sale of either the Suburb B or Suburb D property, whichever settled first, the proceeds would be applied first to sale costs, then to discharge the mortgage. Following this, $80,000 was to be paid to the wife into her solicitors' trust account, to be advanced towards her costs or expenses and accounted for at final trial. The remaining balance was to be held in a controlled monies account by the legal representative handling the sale.

Orders

Orders of the court

Disclosure

That within fourteen (14) days of the date of these orders, the Husband provide by way of financial disclosure to the Wife if not already provided:

(a) Copies of all home loan account and mortgage statements for the period from 1 July 2014 to present for any account in the Husband’s name (whether solely or jointly owned with any other person or in trust) and in the name of any entity in which he has an interest, and any property in which he has an equitable interest including but not limited to:

(i) L Street, Suburb H NSW (“the Suburb H Property”);

(ii) A Street, Suburb B NSW (“the Suburb B property”); and

(iii) C Street, Suburb D NSW (“the Suburb D Property”).

(b) Copies of all income tax returns, notices of assessment and BAS returns for the period from 1 July 2015 to present for the Husband personally and for any entity in which he has an interest (such as a private company, trust or partnership);

(d) Bank details and account numbers for all accounts that the Husband has held since 1 July 2013 to present whether solely or jointly owned with any other person;

(e) Copies of all bank statements for the period from 1 July 2013 to present for any account in the Husband’s name (whether solely or jointly owned with any other person or in trust) and in the name of any entity in which the husband has an interest such as a private company, trust or partnership;

(f) Copies of all credit card statements for the period from 1 July 2015 to present for any account in the Husband’s name (whether solely or jointly owned with any other person or in trust) and in the name of any entity in which the husband has an interest;

(g) Copies of market appraisals for any properties held in the name of the Husband (whether solely or jointly owned with any other person or in trust or in which the Husband has an equitable interest);

(h) Copies of registration certificates and sales receipts/tax invoices in respect of all vehicles registered or purchased in the name of the Husband for the period from 1 July 2018 to present;

(i) Copies the Husband’s three most recent payslips;

(j) Details of any assets that the Husband has disposed of since separation and where the proceeds of that sale have been distributed.

(k) Details and particulars of all incurred rent and revenue from any property in which the Husband has a legal or equitable interest, including but not limited to:

(i) the Suburb B property; and

(ii) the Suburb D Property.

(l) Copies of all invoices and payment receipts for legal fees incurred on behalf of the Husband since January 2018 including but not limited to those due payable to Brighton Lawyers Pty Ltd.

That within FOURTEEN (14) days of the date of these orders, the Wife provides by way of financial disclosure to the Husband the following:

(a) Copies of documents from Centrelink in relation to benefits granted to the Wife for the period 1 January 2018 to 31 May 2020;

(b) Certificate of registration for any motor vehicle registered in the wife’s name;

(i) K Bank, … …16; and

(ii) ANZ, … …68.

(d) Individual Tax return and Notice of Assessment for the financial years 2017-2018 and 2018-2019;

(e) Superannuation statement for the financial years 2017-18 and 2018-2019, and documents reflecting the current balance;

(f) Child support assessment notice or Child Support Agreement which governs the amount payable by the Wife’s ex-husband Mr J for the two children X, DOB … 2008 and Y, DOB … 2012;

(g) In the event that there are no documents to be produced under (f), all documents and correspondence governing a payment of $628.11 by Mr J on a fortnightly basis; and

(h) Parenting plan or parenting orders which govern the arrangement of the children between the Wife and her ex-husband Mr J in relation to the two children X, DOB … 2008 and Y, DOB … 2012.

Interim Property Adjustment

That on the completion of the sale of the Suburb B and/or Suburb D Property, whichever settlement shall occur first, the proceeds of the sales shall be distributed as follows:

(a) Payment of the real estate agent’s commission and legal fees and other legal costs associated with the sale;

(b) Payment of the sum required to discharge the mortgage secured on the property;

(c) Payment of $80,000.00 to the Wife into the Wife’s solicitors trust account, and that sum shall be advanced towards her costs or expenses, and will be brought into account by the Court and characterised as the Court sees fit at final trial; and

(d) The balance to be held for the parties in a controlled monies account by the lawyer or conveyancer acting on the sale of each property.

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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