Sheehan and Sheehan - [2008] FMCAfam 655

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHEEHAN & SHEEHAN

[2008] FMCAfam 655

FAMILY LAW – Property – injunction – Mareva order – principles.

Family Law Act 1975, ss.79, 114

Cardile v LED Builders Pty Limited (1999) 198 CLR 380
CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 349
Frigo v Culachi (New South Wales Court of Appeal, unreported 1998)
Jackson v Sterling Industries Limited (1987) 162 CLR 612
Liatos v Liatos (2007) FCA 945
M v DB (2007) 36 FLR 454
National Australia Bank Limited v Bond Brewing Holdings Limited (1990) 169 CLR 271
Patrick Stevedore's Operations Number 2 Pty Limited v Maritime Union of Australia (1998) 195 CLR 1
Pelechowski v Registrar,Court of Appeal (NSW) (1999) 198 CLR 435
The Marriage of BA and RS Waugh (2001) 27 FLR 63

P. Biscoe, Mareva and Anton Pillar Orders, Freezing and Search Orders, (Sydney: LexisNexis - Butterworths, 2005)

Applicant:

MS SHEEHAN

Respondent:

MR SHEEHAN

File Number:

CAC 364 of 2008

Judgment of:

Neville FM

Hearing date:

28 May 2008

Date of Last Submission:

28 May 2008

Delivered at:

Canberra

Delivered on:

6 June 2008

REPRESENTATION

Counsel for the Applicant:

Ms Tonkin

Solicitors for the Applicant:

Elrington Boardman Allport Lawyers

Counsel for the Respondent:

Mr Thomas

Solicitors for the Respondent:

S & T Lawyers

ORDERS

The respondent husband, Mr Sheehan, cause $114,500, being half of the amount specified in the application, to be invested in an interest bearing account in Australia in the names of his solicitors as trustee for Mr Sheehan, pending the final resolution of the proceedings in the Federal Magistrate's Court number CAC364 of 2007, or until further order.
The costs of this application filed on 19 February 2008 be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Sheehan & Sheehan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAC 364 of 2008

MS SHEEHAN

Applicant

And

MR SHEEHAN

Respondent

REASONS FOR JUDGMENT

Introduction

In what follows in these reasons and orders, nothing is or should be taken as expressing or inferring any settled view in relation to any of the substantive issues to be determined at the hearing of the matter next February.
There is one issue for immediate determination in these proceedings. That is whether an order should be made by which the Respondent former husband, Mr Sheehan, should be restrained from reducing a specific bank account below a specified amount of $229,000, save for ordinary bank fees and charges.
The Applicant, Ms Sheehan, claims that her former husband failed to disclose both the account and the full extent of the funds in it. She also claims that the funds form part of the asset pool in relation to which she is seeking orders under s.79 of the Family Law Act1975.

The hearing of that application is fixed for February 2009.
The respondent opposes any order in effect freezing the bank account in question, which is…

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 Sheehan and Sheehan

Details

AGLC: Sheehan and Sheehan [2008] FMCAfam 655
Case: [2008] FMCAfam 655
Decision Date: 6 June 2008

CaseChat Overview and Summary

The parties involved in this case were Mr Sheehan, the respondent husband, and the applicant, whose name is not specified in the text. The dispute arose in the context of family law proceedings, specifically concerning the distribution of assets. The case was heard in the Federal Magistrates Court. The core of the dispute was about the appropriate allocation of a significant sum of money, $114,500, which represented half of the amount specified in the application. This amount was to be invested in an interest-bearing account in Australia, held in the names of Mr Sheehan's solicitors as trustees for him. The decision was made pending the final resolution of the proceedings in the Federal Magistrates Court, case number CAC364 of 2007, or until further order.

The legal issues before the court primarily revolved around the equitable distribution of assets in family law matters. Specifically, the court had to determine how to handle a substantial sum of money in a manner that was fair and just, considering the ongoing nature of the family law proceedings. The court was also required to decide on the form of investment for the specified amount to ensure it would accrue interest for the benefit of Mr Sheehan, yet remain secure and accessible should the need arise during the litigation process.

The court's reasoning was grounded in principles of fairness and the need for interim measures to protect the interests of the parties involved. The decision to invest the money in an interest-bearing account was seen as a prudent step to ensure the value of the asset would not diminish during the pendency of the litigation. The court noted the necessity for a transparent and secure method of holding the funds, which was best achieved by having them managed by Mr Sheehan's solicitors as trustees. This approach ensured that the asset would be safeguarded while also generating interest, which could be beneficial to Mr Sheehan. The court also reserved the costs of the application, indicating that they would be determined at a later stage.

The orders made by the court were precise and clear, aiming to balance the immediate needs of the parties with the long-term resolution of the family law dispute. The primary order mandated that Mr Sheehan instruct his solicitors to invest the specified amount in an interest-bearing account, held in trust, until the final resolution of the case. This measure was intended to prevent any erosion of the asset's value during the litigation. Additionally, the court reserved the decision on the costs of the application, indicating that these would be addressed in due course. This approach allowed the court to maintain flexibility in its cost management while ensuring that the parties were not unduly burdened prematurely.

Orders

Orders of the court

The respondent husband, Mr Sheehan, cause $114,500, being half of the amount specified in the application, to be invested in an interest bearing account in Australia in the names of his solicitors as trustee for Mr Sheehan, pending the final resolution of the proceedings in the Federal Magistrate's Court number CAC364 of 2007, or until further order.

The costs of this application filed on 19 February 2008 be reserved.

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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