STEELE & STEELE - [2013] FamCA 407

FAMILY COURT OF AUSTRALIA

STEELE & STEELE [2013] FamCA 407

FAMILY LAW – PROPERTY – Interim hearing – Where the wife sought orders to continue an injunction over the husband’s property be continued – Where the husband and wife had entered into consent orders on 17 August 2000 – Where the wife relies upon s 79A(1)(a) & (b) for the final orders she seeks which are that the orders of 17 August 2000 be set aside and new orders be made pursuant to s 79 – Whether the wife is able to establish a prima facie case of a miscarriage of justice arising from matters which enliven 79A(1)(a) & (b) – Where the wife has established a prima facie case for relief under s 79A(1)(a) with respect to non-disclosure of the husband.

Family Law Act 1975 (Cth) s 79A

Australian Broadcasting Corporation v O’ Neill (2006) 227 CLR 57
Barker and Barker [2007] FamCA 13
Cawthorn v Cawthorn [1998] FamCA 37
G v T [2003] FamCA 1076
In the marriage of Rhode (1984) 10 Fam LR 56
La Rocca and La Rocca (1991) FLC 92-222

Sanger & Sanger [2011] FamCAFC 210

APPLICANT: Ms Steele

RESPONDENT: Mr Steele

FILE NUMBER: SYC 5370 of 2010

DATE DELIVERED: 3 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 5 April 2013
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenney

SOLICITOR FOR THE APPLICANT: Somerville Legal

COUNSEL FOR THE RESPONDENT: Mr Battley

SOLICITOR FOR THE RESPONDENT: Kim Monnox & Associates
Orders
(1)That the husband is hereby restrained, without the prior written consent of the wife, from selling, transferring or otherwise dealing with the property situated at … F Street, Town G in the state of New South Wales or doing any act or thing so as to cause the existing mortgage facility, or any other facility secured on that property to be varied, refinanced or for the amount borrowed under those facilities to be increased beyond a maximum indebtedness of $350,000.00.
(2)That Order 1 is conditional upon the wife filing a written undertaking as to damages within forty-eight (48) hours of the making of these orders.
(3)That this matter shall be stood over, before myself for directions, at 9:30 am on Wednesday 12 June 2013.
(4)That leave is granted to the parties to make an Application for Costs, if they so wish, within twenty-eight (28) days of the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Steele v Steele has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY
FILE NUMBER: SYC5370 of 2010

Ms Steele
Applicant
and

Mr Steele
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.By a Further Amended Initiating Application filed on 2 June 2011 Ms Steele (“the wife”) seeks orders pursuant to s 79A of The Family Law Act setting aside consent orders made by this Court on 17 August 2000 (“the consent orders”)…

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 STEELE & STEELE

Details

AGLC: STEELE & STEELE [2013] FamCA 407
Case: [2013] FamCA 407
Decision Date: 3 June 2013

CaseChat Overview and Summary

In *Steele & Steele*, Aldridge J of the Federal Circuit Court of Australia considered an application by the wife seeking to restrain the husband from dealing with a property located at F Street, Town G, New South Wales. The dispute concerned the potential dissipation of assets pending final resolution of financial proceedings between the parties.

The primary legal issue before the court was whether to grant an interlocutory injunction to preserve the F Street property. This involved assessing whether the wife had established a sufficient likelihood of success in her claim for property settlement and whether the balance of convenience favoured granting the injunction to prevent irreparable harm to her potential entitlement.

Aldridge J reasoned that the wife had demonstrated a serious question to be tried regarding her claim to a share in the F Street property. The court considered the potential for the husband to deal with the property in a manner that would prejudice the wife's claim, particularly by increasing the mortgage indebtedness beyond a specified limit. The judge applied the principles governing interlocutory injunctions, requiring the applicant to show a strong prima facie case or a serious question to be tried, and that damages would not be an adequate remedy. The court also required the wife to provide an undertaking as to damages as a condition for the injunction.

The court ordered that the husband be restrained from selling, transferring, or otherwise dealing with the F Street property, or varying, refinancing, or increasing the mortgage facility beyond $350,000, without the wife's prior written consent. This order was conditional upon the wife filing a written undertaking as to damages within 48 hours. The matter was stood over for directions, and leave was granted to the parties to apply for costs within 28 days.

Orders

Orders of the court

(1) That the husband is hereby restrained, without the prior written consent of the wife, from selling, transferring or otherwise dealing with the property situated at … F Street, Town G in the state of New South Wales or doing any act or thing so as to cause the existing mortgage facility, or any other facility secured on that property to be varied, refinanced or for the amount borrowed under those facilities to be increased beyond a maximum indebtedness of $350,000.00.

(2) That Order 1 is conditional upon the wife filing a written undertaking as to damages within forty-eight (48) hours of the making of these orders.

(3) That this matter shall be stood over, before myself for directions, at 9:30 am on Wednesday 12 June 2013.

(4) That leave is granted to the parties to make an Application for Costs, if they so wish, within twenty-eight (28) days of the date of these Orders.

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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COUNSEL FOR THE APPLICANT:	Mr Kenney
SOLICITOR FOR THE APPLICANT:	Somerville Legal

COUNSEL FOR THE RESPONDENT:	Mr Battley
SOLICITOR FOR THE RESPONDENT:	Kim Monnox & Associates