Stierznow-Almer and Almer - [2009] FamCA 577

FAMILY COURT OF AUSTRALIA

STIERZNOW-ALMER & ALMER

[2009] FamCA 577

FAMILY LAW – INTERIM FINANCIAL – Injunctions

Family Law Act 1975 (Cth)

APPLICANT:

Ms Stierznow-Almer

RESPONDENT:

Mr Almer

FILE NUMBER:

PAC

777

2009

DATE DELIVERED:

13 May 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan JR

HEARING DATE:

13 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

SOLICITOR FOR THE APPLICANT:

Navado Lawyers & Solicitors

SOLICITOR FOR THE RESPONDENT:

Husband in person

Orders

Leave is granted to the parties to inspect documents produced on subpoena by the wife.
Orders are made in terms of paragraphs 2, 5, 8 and 14 of Annexure B to the wife’s Initiating Application filed 20 February 2009 as set out hereunder:
“2.That until further order, the Respondent pay direct to the Applicant, for her maintenance, the sum of $500 per week, and that:
a.The first payment, pursuant to these orders be made one week from the date of this order.
b.That such payment be made into the account No […] in the name of the Applicant [Ms Stierznow-Almer] at the [S], branch BSB No […] of the National Australia Bank.
5.That in consideration of the $500 per week being paid to the Applicant in accordance with Order 2 above, that the Respondent be entitled to draw the sum of $500 per week from the Company accounts for his own personal use and benefit.
8.That until further order, the Respondent be responsible for making all mortgage payments to the Commonwealth Bank pursuant to Mortgage No. […] with respect to the matrimonial property at [S] being the whole of the land situate in Folio Identifier […].
14.That the Respondent in his personal capacity or as director and/or shareholder or as trustee, partner or joint venturer be hereby restrained from selling, disposing, transferring, further encumbering or dealing with in any manner whatsoever other than in the normal course of business:
a. The shares, vehicles, equipment (including all [audiovisual] equipment) and any other assets and property of [TS] Pty Limited ACN […] ("The First Company") and any other business, company, trust or partnership that the Respondent or The First Company may have a whole or partial interest in;
b.The shares, vehicles, equipment (including all [audiovisual] equipment) and any other assets and property of [AL] Pty Limited ACN […] ("The Second Company") and any other business, company, trust or partnership that the Respondent or The Second Company may have a whole or partial interest in;
c.The matrimonial home situated at [S] being the whole of the land described in Folio Identifier […].”
That until further order, in addition to his legal obligations to make any other payments whether by his personal capacity or in his capacity as a director or shareholder of any company, the husband is to be responsible for the payment of the hire purchase instalments relating to the Saab motor vehicle driven by the wife including as soon as practicable bringing up to date any arrears in those instalments.
By consent these proceedings…

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.

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Details

Case: [2009] FamCA 577
Decision Date: 13 May 2009

CaseChat Overview and Summary

In the matter of *Stierznow-Almer and Almer*, Judicial Registrar Loughnan of the Federal Circuit Court of Australia considered applications concerning financial relief and property division in a marriage. The dispute involved the wife, Ms. Stierznow-Almer, and the husband, Mr. Almer, who sought orders regarding maintenance, mortgage payments, and the preservation of business assets. The proceedings were transferred to the Sydney Registry and heard on a final basis by consent.

The court was required to determine several key issues, including the appropriate level of spousal maintenance, the responsibility for mortgage payments on the matrimonial home, and the need to restrain the husband from dealing with significant business assets. Additionally, the court considered the husband's obligation to pay hire purchase instalments for a specific motor vehicle and the appointment of an expert to value corporate entities. The parties also consented to the matter being heard on a final basis.

Judicial Registrar Loughnan made orders by consent, granting leave for the wife to inspect documents produced by subpoena. The court ordered the husband to pay $500 per week for the wife's maintenance, with corresponding entitlement for the husband to draw $500 per week from company accounts for his personal use. The husband was also ordered to be responsible for all mortgage payments on the matrimonial home and to pay hire purchase instalments for the wife's vehicle, including any arrears. Crucially, the husband was restrained from selling, disposing of, transferring, encumbering, or otherwise dealing with assets of two companies, TS Pty Limited and AL Pty Limited, and the matrimonial home, except in the normal course of business. The substantive proceedings were adjourned for consideration of the appointment of a single expert to value the corporate entities and for preparation for a final hearing.

Orders

Orders of the court

Leave is granted to the parties to inspect documents produced on subpoena by the wife.

Orders are made in terms of paragraphs 2, 5, 8 and 14 of Annexure B to the wife’s Initiating Application filed 20 February 2009 as set out hereunder:

“2. That until further order, the Respondent pay direct to the Applicant, for her maintenance, the sum of $500 per week, and that:

a. The first payment, pursuant to these orders be made one week from the date of this order.

b. That such payment be made into the account No […] in the name of the Applicant [Ms Stierznow-Almer] at the [S], branch BSB No […] of the National Australia Bank.

5. That in consideration of the $500 per week being paid to the Applicant in accordance with Order 2 above, that the Respondent be entitled to draw the sum of $500 per week from the Company accounts for his own personal use and benefit.

8. That until further order, the Respondent be responsible for making all mortgage payments to the Commonwealth Bank pursuant to Mortgage No. […] with respect to the matrimonial property at [S] being the whole of the land situate in Folio Identifier […].

14. That the Respondent in his personal capacity or as director and/or shareholder or as trustee, partner or joint venturer be hereby restrained from selling, disposing, transferring, further encumbering or dealing with in any manner whatsoever other than in the normal course of business:

a. The shares, vehicles, equipment (including all [audiovisual] equipment) and any other assets and property of [TS] Pty Limited ACN […] ("The First Company") and any other business, company, trust or partnership that the Respondent or The First Company may have a whole or partial interest in;

b. The shares, vehicles, equipment (including all [audiovisual] equipment) and any other assets and property of [AL] Pty Limited ACN […] ("The Second Company") and any other business, company, trust or partnership that the Respondent or The Second Company may have a whole or partial interest in;

c. The matrimonial home situated at [S] being the whole of the land described in Folio Identifier […].”

That until further order, in addition to his legal obligations to make any other payments whether by his personal capacity or in his capacity as a director or shareholder of any company, the husband is to be responsible for the payment of the hire purchase instalments relating to the Saab motor vehicle driven by the wife including as soon as practicable bringing up to date any arrears in those instalments.

By consent these proceedings are transferred to the Sydney Registry of this Court AND the Court noted that the parties consent to the matter being heard on a final basis before Judicial Registrar Loughnan.

The document titled “Draft Order” attached hereto, is Exhibit A.

The substantive proceedings are adjourned to a date to be fixed before a Registrar assigned as the Docket Registrar for these proceedings for consideration of the appointment of a single expert to value the corporate entities TS Pty Ltd and AL Pty Ltd, whether in accordance with Exhibit A or otherwise, and for the making of any other orders for the purposes of preparing these proceedings for final hearing.

Stand over proceedings in relation to subpoenas issued to C Pty Ltd and O Pty Ltd to the date allocated by the Registry pursuant to the last direction. That the solicitor at whose request the subpoenas issued notify the addressee as soon as practicable of the adjourned date.

The Court requested that the Docket Registrar either appoint or dispense with, a Case Assessment Conference Financial and Conciliation Conference in these proceedings.

The Court formally noted that these orders are made in terms of the Undertaking as to Damages given in the terms of paragraph 144 of the wife’s affidavit filed 20 February 2009 through her counsel today.

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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