FAMILY COURT OF AUSTRALIA
Swift & Swift [2020] FamCA 991
File number(s): CAC 658 of 2020 Judgment of: GILL J Date of judgment: 25 November 2020 Catchwords: FAMILY LAW – PROPERTY – interim property distribution – litigation funding – whether it is just and equitable to make adjustment – order made – spousal maintenance – where husband offers an undertaking to continue to support wife – whether the undertaking is a financial resource available to the wife – where undertaking is not regarded as a financial resource of a nature to enable the wife to adequately support herself – orders made – injunctions – restraints on dealing with the property pool – notice period – orders made – binding death nomination – where wife’s claim can be made good by other mechanisms – injunctive relief not granted – documents held by accountant – husband’s duty to disclose Legislation: Family Law Act 1975 (Cth) ss 74, 75, 79, 80, 90SM, 114
Family Law Rules 2004 (Cth)
Cases cited: Bevan and Bevan (1995) FLC 92-600
Gabel v Yardley (2008) 221 FLR 270
Harris and Harris (1993) FLC 92-378
In the marriage of Redman and Redman (1987) FLC 91-805
In the Marriage of Sieling (1979) 24 ALR 357
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Oates and Crest (2008) FLC 93-365; 216 FLR 469
Osferatu v Osferatu [2012] FamCA 408
Shelbourne & Shelbourne [2019] FamCAFC 196
Strahan v Strahan (Interim Property Orders) [2009] FamCAFC 166
Wenz v Archer (2008) 40 Fam LR 212
Number of paragraphs: 74 Date of hearing: 16 November 2020 Place: Canberra Counsel for the Applicant: Mr Kearney SC Counsel for the Respondent: Mr Roberts Solicitor for the Applicant: Farrar Gesini Dunn Solicitor for the Respondent: Barkus Doolan ORDERS
CAC 658 of 2020 BETWEEN: MS SWIFT
Applicant
AND: MR SWIFT
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 NOVEMBER 2020
THE COURT ORDERS, UNTIL FURTHER ORDER:
1.That within 30 days of the date of these Orders the husband pay to the wife’s solicitors Trust Account the sum of $240 000 for her legal fees and disbursements (ACT Law Practice Trust Account BSB: … Account: …99 Reference: …).
2.That by way of interim spousal maintenance the husband pay:
(a)to the Wife $2 000 per month, into an account nominated by the wife, the payment to be paid on the 20th day of each calendar month;
(b)All required repayments, as and when they fall due, for the Westpac loan (account ending …66) secured by Mortgage on the property situate at B Street, Suburb C in the Australian Capital Territory;
(c)All rates, body corporate fees, telephone costs, utilities, repairs, maintenance and insurances for the property situate at B Street, Suburb C, in the Australian Capital Territory, as and when they fall due; and
(d)The balance owing on the Westpac MasterCard (account ending ...81) each month, to a maximum amount of…
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- Swift & Swift [2020] FamCA 991
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- [2020] FamCA 991
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CaseChat Overview and Summary
The court was required to determine whether it was just and equitable to make an interim property adjustment, specifically regarding litigation funding. It also had to consider the adequacy of the husband's undertaking to continue supporting the wife and whether this undertaking constituted a financial resource for her. Further issues included the appropriateness of injunctive relief to restrain dealings with the property pool, the notice period required for such dealings, and the husband's duty to disclose documents held by his accountant.
Gill J ordered the husband to pay a significant sum towards the wife's legal fees and disbursements, and to provide interim spousal maintenance, including monthly payments and responsibility for specific loan repayments and property expenses. The court also imposed restraints on the husband to prevent him from meeting these obligations by recourse to the wife's entitlements or benefits from various entities, including a superannuation fund. Injunctive relief regarding a binding death nomination was not granted, as the wife's claim could be addressed through other mechanisms. The husband was also ordered to provide extensive disclosure of financial records and to jointly instruct single experts for the valuation of various properties and entities.
Orders
Orders of the court
CAC 658 of 2020
BETWEEN:
MS SWIFT
Applicant
AND:
MR SWIFT
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 NOVEMBER 2020
THE COURT ORDERS, UNTIL FURTHER ORDER:
1. That within 30 days of the date of these Orders the husband pay to the wife’s solicitors Trust Account the sum of $240 000 for her legal fees and disbursements (ACT Law Practice Trust Account BSB: … Account: …99 Reference: …).
2. That by way of interim spousal maintenance the husband pay:
(a) to the Wife $2 000 per month, into an account nominated by the wife, the payment to be paid on the 20th day of each calendar month;
(b) All required repayments, as and when they fall due, for the Westpac loan (account ending …66) secured by Mortgage on the property situate at B Street, Suburb C in the Australian Capital Territory;
(c) All rates, body corporate fees, telephone costs, utilities, repairs, maintenance and insurances for the property situate at B Street, Suburb C, in the Australian Capital Territory, as and when they fall due; and
(d) The balance owing on the Westpac MasterCard (account ending ...81) each month, to a maximum amount of $5 000 each month, as and when it becomes payable, as advised by the wife in writing.
3. That unless otherwise agreed in writing by the wife, the husband be and is hereby restrained from causing or permitting the obligations pursuant to Orders 1 and/or 2 herein to be met by recourse to any right or entitlement of the wife or by the purported conferral upon the wife of any benefit from any entity or trust, including but not limited to, by means of any purported distribution or dividend to the wife from any entity or trust and/or from any entitlement of the wife in and to the F Super Fund.
4. That save in accordance with any written direction of the wife following the date of these Orders, the husband be and hereby is restrained from causing or permitting:
(a) any person (including the husband) and/or entity to have recourse to any right or entitlement of the wife in and/or from any person and/or entity;
(b) the conferral upon the wife of any benefit from any entity or trust. including but not limited to by means of any purported distribution or dividend to the wife or the drawing upon any entitlement of the wife;
including but not limited to in respect of any entitlement of the wife in and to the F Super Fund.
5. That the husband provide to the solicitors for the wife within 7 days of the date of these Orders copies of the records and disclosure in accordance with Orders 6, 7 and 8 of these Orders:
6. Copies of all records provided to the relevant Accountants for the purposes of preparing the Accounts, Financial Statements and Tax Returns for the period 1 July 2017 to 30 June 2018.
7. Statements for all shareholdings of the wife in publicly listed companies including but not limited to in relation to D Insurance, G Bank and K Company and copies of statements in relation to each of the shareholdings and all linked accounts from 1 January 2018 to date.
8. Copies of all bank statements showing the deposit of the wife's F Super Fund pension payments.
9. That within 60 days of the date of these Orders, the parties jointly instruct Mr L of M Valuers, or such other expert as agreed between the parties in writing ("the ACT Property Expert") to provide valuations of the property located in the Australian Capital Territory.
10. That within 60 days of the date of these Orders, the parties jointly instruct Mr N of P Company, or such other expert as agreed between the parties in writing ("the Country FF Property Expert”) to provide valuations of the property located in Country FF in which the parties have an interest.
11. That within 14 days of the date of these Orders the parties jointly instruct Ms Q of R Accountants or such other expert as agreed between the parties in writing ("the Financial Expert") to be the single expert with respect to all entities in which the parties' have an interest, as at 30 June 2020, including but not limited to:
(a) Swift Pty Ltd (previously S Pty Ltd) ABN …;
(b) F Super Fund ABN …;
(c) Swift Family Trust ABN …;
(d) T Pty Ltd ACN …;
(e) V Group, including:
(i) V Partnership ABN …;
(ii) W Trust;
(iii) X Trust; and
(iv) Y Pty Ltd.
(f) Z Pty Ltd ABN …, including:
(i) AA Pty Ltd;
(ii) BB Pty Ltd; and
(iii) CC Pty Ltd;
(g) DD Pty Ltd ABN ….
12. That the husband pay the costs of all single expert valuations in the first instance, with the wife to pay half of the costs of the single expert on the finalisation of the property proceedings, subject to further order of the Court.
13. That unless otherwise provided for in these Orders, or as agreed in writing between the parties, until further Order, the parties must provide the other with at least 35 days notice prior to doing any act or thing to:
(a) Deplete the asset pool, save for meeting ongoing expenses as outlined in their Financial Statements filed in these proceedings, or as otherwise agreed in writing;
(b) Make any changes to the structure of the entities in which either party had an interest;
(c) Further encumber the Suburb C Property, including but not limited to withdrawing funds from the home loan and/or offset account;
(d) Deal with any real property in which the parties' have an interest;
(e) Pay the provision of benefits and/or distributions to persons other than to the wife, the husband and his current partner and his underage son.
14. That the wife be at liberty to file a further Amended Application upon receipt of disclosure from the husband.
15. Within 28 days following the provision of the single expert valuations the parties are to confer in relation to engaging in mediation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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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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