Swift & Swift - [2021] FedCFamC1F 14

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Swift & Swift [2021] FedCFamC1F 14

File number(s): CAC 658 of 2020

Judgment of: GILL J

Date of judgment: 2 September 2021

Catchwords: FAMILY LAW – PROPERTY – Interim distribution – Partial property distribution ordered – Injunction to restrain disposal of proceeds of business sale – Other restraints – Orders relating to disclosure

Legislation:
Family Law Rules 2004 (Cth) r 1.04

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 6.02 and 6.09

Family Law Act 1975 (Cth) ss 79 and 114

Cases cited:
In the Marriage of Sieling (1979) 24 ALR 357

Shelbourne & Shelbourne [2019] FamCAFC 196

Strahan & Strahan [2009] FamCAFC 166

Swift & Swift [2020] FamCA 991

Wenz v Archer (2008) 40 FamLR 212

Zadenev & Zadenev [2013] FamCA 838

Zschokke & Zschokke (1996) FLC 92-693

Division: Division 1 First Instance

Number of paragraphs: 75

Date of hearing: 3 August 2021

Place: Canberra

Counsel for the Applicant: Mr Campton SC

Solicitor for the Applicant: Farrar Gesini Dunn

Counsel for the Respondent: Mr Williams QC

Solicitor for the Respondent: Barkus Doolan
ORDERS

CAC 658 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SWIFT

Applicant

AND:
MR SWIFT

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

2 SEPTEMBER 2021

THE COURT ORDERS THAT:
It is noted that:
The property held in the husband’s name at JJ Street, Suburb KK (“the Suburb KK property”) in the ACT was due for settlement of sale on 9 August 2021.
It is ordered until further order that:
1.The husband shall deal with the proceeds of the sale of the Suburb KK property in the ACT in the following manner:
(a)To pay all costs commissions and expenses of the sale;
(b)To pay the usual rates adjustments;
(c)To pay to Westpac Banking Corporation the amount required to discharge Mortgage registration number …42;
(d)To place the remaining proceeds of sale in an account in the husband's name; and
(e)Unless otherwise provided for in these Orders, or as agreed between the parties the husband must provide the wife with at least 28 days' notice prior to dealing with the proceeds of sale of the Suburb KK property, other than to pay any tax liabilities that may arise as a result of the disposal of the husband's interest in the Suburb KK property in the ACT.

2.The husband forthwith provide the wife’s solicitors with copies of all records evidencing the settlement and terms of the settlement of the Suburb KK property in the ACT.
3.Order 9 of the Orders of 25 November 2020, which provided for the valuation of the Suburb KK property in the ACT is discharged.
4.Within 14 days, the parties shall jointly provide M Valuers with updated instructions advising that the Suburb KK property is not to be valued.
5.Unless otherwise provided for in these orders, or as agreed in writing between the parties the husband is hereby restrained from doing any act or…

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 Swift & Swift

Details

AGLC: Swift & Swift [2021] FedCFamC1F 14
Case: [2021] FedCFamC1F 14
Decision Date

CaseChat Overview and Summary

The case of Swift & Swift was heard in the Federal Circuit and Family Court of Australia, Division 1. The matter concerns an application for an interim property distribution, injunctive relief in respect of the proceeds of the sale of certain property, and disclosure orders. The wife, Ms Swift, sought an interim property distribution, an injunction to restrain the husband from disposing of certain funds, and various disclosure orders. The husband, Mr Swift, opposed the wife’s application in part and sought his own orders, including disclosure orders and a discharge of an order for valuation of a property. Gill J ordered a partial property settlement of $500,000 to be paid to the wife, that 72 per cent of the proceeds of the sale of certain property be restrained, and that the husband provide various documents to the wife and the single expert. Gill J also discharged an order for valuation of a property that had already been sold. Gill J noted that the husband’s conduct, in particular his lack of disclosure, justified the orders made.

Orders