Teh and Muir (No. 2) - [2014] FamCA 960

FAMILY COURT OF AUSTRALIA

TEH & MUIR (NO. 2) [2014] FamCA 960

FAMILY LAW – PROPERTY – Interim Orders – where wife seeks interim property distribution to fund litigation – interim distribution to be sourced from proceeds of real property currently held in trust account – where wife’s entitlement to proceeds of sale are dependent on wife’s application to enforce a Binding Financial Agreement – orders made for the wife to access funds provided she first obtain the written consent of the respondent husband’s legal guardian.
Family Law Act 1975 (Cth) ss 75(2), 79, 80

APPLICANT: Ms Teh

RESPONDENT: Mr Muir by Ms Becke (Case Guardian)

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 1922 of 2014

DATE DELIVERED: 30 October 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 October 2014
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Finlayson

SOLICITOR FOR THE APPLICANT: Greg Finlayson Lawyers

COUNSEL FOR THE RESPONDENT AND CASE GUARDIAN: Ms Hurley

SOLICITOR FOR THE RESPONDENT AND CASE GUARDIAN:
Culshaw Miller Divorce & Family Lawyers

Orders
(1)The Application in a Case filed by the Applicant Wife on 12 August 2014 is dismissed.
(2)Further pursuant to paragraph 4 of the Orders made by this Honourable Court on 25 June 2014 within fourteen [14] days the Applicant Wife do provide all statements dated 1 January 2014 to 15 October 2014 in respect of any bank accounts in her name or in the name of her son MR TEH (also known as …) such statements to include (but not limited to) the following accounts:
(2.1)       NAB accounts numbered:
(2.1.1)     …324;
(2.1.2)     …285;
(2.1.3)     …724;
(2.1.4)     …543;
(2.1.5)     and any other NAB account(s) not yet disclosed;
(2.2)ANZ account(s) disclosed to the Migration Review Tribunal in the name of Ms Teh and Mr Teh;
(2.3)HSBC account(s) disclosed to the Migration Review Tribunal in the name of Ms Teh;
(2.4)Bendigo Bank account(s).

(3)Paragraph 5 of the Orders made by this Honourable Court on 25 June 2014 is amended to read:
5.The applicant wife is restrained and an injunction is hereby granted restraining her from dealing with, disposing of, withdrawing or in any way transacting any funds held in any bank account (including any draw down facility) in the name of the applicant wife, such account held either jointly with another or in the applicant wife’s sole name SAVE AND EXCEPT funds required for the applicant wife’s day to day needs or legal expenses or with the prior written consent of the respondent husband’s legal guardian.

(4)The question of costs is reserved to the final hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Teh & Muir (No. 2) 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 ADELAIDE
FILE NUMBER: ADC 1922 of 2014

Ms Teh
Applicant
And

Mr Muir (Ms Becke – Case Guardian)
Respondent
EX TEMPORE REASONS FOR JUDGMENT
1.The proceedings before me I will describe the…

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 Teh and Muir (No. 2)

Details

AGLC: Teh and Muir (No. 2) [2014] FamCA 960
Case: [2014] FamCA 960
Decision Date: 30 October 2014

CaseChat Overview and Summary

In *Teh and Muir (No. 2)*, Dawe J of the Federal Circuit Court of Australia considered an application by the Applicant Wife and the respondent husband's legal guardian. The proceedings concerned financial matters within a family law context, with the court issuing orders on 25 June 2014 and subsequently dealing with further applications and amendments to those orders.

The court was required to determine whether to dismiss the Applicant Wife's application filed on 12 August 2014. Additionally, the court considered the extent of disclosure of financial documents and the terms of an injunction previously granted.

Dawe J dismissed the Applicant Wife's application. The court ordered the Applicant Wife to provide bank statements for specific accounts held in her name or her son's name, covering the period from 1 January 2014 to 15 October 2014. These included various NAB, ANZ, HSBC, and Bendigo Bank accounts. Furthermore, the court amended an existing injunction, restraining the Applicant Wife from dealing with funds in any bank account in her sole or joint name, with exceptions for day-to-day needs, legal expenses, or with the prior written consent of the respondent husband's legal guardian. The question of costs was reserved for the final hearing.

Orders

Orders of the court

(1) The Application in a Case filed by the Applicant Wife on 12 August 2014 is dismissed.

(2) Further pursuant to paragraph 4 of the Orders made by this Honourable Court on 25 June 2014 within fourteen [14] days the Applicant Wife do provide all statements dated 1 January 2014 to 15 October 2014 in respect of any bank accounts in her name or in the name of her son MR TEH (also known as …) such statements to include (but not limited to) the following accounts:

(2.1) NAB accounts numbered:

(2.1.1) …324;

(2.1.2) …285;

(2.1.3) …724;

(2.1.4) …543;

(2.1.5) and any other NAB account(s) not yet disclosed;

(2.2) ANZ account(s) disclosed to the Migration Review Tribunal in the name of Ms Teh and Mr Teh;

(2.3) HSBC account(s) disclosed to the Migration Review Tribunal in the name of Ms Teh;

(2.4) Bendigo Bank account(s).

(3) Paragraph 5 of the Orders made by this Honourable Court on 25 June 2014 is amended to read:

5. The applicant wife is restrained and an injunction is hereby granted restraining her from dealing with, disposing of, withdrawing or in any way transacting any funds held in any bank account (including any draw down facility) in the name of the applicant wife, such account held either jointly with another or in the applicant wife’s sole name SAVE AND EXCEPT funds required for the applicant wife’s day to day needs or legal expenses or with the prior written consent of the respondent husband’s legal guardian.

(4) The question of costs is reserved to the final hearing.

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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