Tennant and Tennant - [2017] FamCA 839

FAMILY COURT OF AUSTRALIA

TENNANT & TENNANT

[2017] FamCA 839

FAMILY LAW – PROPERTY – Where the Husband is to transfer the proceeds of his bank account to the parties’ joint account – Where the Husband is granted sole use and occupancy of the property – Where the Husband is granted sole responsibility for the management of the businesses – Where the Wife is restrained from fettering the Husband’s management of the businesses – Where the Husband is to make weekly payments to himself and to the Wife from the joint bank account.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Burke v Burke [1987] 2 FLR 71 Davis & Davis (1983) FLC 91-319 G & J [1993] 1 FLR 1008 Page & Page (1981) FLC 91-025 S & S [2002] FamCA 59 Sieling & Sieling (1979) FLC 90-627
APPLICANT:	Mr Tennant

RESPONDENT:

Ms Tennant

FILE NUMBER:

BRC

7048

2017

DATE DELIVERED:

11 October 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

8 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Hunter, Hunter Family Law

COUNSEL FOR THE RESPONDENT:

Ms Minnery of Counsel

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

Within 72 hours of the date of this Order, the Applicant husband shall transfer the proceeds of his National Australia Bank account number …31 to the St George Bank account number ...10 held in the name of the husband and the wife [“the joint St George Bank account (number …10)”].

AND IT IS ORDERED UNTIL FURTHER ORDER, UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING, THAT

The Applicant husband shall have sole use and occupation of the property located at B Street, C Town in the State of New South Wales (“the C Town Property”) from 4.00 pm on 24 October 2017.
The Applicant husband shall have sole responsibility for the management and operation of D Pty Ltd ABN ... (the Company), including the businesses operated from the Company as follows:
(a)Company G; and
(b)Company F,
and the Respondent wife is hereby restrained and an injunction issue restraining her from in any way fettering or interfering in or with the Applicant husband’s sole management and operation of the Company and the businesses.
The parties forthwith notify all of the banking institutions of D Pty Ltd ABN ... and the businesses operated by or though it (being Company G and Company F) that the accounts of the same are to be operated only by the Applicant husband.
The Applicant husband is hereby restrained and an injunction issue restraining him from selling, encumbering or disposing of any of the assets of D Pty Ltd ABN ... and the businesses operated by or though it (being Company G and Company F) other than in the ordinary course of business.
The Respondent wife is hereby restrained and an injunction issue restraining him from selling, encumbering or disposing of any of the assets of D Pty Ltd…

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: [2017] FamCA 839
Decision Date: 11 October 2017

CaseChat Overview and Summary

This matter concerned an application and cross-application filed by the Applicant husband and Respondent wife, respectively. The dispute involved the division of property and financial matters arising from their marital relationship. Hogan J presided over the proceedings.

The court was required to determine the terms of consent orders to be made between the parties, addressing the immediate financial arrangements, property occupation, and the management of business assets. The orders also stipulated detailed disclosure obligations for both parties concerning their financial positions, including assets, liabilities, and business interests, and established a process for the valuation of disputed property and for potential mediation.

The court made orders by consent, reflecting an agreement between the parties on how their financial affairs and property would be managed pending further orders or a final resolution. These orders included provisions for the transfer of funds, sole occupation of a property by the husband, and the husband's sole management of certain companies, with specific injunctions to prevent the disposal of assets outside the ordinary course of business. The orders also mandated the wife's access to view banking records and outlined the payment of various expenses and weekly sums to both parties from a joint account, alongside detailed requirements for financial disclosure and the appointment of single experts for property valuation if agreement could not be reached. The original application and cross-application were dismissed, with provisions made for the parties to make submissions regarding costs.

Orders

Orders of the court

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

Within 72 hours of the date of this Order, the Applicant husband shall transfer the proceeds of his National Australia Bank account number …31 to the St George Bank account number ...10 held in the name of the husband and the wife [“the joint St George Bank account (number …10)”].

AND IT IS ORDERED UNTIL FURTHER ORDER, UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING, THAT

The Applicant husband shall have sole use and occupation of the property located at B Street, C Town in the State of New South Wales (“the C Town Property”) from 4.00 pm on 24 October 2017.

The Applicant husband shall have sole responsibility for the management and operation of D Pty Ltd ABN ... (the Company), including the businesses operated from the Company as follows:

(a) Company G; and

(b) Company F,

and the Respondent wife is hereby restrained and an injunction issue restraining her from in any way fettering or interfering in or with the Applicant husband’s sole management and operation of the Company and the businesses.

The parties forthwith notify all of the banking institutions of D Pty Ltd ABN ... and the businesses operated by or though it (being Company G and Company F) that the accounts of the same are to be operated only by the Applicant husband.

The Applicant husband is hereby restrained and an injunction issue restraining him from selling, encumbering or disposing of any of the assets of D Pty Ltd ABN ... and the businesses operated by or though it (being Company G and Company F) other than in the ordinary course of business.

The Respondent wife is hereby restrained and an injunction issue restraining him from selling, encumbering or disposing of any of the assets of D Pty Ltd ABN ... and the businesses operated by or though it (being Company G and Company F) and her business other than in the ordinary course of business.

The Applicant husband shall forthwith cause all funds received through the operation of Company G and Company F to be paid into the joint St George Bank account (number ...10).

The parties shall forthwith do all acts and things and sign all documents to cause the Respondent wife to have electronic access to the bank accounts of the Company and the businesses and the joint St George Bank account (number ...10) such that she is able to view (only) the banking records.

Company H is hereby authorised to pay forthwith the amount of $45,134.66 into the joint St George Bank account (number ...10) and, thereafter, to pay all funds owing from time to time to Company F into this account as and when they are due and payable.

10.

Save as is provided for in Clauses 11, 21 and 22(d) of this Order, the Applicant husband is restrained and an injunction issue restraining him from making any payments from the joint St George Bank Account (number ...10) without the prior written authorisation of the Respondent wife.

11.

The Applicant husband shall pay, or cause to be paid, the following from the joint St George Bank Account (number ...10):

(a) loan repayments, when the same are due and payable, for the mortgage secured over the C Town property; and

(b) all business expenses incurred in the operation of Company G and Company F, provided that:

(i) he shall provide the Respondent wife with a copy of each invoice within 24 hours of receipt of the same; and

(ii) he shall not pay any invoice within 14 days of its provision to the Respondent wife; and

(c) all refunds of bonds associated with Company G, provided that he first provide the Respondent wife with a copy of each document which substantiates the requirement to repay the same; and

(d) to himself: the amount of $500.00 per week, with the first payment to be made by no later than 4.00 pm on Friday, 13 October 2017; and

(e) to the Respondent wife: the amount of $500.00 per week, with the first payment to be made by no later than 4.00 pm on Friday, 13 October 2017; and

(f) to the Respondent wife: upon her providing him with a signed lease agreement for residential premises in which she intends to live, an amount of the rental payments prescribed in that agreement up to the amount of $450.00 per week, with such sum to be used by the Respondent wife to pay her rental payments; and

(g) the loan repayments, when the same are due and payable, on the loan for the Japanese Car used by the Respondent wife, and the registration and insurance costs, when the same are due and payable, in relation to the Japanese car used by the Respondent wife; and

(h) to the Respondent wife: all amounts she asserts she has paid to date in respect of the business expenses of either Company F or Company G, provided that such expenses are substantiated by invoices which on their face establish that they relate to business expenses of either Company F or Company G; and

(i) to the Respondent wife: the amount of $3,200.00, which is the amount outstanding on her Mastercard credit card.

Disclosure

12.

Within seven (7) days of the date of this Order, the Applicant husband shall provide, or cause to be provided, to the Respondent wife, a copy of all current and outstanding invoices, booking information and deposit information for all bookings for Company G.

13.

Within 21 days of the date of this Order, each party shall provide full and frank disclosure to the other, with this obligation to include (but not be limited to) the provision of the following documents if these have not already been disclosed:

(a) individual taxation returns and notices of assessment for the last three (3) financial years;

(b) details of all current and contingent tax liabilities;

(c) in relation to any company and/or trust entity which that party controls, or in respect of which that party has an interest (either as director/shareholder/beneficiary or appointer of a trust), copies of the following for each entity:

(i) Trust Deed and any amendments thereto;

(ii) Memorandum and Articles of Association and amending documents (if any);

(iii) Shareholders Agreement;

(iv) the last annual return of any trustee company showing directors and shareholders;

(v) the financial documents being the financial statements, balance sheets, profit and loss accounts and taxation returns for the last three (3) financial years;

(vi) a copy of any lease or loan agreements in relation to any of the entities;

(vii) a copy of any guarantees or other banking documents entered into by any of the entities; and

(viii) particulars and documents verifying all current liabilities and ongoing expenses payable in relation to any of the entities.

(d) all supporting documents verifying:

(i) all withdrawals and/or distributions that party has made from the joint St George Bank Account (number ...10) during the past 12 months; and

(ii) all monies deposited into any bank accounts in which that party has a sole direct or indirect interest in respect of and on behalf of the Company and the Businesses for the past 12 months (the Business Monies);

(iii) the use, withdrawal and/or distribution of the Business Monies.

(e) copies of all bank, credit card and mortgage statements for the past 12 months for all accounts in which that party has a direct or indirect interest either solely or with any other person or related entities; and

(f) copies of all insurance policies in that party’s name; and

(g) in relation to any superannuation interest in that party’s name: a copy of the latest statement from the trustee of each fund, detailing the current entitlement. In the case of a self-managed superannuation fund, the following:

(i) copy of the Superannuation Trust Deed; and

(ii) the latest available balance sheet, profit and loss account and tax returns; and

(iii) copy of the memorandum and articles of association of any trustee company; and

(h) a list of the current shareholdings, derivatives, options and any other tradable investment held either by that party solely, jointly, with another person and/or a related entities including the name of each company, the number of shares, derivatives and/or options held and the current value of each investment; and

(i) for all motor vehicles owned and/or in the possession of that party or a related entity, including the following:

(i) a copy of the registration certificate;

(ii) a copy of any valuation reports in respect of the vehicle; and

(iii) a copy of any lease or loan agreements secured by the vehicle.

(j) a list of all real property held by that party solely or jointly with another person and/or a related entity, including valuation/market appraisal of each property, particulars in relation to when the said properties were purchased, and whether or not there is any existing liability in respect of the property including copies of the loan documents and mortgage statements; and

(k) copies of all rates notices for the last 12 months for all real estate in which that party has a direct or indirect interest; and

(l) particulars and supporting documentation in relation to the sale of any assets by that party (solely or jointly with another person and/or a related entity or on behalf of the other party) during the last 12 months, including but not limited to, contract/agreement for sale; and

(m) particulars and supporting documentation in relation to any assets valued at more than $5,000.00 purchased in the last 12 months by that party (solely or jointly with another person and/or a related entity or on behalf of the other party), including but not limited to, all relevant documentation associated with the purchase, including copies of any contract/agreement, how the purchase of the asset was funded, copy of any loan document/mortgage and copies of the current mortgage statement.

Balance Sheet and Valuations

14.

Within 28 days of the date of this Order, the Applicant husband shall provide to the Respondent wife a balance sheet identifying:

(a) the property and superannuation interests of the Applicant husband and Respondent wife;

(b) the estimated value of each item of property and superannuation interest (and if not known, then so stating); and

15.

The Respondent wife shall reply in writing within a further 28 days identifying, in relation to the balance sheet detailed at Clause 14 above:

(a) any additional property or superannuation in which the Respondent wife has an interest, that is not included on the list and any other property that the Respondent wife alleges should be taken into account; and

(b) any item of property or superannuation that is agreed or disputed; and

(d) any value that is agreed or disputed.

16.

The Applicant husband and Respondent wife shall have seven (7) days from the date that the Respondent wife provides her response to the balance sheet in accordance with Clause 15 to negotiate and reach agreement on the value of the property.

17.

In the event that no agreement is reached as to the value for any item in the balance sheet, then the Respondent wife shall provide to the Applicant husband within a further seven (7) days:

(a) the names of three (3) proposed Single Experts; and

(b) an estimate of each proposed Single Expert's fees; and

18.

The Applicant husband shall nominate one of the proposed Single Experts to undertake a joint valuation of the property referred to within seven (7) days of receiving the panel from the Respondent wife in accordance with Clause 17.

19.

In the event that the Applicant husband fails to nominate a Single Expert within seven (7) days of receiving the information the Respondent wife is required by Clause 17 to provide to him, then the Respondent wife shall nominate the Single Expert and such Single Expert shall be appointed pursuant to the Family Law Rules 2004.

20.

The parties shall do all things necessary to appoint the Single Expert to prepare the valuation/s including providing a joint letter of instruction but, if the terms of the joint letter of instruction cannot be agreed, the parties shall be at liberty to provide their own letter of instruction to the Single Expert.

21.

The costs of the Single Expert valuation/s shall be paid equally by the parties but shall be paid on an upfront basis by the Applicant husband from the joint St George Bank Account (number ...10).

Mediation

22.

In the event that, after they receive any valuation/s obtained in accordance with this Order, the parties agree in writing to participate in a mediation, the following shall apply to the organisation of the same:

(a) within 21 days of their written agreement to participate in mediation, the Respondent wife shall provide the Applicant husband with the names of three proposed mediators and an estimate of each proposed mediator's fees; and

(b) within seven (7) days of receiving the information particularised in Clause 22(a) from the Respondent wife, the Applicant husband shall nominate one of the proposed mediators, book a date for mediation and inform the Respondent wife of the same; and

(c) in the event that the Applicant husband fails to comply with Clause 22(b), the Respondent wife shall nominate a mediator from the panel, book a date for mediation and inform the Applicant husband of the same; and

(d) the mediator's costs shall be paid equally by the parties, but shall be paid on an upfront basis by the Applicant husband from the joint St George Bank Account (number ...10).

23.

Save as is provided herein, the Application in a Case filed 11 July 2017 and the cross-application contained within the Response to the Application in a Case filed 4 September 2017 are dismissed.

24.

In the event that a party seeks an order that the other party pay the costs of and incidental to the Application in a Case filed 11 July 2017 and/or the cross-application contained within the Response to the Application in a Case filed 4 September 2017:

(a) the party seeking an order for costs shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and

(b) the party from whom costs are sought shall file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs within a further fourteen (14) days thereafter; and

(c) the party seeking costs shall file and serve any brief further written submissions, strictly in reply to the submissions served by the party from whom the costs are sought, within seven (7) days of its service;

and any such application for costs shall be determined in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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