Tuohy and Tuohy - [2017] FamCA 756

FAMILY COURT OF AUSTRALIA

TUOHY & TUOHY

[2017] FamCA 756

FAMILY LAW – PROPERTY – Interim orders – Construction of order by consent –Whether payment of monies by husband to wife was to be paid weekly or monthly – Consideration of the construction of the order as a whole – Not an order for payment each calendar month – Where order was for payment of monies each four week period

Family Law Act 1975 (Cth) s 77

Hughes & Hughes [2013] FamCAFC 146
Langford & Coleman (1993) FLC 92-346

APPLICANT:

Mr Tuohy

RESPONDENT:

Ms Tuohy

FILE NUMBER:

ADC

2667

2017

DATE DELIVERED:

25 September 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

19 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Howe Jenkin

COUNSEL FOR THE RESPONDENT:

Mr Lindsay

SOLICITOR FOR THE RESPONDENT:

David Burrell & Co

UPON NOTING the following:-
(a)That the husband will pay or cause to be paid:-
·The children’s private school fees, fixed charges, books and uniforms;
·The children’s swimming lesson costs and other sporting memberships, sporting equipment and competition entry fees;

(b)That the husband does not anticipate that there will be any difficulties in releasing to the wife the valuation report or reports as to the interests of the parties in the B Joint Venture as referred to in paragraph 34.1 of the husband’s affidavit filed 4 August 2017 within four (4) to six (6) weeks.

Orders

That until further order the husband do pay or cause to be paid (and all arrears thereof) to or on behalf of the wife:-

a)The sum of TWO THOUSAND DOLLARS ($2,000) per week or EIGHT THOUSAND SIX HUNDRED AND SIXTY SEVEN DOLLARS ($8,667) per calendar month with the first payment to be made on 9 October 2017;
b)The mortgage payments and outgoings on C Street, D Town (“the D Town property”);;
c)The lease payments on the wife’s motor vehicle;
d)The private health insurance premiums and any gap expenses not covered by medical benefits for the wife.

That Mr E (real estate valuer), Mr F (personal goods and chattels valuer) and G Wines (wine valuers) will be jointly instructed by the parties within twenty one (21) days to undertake the valuations with the parties to agree upon a letter of instruction within fourteen (14) days with the husband to meet the costs of same in the first instance and the wife to reimburse the husband one half of those costs at the time of the making of final orders herein.
That the husband do provide to the wife within fourteen (14) days copies of any partnership agreement or joint venture agreement between Tuohy Family Trust and the entity or entities controlled by Mr H currently trading as B Pty Ltd.
That the wife have leave to amend her Application within twenty eight (28) days.
That the husband have leave to amend his Response within a further twenty eight (28) days thereafter.
That paragraph 16 of the interim…

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 Tuohy and Tuohy

Details

AGLC: Tuohy and Tuohy [2017] FamCA 756
Case: [2017] FamCA 756
Decision Date: 25 September 2017

CaseChat Overview and Summary

In the matter of *Tuohy and Tuohy*, Berman J of the Federal Circuit Court of Australia made orders concerning interim financial arrangements and procedural matters in a family law proceeding between a husband and wife. The dispute involved the division of property and the provision of financial support pending final resolution.

The court was required to determine the terms of interim spousal maintenance, the allocation of responsibility for property valuations, the disclosure of certain business documents, and the timeline for amending pleadings. Additionally, the court considered the disposition of other interim applications.

Berman J ordered the husband to pay interim spousal maintenance of $2,000 per week, along with specific expenses including mortgage payments on the D Town property, lease payments for the wife's motor vehicle, and private health insurance costs. The court also directed the joint instruction of valuers for real estate, personal goods, and wine, with the husband to bear the initial costs, to be reimbursed by the wife for half upon final orders. The husband was further ordered to provide copies of partnership or joint venture agreements between the Tuohy Family Trust and B Pty Ltd. Leave was granted to both parties to amend their respective applications, and the majority of the remaining interim proceedings were dismissed, with one specific interim order adjourned for further hearing.

Orders

Orders of the court

That until further order the husband do pay or cause to be paid (and all arrears thereof) to or on behalf of the wife:-

a) The sum of TWO THOUSAND DOLLARS ($2,000) per week or EIGHT THOUSAND SIX HUNDRED AND SIXTY SEVEN DOLLARS ($8,667) per calendar month with the first payment to be made on 9 October 2017;

b) The mortgage payments and outgoings on C Street, D Town (“the D Town property”);;

c) The lease payments on the wife’s motor vehicle;

d) The private health insurance premiums and any gap expenses not covered by medical benefits for the wife.

That Mr E (real estate valuer), Mr F (personal goods and chattels valuer) and G Wines (wine valuers) will be jointly instructed by the parties within twenty one (21) days to undertake the valuations with the parties to agree upon a letter of instruction within fourteen (14) days with the husband to meet the costs of same in the first instance and the wife to reimburse the husband one half of those costs at the time of the making of final orders herein.

That the husband do provide to the wife within fourteen (14) days copies of any partnership agreement or joint venture agreement between Tuohy Family Trust and the entity or entities controlled by Mr H currently trading as B Pty Ltd.

That the wife have leave to amend her Application within twenty eight (28) days.

That the husband have leave to amend his Response within a further twenty eight (28) days thereafter.

That paragraph 16 of the interim orders sought in the wife’s Response be adjourned to 8 December 2017 at 2.15pm(1 hour allowed).

That the balance of the interim proceedings be dismissed.

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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