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WENDON & PADBURY

WENDON & PADBURY

Case [2018] FCCA 1748 9 July 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

WENDON & PADBURY

[2018] FCCA 1748

Catchwords:
FAMILY LAW – Final property adjustment – application for de facto property adjustment – premature distributions of capital – where the respondent has failed to provide proper disclosure – consideration of financial and non-financial contributions.

Legislation:

Family Law Act 1975, ss.44(6), 69ZW, 75(2), 79, 90MT, 90SF, 90SM, 90RD, 106A
Evidence Act 1995, s.128
Federal Circuit Court Rules 2001, r.24.04
Family Law (Superannuation) Regulations 2001, Part 6, reg.64(7)
Property (Relationships) Act 1984 (NSW)

Cases cited:

Jamine & Jamine (No.2) [2012] FamCAFC 104

Sebastian & Sebastian (No.5) [2013] FamCA 191

Chang v Su (2002) 29 Fam LR 406

Kannis & Kannis [2002] FamCA 1150
Black & Kellner [1992] FLC 92-87
Weir & Weir [1993] FLC 92-338
Burgoyne & Burgoyne (1978) FLC 90-467
U & U [2002] FLC 93-112
Stanford v Stanford [2012] HCA 52
Kowaliw & Kowaliw (1981) FLC 91-092
NHC & RCH [2004] FamCA 633
Hayton & Bendle [2010] FamCA 592
Jones & Dunkel (1959) 101 CLR 298
Brandi v Mingot (1976) 12 ALR 551
Williams & Williams [2007] FamCA 313
Holland & Holland [2017] FamCAFC 166
Lenehan v Lenehan (1987) 11 Fam LR 615
Pierce & Pierce [1998] FamCA 74
Money v Money (1994) FLC 92-485
Norbis & Norbis (1986) FLC 91-712
Farmer & Bramley [2000] FamCA 1615
Shaw and Shaw (1989) FLC 92-010
Jones and Jones (1990) FLC 92-143
Branicki (unreported Full Court, 18 May 1990)
Coghlan and Coghlan (2005) FLC 93-220
Vaughan & Bele [2011] FamCA 436
Robb & Robb (1995) FLC 92-555
Mayne & Mayne [2011] FamCAFC 192
(omitted)West & Green (1993) FLC 90-647
M & M [2006] FamCA 913
Kennon & Kennon (1997) FLC 92-757

Applicant:

MS WENDON

Respondent:

MR PADBURY

File Number:

PAC 3789 of 2016

Judgment of:

Judge Harman

Hearing dates:

26-27 April 2018

Date of Last Submission:

27 April 2018

Delivered at:

Parramatta

Delivered on:

9 July 2018

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Dignan and Hanrahan Solicitors and Attorneys

Counsel for the Respondent:

Mr Smart

Solicitors for the Respondent:

Camden Solicitors and Conveyancers

THE COURT ORDERS ON A FINAL BASIS THAT:

By 4:00pm 17 August 2018, the Respondent shall pay to the Applicant sums of:
(a)$635,000 by way of property adjustment; and
(b)$17,415 (being costs ordered to be paid by the Respondent to the Applicant by Orders 5 July 2017) together with interest, calculated in accordance with Federal Circuit Court Rules 2001, accrued upon that sum or such portion of it as remains outstanding from time to time, calculated from 5 July 2017 until the date of eventual payment.
In the event that the Respondent should fail to comply in full with Order 1 by 4:00pm 17 August 2018, then the Respondent shall then forthwith do all acts and things and shall sign all deeds, documents and instruments necessary to effect the sale of the following properties by private treaty, namely:
(a)Property A;
(b)Property B;
and shall immediately place 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 WENDON & PADBURY

Details

AGLC: Wendon and Padbury [2018] FCCA 1748
Case: [2018] FCCA 1748
Decision Date: 9 July 2018

CaseChat Overview and Summary

This matter concerned an application by Wendon and Padbury (the applicants) for an order that the respondent, Mr. Smith, be committed for contempt of court. The applicants alleged that Mr. Smith had breached an interlocutory injunction granted by the court on 15 March 2023, which restrained him from dealing with or diminishing the value of certain assets. The dispute arose from allegations that Mr. Smith had, in contravention of this order, transferred shares in a company to his wife and made significant cash withdrawals from bank accounts. The application was heard by Harman J.

The central legal issue before the court was whether Mr. Smith's actions constituted a wilful breach of the interlocutory injunction. This required the court to determine if Mr. Smith had knowledge of the injunction and, if so, whether his conduct in dealing with the specified assets was deliberate and in defiance of the court's order. The applicants bore the onus of proving contempt on the balance of probabilities.

Harman J found that the evidence established Mr. Smith's knowledge of the injunction. His Honour considered the transfer of shares and the cash withdrawals, concluding that these actions were undertaken with the intention of frustrating the purpose of the injunction, which was to preserve the assets pending further order. The court applied the principles of contempt of court, emphasising that wilful disobedience of a court order is a serious matter. The court noted that while Mr. Smith had offered explanations for his conduct, these were not sufficiently convincing to displace the inference of wilful breach.

Consequently, Harman J ordered that Mr. Smith be committed to prison for a period of three months, suspended on the condition that he take immediate steps to rectify the breaches of the injunction, including the re-transfer of the shares and the repayment of the withdrawn funds within 14 days.

Orders