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Yates & Wilcox & Ors

Yates & Wilcox & Ors

Case [2016] FamCA 518 28 June 2016

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FAMILY COURT OF AUSTRALIA

YATES & WILCOX AND ORS

[2016] FamCA 518

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the husband seeks an interim property settlement – Where there are numerous issues in dispute between the parties – Where the Court is unable to determine the size and extent of the property pool – Where the Court is unable to determine whether an interim property settlement in favour of the husband can be accommodated at final hearing – Where the Court is unable to find that the interests of justice require an interim property settlement in favour of the husband – Application dismissed.

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Injunctions – Where both parties seek various injunctions restraining the other – Where the Court finds there is a real risk that both parties will engage in conduct to deplete the property pool – Whether the wife should be restrained in dealing with the proceeds of sale of the former matrimonial home – Whether the husband should be restrained from making demands for payment from one of the parties’ corporate entities, a partnership and the wife – Whether the husband should be restrained from taking action in relation to a Statutory Demand issued by him to one of the parties’ corporate entities – Whether the husband should be restrained from seeking to terminate a partnership – Whether the husband should be restrained as a director of the parties’ corporate entities – Orders made.

FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure – Where both parties make allegations of inadequate financial disclosure by the other – Where orders have been previously made for the provision of financial disclosure – Orders made for the parties to each file and serve an affidavit in relation to documents produced or not produced by them.

Family Law Act 1975 (Cth) ss 114(3)
Family Law Rules 2004 (Cth) rr 13.07, 13.22

Hughes & Hughes [2014] FamCA 12
K & K [2008] FamCA 957
Kelleher & Anderson [2007] FamCA 137
Lederer & Hunt (2007) FLC 93-311
Martiniello and Martiniello (1981) FLC 91-050
Medlow & Medlow (2016) FLC 93-692
Menotti & Lamb [2014] FamCA 518
Mullen and De Bry (2006) FLC 93-293
Sieling and Sieling (1979) FLC 90-627
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Woodgate (Trustee) v Northop Hall Pty Ltd [2016] FCA 370

APPLICANT:

Ms Yates

1^st RESPONDENT:

Mr Wilcox

2^nd RESPONDENT:

B Bank

3^rd RESPONDENT:

Wilcox Consolidated (Holdings) Pty Ltd

FILE NUMBER:

SYC

7648

2014

DATE DELIVERED:

28 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

19 February 2016, 3 and 11 May 2016 and by way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lawrence

SOLICITOR FOR THE APPLICANT:

Etheringtons Solicitors

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Bell

SOLICITOR FOR THE 1^ST RESPONDENT:

Horowitz & Bilinsky

FOR THE 2^ND RESPONDENT:

No appearance

FOR THE 3^RD RESPONDENT:

No appearance

Orders pending further order

The Suburb…

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

AGLC: Yates & Wilcox [2016] FamCA 518
Case: [2016] FamCA 518
Decision Date: 28 June 2016

CaseChat Overview and Summary

The husband sought an interim property settlement in proceedings before McClelland J of the Family Court of Australia. The parties were engaged in a dispute concerning the division of their property, with numerous issues remaining unresolved.

The primary legal issue before the Court was whether an interim property settlement in favour of the husband was warranted. This required the Court to determine if it possessed sufficient information to ascertain the size and extent of the property pool, and critically, whether any interim distribution could be accommodated within a final property settlement. The Court also had to consider whether the interests of justice necessitated such an interim order.

McClelland J found that the Court was unable to determine the size and extent of the property pool with the available evidence. Consequently, the Court could not ascertain whether an interim property settlement in favour of the husband could be accommodated at the final hearing. Given these uncertainties, and the inability to find that the interests of justice demanded an interim order, the application was dismissed.

Orders