Adanti and Coli

[2018] FamCA 555

FAMILY COURT OF AUSTRALIA

ADANTI & COLI [2018] FamCA 555

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband refuses to provide full and frank disclosure of his personal and business bank statements – where the wife asserts she is unable to provide bank statements from Country D due to fear of incarceration – where the husband refuses the production of his bank statements due to the wife’s inability to produce hers – where the husband has also failed to provide full and frank disclosure regarding the proceeds of sale from a business – where the wife seeks that the husband also be restrained from dealing with property in Country D – orders made for full and frank disclosure to be provided and restraining the husband from dealing with the Country D property.

Family Law Rules 2004 (Cth)

APPLICANT: Ms Adanti

RESPONDENT: Mr Coli

FILE NUMBER: MLC 5650 of 2017

DATE DELIVERED: 24 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 3 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Littorin

SOLICITOR FOR THE APPLICANT: Ebejer & Associates

THE RESPONDENT: In Person

Orders

IT IS ORDERED BY CONSENT THAT

1. The Husband at his own expense, provide full and frank disclosure of the following documents to the solicitor for the Wife within 14 days of the date of these orders:

   (a)Notice of Assessments with respect to the Husband’s personal tax returns from 2013/14 to present;

   (b)Notice of Assessments with respect to the company tax returns for H Pty Ltd, J Pty Ltd and K Pty Ltd from 2012 to present;

   (c)Bank statements for the Husband’s AMEX account …07 from July 2014 to present;

   (d)BAS statements for H Pty Ltd, J Pty Ltd and K Pty Ltd from 2012 to present;

   (e)Profit and loss statements for K Pty Ltd from 2012 to 2014 and 2016 to 2017;

   (f)Comparable financial documents for Company L, the Husband’s new business in Country D;

   (g)Settlement statement with respect to the sale of Company M (“the business”), the date settlement was effected and the Transfer of Lease;

   (h)Documented evidence of how the proceeds of sale from Company M have been expended;

   (i)Details and evidence of any other assets or liabilities in which the Husband holds an interest.

IT IS ORDERED THAT

1. The Husband at his own expense, provide full and frank disclosure of the following documents to the solicitor for the Wife within 14 days of the date of these orders:

   (a)Business bank statements from July 2014 to present for all bank accounts held in the Husband’s name or jointly with any other person in Australia and Country D;

   (b)Bank statements from July 2014 to present for all personal bank accounts held in the Husband’s name or jointly with any other person in Australia and Country D; and

   (c)Bank statement showing the deposit of the funds from the sale of Company M and the amount that was paid to the Husband for stock that was sold in addition to the sale price of the business.

IT IS ORDERED BY CONSENT THAT

1. The Husband be and is hereby restrained from selling, encumbering or disposing of the interest of the parties or either of them in the following assets:

   (a)J Pty Ltd;

   (b)Company N;

   (c)Warehouse located at O Street, City P, Country D; and

   (d)Any other assets in which the Husband has an interest.

IT IS ORDERED THAT

1. The Husband be and is hereby restrained from selling, encumbering or disposing of the interest of the parties or either of them in the following assets:

   (a)Q Street, City P Country D; and

   (b)Proceeds of sale from Company M.

2. All extant interim applications be dismissed.

3. The matter be placed in the list of cases awaiting allocation for a final hearing.

4. The Husband pay the Wife’s costs of and incidental to this application.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adanti & Coli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5650 of 2017

Ms Adanti

Applicant

And

Mr Coli

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing before me in the Judicial Duty List on 3 July 2018.  Following a contested interim hearing on 9 May 2018, the Senior Registrar made interim parenting orders, otherwise dismissed all interim parenting applications and placed the applications for final parenting orders in the list of cases awaiting allocation to a judicial docket.  He adjourned all extant financial applications to the Judicial Duty List.

2. Although the husband did not seek a review of the orders made by the Senior Registrar, much of the affidavit he filed on 29 June 2018 related to parenting issues, rather than dealing with the financial and procedural issues listed for hearing before me in the Judicial Duty List.  The husband’s affidavit was not only difficult to follow but of little assistance to me in addressing the matters I was required to determine. The husband also filed a Case Outline as he was ordered to do, which similarly did not address the issues listed before me, focusing instead on the final orders it appears the husband is now seeking.    

3. Ultimately the wife did not pursue her application that the balance of the proceeds of sale of the Suburb E property be distributed to her and the parties were able to agree upon most of the other orders she sought. 

4. The dispute was therefore limited to whether or not the husband should be required to provide full and frank disclosure of his business bank statements from July 2014 to present for all bank accounts held in his name or jointly with any other person in Australia and/or Country D and the statements for his personal bank accounts held either in his name or jointly with any other person in Australia and/or Country D.

5. The husband also opposed an order requiring him to produce a bank statement showing the deposit of the funds from the sale of the Company M (“the business”) and showing the amount that was paid to him for stock that was sold in addition to the sale of the business.  The husband was also not prepared to consent to an order requiring him to produce BAS statements for H Pty Ltd, J Pty Ltd and K Pty Ltd (Company M) in 2012 to present.  It was the husband’s submission that he would have to ask his accountant for the documents. In my view, documents prepared on the husband’s instructions by his accountant are documents over which he has control and the husband, not having disputed the relevance of those documents in these proceedings, has an obligation to make those documents available for inspection by the wife. I propose to make an order requiring him to do so.

6. It was the husband’s case that he should not be required and that it was not fair that he be required to produce copies of his bank statements in circumstances where the wife had not produced her bank statements.  It is the wife’s case that she has produced copies of the bank statements for the accounts she holds in Australia but she cannot obtain statements for the accounts she holds in Country D without attending upon the banks in Country D with her personal identification documents.  She further deposes that although she has requested that the statements be sent to her in Australia by post she has been advised by the banks in question that they are unable to do this.  It is the wife’s case that she is fearful of returning to Country D in circumstances where she asserts the husband has reported her to the authorities in Country D as a result of which she might face charges and possible incarceration upon her return to Country D.

7. The husband referred in particular to a statement for an account which referred to an e-banking transfer which he said was evidence that the wife has statements for an account in her name notwithstanding her evidence to the contrary and has access to internet banking which would similarly contradict her evidence that she cannot obtain statements for her accounts in Country D. Whilst there is reference in that statement to an e-transfer, I am not in a position to make findings until the evidence can be tested.

8. Even if the husband is correct and the wife has not been telling the truth about her ability to produce documents with respect to the accounts she holds in Country D that would not in any event obviate the necessity for the husband to provide full and frank disclosure. There being no other objection to their production, I propose to make the order the wife seeks. If it turns out that she could have produced her Country D bank statements and has not done so the Court may ultimately find that she has not met her obligation to provide full and frank disclosure.

9. The other issue in dispute was with respect to the order sought by the wife that the husband be restrained from selling, encumbering or disposing of the interest of the parties or either of them in the property R Street, City P Country D (“City P”) and the order she sought with respect to the balance of the proceeds of sale of the Company M.

10. Whilst the matter was waiting its turn in the list, the husband apparently produced a document which showed the wife as being the owner of City P and he submitted that in those circumstances, it was not necessary for the Court to make an order restraining him from dealing with the property. Although the wife now concedes that she may be the owner of the property, it was her case that given the husband might use his influence in Country D to deal with the property, notwithstanding that he is not the owner, that he nonetheless be restrained from dealing with that property. In support of her application for injunctive relief, the wife relied upon the husband having sold the Company M without first notifying her of his intention to do so and notwithstanding that there were proceedings on foot in this Court. The husband in his affidavit does not take issue with the wife’s evidence. The wife also relied upon the husband’s failure to provide full and frank disclosure, particularly with respect to the sale of Company M and how the proceeds of the sale had been applied.

11. The husband for his part does not suggest that he has provided the wife with any documentary evidence in support of his assertions as to the application of the proceeds of sale of Company M. Although the wife’s evidence of her concerns as to the husband’s possible influence in Country D are yet to be tested, I am satisfied that the husband has acted unilaterally and that his actions may be detrimental to the wife’s claim, particularly in circumstances where most of the assets are in Country D rather than Australia. I am also satisfied that he has not provided full and frank disclosure both with respect to the sale of Company M and generally in relation to his financial affairs. In all of the circumstances, I propose to grant the wife the injunctive relief she seeks with respect to the City P property, albeit the order will be worded slightly differently in circumstances where it now appears that the property may belong to the wife and with respect to any proceeds of the sale of Company M retained by the husband.  

12. The husband also sought orders with respect to the payment of outstanding taxation liabilities. He annexed to his affidavit filed 29 June 2018 Australian Taxation Office (“ATO”) statements with respect to tax owing by J Pty Ltd as at 26 May 2018, K Pty Ltd as at 28 April 2018 and with respect to H Pty Ltd, a letter dated 13 October 2017. These statements do nothing more than show the amounts owing as at these dates and the husband did not adduce any other evidence or produce any documents with respect to periods to which these liabilities related or the basis upon which they were incurred or why they remained outstanding.

13. I do not accept the husband’s submission with respect to the orders having already made provision for the payment of these ATO liabilities. Perhaps not surprisingly given the lack of evidence, the wife did not agree to them being paid, nor am I satisfied that based upon the evidence before me I should make an order for the payment of those liabilities particularly in circumstances where the bulk of the assets are overseas and there are only limited assets in Australia. For the same reason, the wife’s application to distribute those funds to her by way of part property settlement would have been unlikely to succeed. The wife sensibly in the circumstances did not pursue this application. Whilst the ATO has not been paid, monies remain in trust out of which, if necessary, any taxation liability could be satisfied.

14. There are significant areas of factual dispute in this case and the husband in particular makes allegations about the veracity of the wife’s evidence and her credit generally. These factual disputes are unlikely to be resolved until the matter can be determined on a final basis and I am satisfied in these circumstances that the financial matters should be consolidated with the parenting applications already in the list of cases awaiting allocation to a judicial docket. I propose to otherwise dismiss the parties’ respective applications for interim orders.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 24 July 2018.

Associate: 

Date:  24 July 2018