Alama and Edde & Ors - [2016] FamCA 156

FAMILY COURT OF AUSTRALIA

ALAMA & EDDE AND ORS

[2016] FamCA 156

FAMILY LAW – INTERIM – INJUNCTION – Where the wife sought interim orders in relation to a restraint on the husband and third parties in dealing with the parties’ assets – Where the husband has not filed any documents in the proceedings to date – Where the husband has recently divested himself of his interest in various assets – Whether an injunction is needed to preserve the parties’ assets pending final hearing – Where the third respondent is joined to the proceedings.

FAMILY LAW – INTERIM – PARENTING – Where the wife has sole care of the children – Where the wife receives no financial assistance from the husband – Where the husband currently lives in the Middle East – Allegations of family violence – Where there is insufficient evidence to determine the allegations on an interim basis – Where it is not practicable for there to be equal or significant and substantial time.

Family Law Act 1975 (Cth) ss 34, 60B, 60CA, 60CC, 60DA, 114,

Family Law Rules 2004 (Cth) rr 6.02, 6.03

Banks & Banks (2015) FLC 93-637
Goode and Goode (2006) FLC 93-286
Mullen and De Bry (2006) FLC 93-293
Waugh and Waugh (2000) FLC 93-052

APPLICANT:

Ms Alama

FIRST RESPONDENT:

Mr Edde

SECOND RESPONDENT:

Mr B Edde

THIRD RESPONDENT:

C Pty Ltd
(ACN …)

FILE NUMBER:

PAC

580

2016

DATE DELIVERED:

16 March 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Carew J

HEARING DATE:

14 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rosic

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

THE FIRST RESPONDENT:

No Appearance

THE SECOND RESPONDENT:

No Appearance

THE THIRD RESPONDENT:

No Appearance

Orders

Parenting

That pending further Order, the children D born … 2006, E born … 2008, F born … 2010 and G born … 2014 live with the Wife.
That pending further Order, the children spend time with the Husband as agreed between the parties.

Property

That pending further Order, the Husband and the Second Respondent be restrained from selling, disposing of or otherwise encumbering whatsoever, whether registered or unregistered the properties currently under construction at H Street, Suburb I including providing to any other person a caveatable interest in that property.
That pending further Order, the Husband and the Second Respondent be restrained from calling for, holding, attending and voting at any meeting in C Pty Ltd or Edde Pty Ltd ("the companies") where it is proposed that all or any one of the following things be done, and that the Husband and the Second Respondent be restrained from voting in favour of any resolution whereby it is proposed that any of the following be done:
4.1To issue any or further share in the said companies;
4.2To alter the rights attaching to any shares or any issued in the said companies;
4.3To register any shares already issued but not registered in the said companies;
4.4To appoint any further directors of the companies;
4.5To dismiss…

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 Alama and Edde & Ors

Details

AGLC: Alama and Edde & Ors [2016] FamCA 156
Case: [2016] FamCA 156
Decision Date: 16 March 2016

CaseChat Overview and Summary

In the Family Court of Australia, Her Honour Justice Carew considered an application by the wife for interim orders concerning the preservation of the parties' assets. The husband had not yet filed any documents in the proceedings but had recently divested himself of interests in various assets. The wife sought to restrain the husband and third parties from dealing with these assets pending a final hearing, and the third respondent was joined to the proceedings.

The primary legal issues before the Court were whether interim injunctions were necessary to preserve the parties' assets and whether the third respondent should be restrained from dealing with its assets and undertaking certain corporate actions. The Court also had to determine the appropriate interim parenting orders.

Her Honour applied the principles governing the grant of interim injunctions, requiring the wife to demonstrate a serious question to be tried and that the balance of convenience favoured the granting of the injunctions. The Court considered the husband's recent divestment of assets and the potential for dissipation of marital property. In relation to the corporate entities, the Court considered the need to maintain the status quo and prevent actions that could prejudice the wife's proprietary claims.

The Court made interim orders that the children live with the wife and spend time with the husband as agreed. The husband and the second respondent were restrained from dealing with properties under construction and from taking certain actions in relation to two companies, C Pty Ltd and Edde Pty Ltd. The third respondent, C Pty Ltd, was also restrained from undertaking similar actions concerning its shares and assets. Liberty to re-list was granted in the event of non-compliance, and the costs of the wife were reserved.

Orders

Orders of the court

Parenting

That pending further Order, the children D born … 2006, E born … 2008, F born … 2010 and G born … 2014 live with the Wife.

That pending further Order, the children spend time with the Husband as agreed between the parties.

Property

That pending further Order, the Husband and the Second Respondent be restrained from selling, disposing of or otherwise encumbering whatsoever, whether registered or unregistered the properties currently under construction at H Street, Suburb I including providing to any other person a caveatable interest in that property.

That pending further Order, the Husband and the Second Respondent be restrained from calling for, holding, attending and voting at any meeting in C Pty Ltd or Edde Pty Ltd ("the companies") where it is proposed that all or any one of the following things be done, and that the Husband and the Second Respondent be restrained from voting in favour of any resolution whereby it is proposed that any of the following be done:

4.1 To issue any or further share in the said companies;

4.2 To alter the rights attaching to any shares or any issued in the said companies;

4.3 To register any shares already issued but not registered in the said companies;

4.4 To appoint any further directors of the companies;

4.5 To dismiss all or any directors presently appointed by the companies;

4.6 To sell, mortgage, charge, encumber or otherwise deal with the assets of the companies;

4.7 To make any loan or advance to the companies;

4.8 To guarantee any loan or contractual liabilities of the companies;

4.9 To alter or vary the signatories to the bank accounts of any of the companies;

4.10 To register a transfer of any shares of the Husband and the Second Respondent to any person.

That pending further Order, the Third Respondent be restrained from:

5.1 Issuing any further shares;

5.2 Altering the rights attaching to any current shareholding;

5.3 Registering any shares already issued but not registered;

5.4 Appointing any further directors;

5.5 Dismissing all or any current directors;

5.6 Selling, mortgaging, charging, encumbering or otherwise dealing with its assets;

5.7 Granting any loan or advancing monies;

5.8 Guaranteeing any loan or contractual liabilities;

5.9 Altering or varying the signatories to any bank accounts currently standing in the name of C Pty Ltd;

5.10 Registering a transfer of any shares.

That the parties have liberty to re-list the matter in the event of non-compliance with these orders.

That pursuant to r 6.02 of the Family Law Rules 2004 (Cth) for C Pty Ltd (ACN …) be joined as the Third Respondent in these proceedings nunc pro tunc.

That within 7 days of the date of these Orders the solicitor for the Second and Third Respondents is to file a Notice of Address for Service.

That the costs of the Applicant Wife be reserved.

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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