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 of 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

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

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

Property

1. 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.

2. 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 all or any directors presently appointed by the companies;

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

   4.7To make any loan or advance to the companies;

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

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

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

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

   5.1Issuing any further shares;

   5.2Altering the rights attaching to any current shareholding;

   5.3Registering any shares already issued but not registered;

   5.4Appointing any further directors;

   5.5Dismissing all or any current directors;

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

   5.7Granting any loan or advancing monies;

   5.8Guaranteeing any loan or contractual liabilities;

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

   5.10Registering a transfer of any shares.

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

5. 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.

6. 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.

7. That the costs of the Applicant Wife be reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 580 of 2016

Ms Alama

Applicant

And

Mr Edde
First Respondent

And

Mr B Edde
Second Respondent

 And

C Pty Ltd (CAN…)

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to this dispute are the applicant, Ms Alama, the first respondent, Mr Edde, the second respondent, Mr B Edde, and the third respondent, C Pty Ltd.  For the sake of convenience I will refer to the applicant as ‘the wife’, the first respondent as ‘the husband’, the second respondent as ‘the husband’s cousin’ and the third respondent[1] as ‘the company’.

2. My understanding at the hearing of the wife’s application was that the husband’s cousin and the company had been named as respondents in the Initiating Application. That was not the case. While the husband’s cousin was named as a respondent as permitted by r 6.03 of the Family Law Rules 2004 (Cth) (“the Rules”) on the Initiating Application, the company was not. However, r 6.02(1) relevantly provides:

   A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.

3. As the company is a necessary party I will add the company as a third respondent nunc pro tunc.

4. The wife seeks interlocutory injunctions restraining dealings with property in the sole name or control of the husband’s cousin, interim parenting orders and directions.

5. The wife also seeks interim parenting orders.

Background

1. The husband and wife were both born in the Middle East and married in 2003. The wife migrated to Australia as a very young child and is an Australian citizen. The husband and wife separated, most recently, on 30 December 2015.  There was an earlier separation and reconciliation in 2014.

2. The husband and wife have four children together, namely, D aged 10 years, E aged 7 years, F aged 4 years and G aged 1 year (“the children”).  The children live with the wife and currently spend no time with the husband as he has been in the Middle East since December 2015.

3. An order was made by consent on 27 January 2015 placing the children on the Airport Watch List.

4. At the commencement of the marriage the wife deposes that neither she nor the husband had any assets of significance.  Throughout the marriage the husband and wife had quite distinct roles.  The husband was the income earner and the wife was the homemaker and parent.

5. During the period from in or around 2007 until in or about June 2014, the family lived at various times in a property at J Street, Suburb L (“the Suburb L property”), which had been purchased in the husband’s sole name.  They also lived at various times in the Middle East.  In 2014 the parties separated for a period while living in the Middle East but subsequently reconciled in Australia.

6. In July 2014 the Suburb L property was sold and the entire proceeds of sale were withdrawn from an ANZ bank account in the husband’s sole name and used to purchase a property at H Street, Suburb I in the State of New South Wales (“the Suburb I property”) in the sole name of the husband’s cousin.  Exhibits 2, 3, 4, 5 and 6 corroborate this.  The property is unencumbered.

   The existing building on the [Suburb I] property was demolished and duplexes are currently under construction on the property.  The wife deposes that the husband told her, “As soon as we finish building both the duplexes, we will sell them immediately before the sale price of the duplex drops. After the sale, we need to get the money out of Australia as soon as possible.

7. Until in or about 2013 the husband and his cousin jointly operated a business.  In or about 2013 the wife deposes that her husband told her that he was going to “cancel” the existing business and start up a new business selling materials from a factory.  In or about mid 2013 a new business was commenced from premises at Auburn in the State of New South Wales. The company, jointly owned by the husband and his cousin, conducted this new business.

8. In or about 2014 the wife deposes that the husband divested himself of his interest in the company and told her “I have covered my financial tracks in Australia. … Australian law is not fair because you should not be entitled to half of everything that I own”.

9. The most recent search of the company confirms that the husband is no longer a director or shareholder.

10. The wife has little knowledge of any other asset in which the husband might have an interest.  She deposes having been told by the husband “You can never reach any financial settlement, as my assets are untouchable in [the Middle East]. … We have millions”.

11. The wife currently receives no financial assistance from the husband.  She and the children are living with her parents and are financially dependent on the taxpayer.

12. On 10 February 2016 Registrar Bartlett made an order for substituted service of the husband and the husband has been served in accordance with that order.

13. The husband’s cousin and the company have been served and on 14 March 2016 at a mention before Registrar Tran, were represented by a Mr Naef from Equity Lawyers.  Mr Naef indicated to Registrar Tran that he would be unable to appear at the hearing on 14 March 2016.  Equity Lawyers are yet to file a Notice of Address for Service.

14. By letter dated 11 March 2016 Equity Lawyers advised the wife’s solicitors as follows:

    We confirm that we act for the Second and Third Respondent [sic] in this matter, and note that on Friday 10 March, 2016 this matter was scheduled at short notice for Monday 14 March, 2016 at 10.00am to be heard in relation to the injunction concerning the assets of the Second and Third Respondents.

    We advise that our clients have agreed to the terms of the injunctions as in paragraph [sic] 7, 8 and 9 respectively.

    Please note that the subject property situated at [Suburb I] is currently under construction, and that our client will not proceed in the construction process any further for obvious reasons.

    We advise that our clients reserve their rights for damages.

15. The wife provides an undertaking as to damages.[2]  Her specific instructions to her counsel were that in the event that an order were made requiring her to pay damages she would be able to meet such an order with the assistance of her brother who was present in Court.

    [2] Exhibit 7

16. The wife makes a claim in substantive proceedings for a property adjustment order in her favour representing 70 per cent of the property pool.  She seeks various declaratory orders against the husband’s cousin in relation to the property in his name and/or the name of the company.

17. The matter is listed to come back before a Registrar on 5 April 2016.

Injunctions

1. The injunctions are sought pursuant to s 114 and s 34 of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 34(1) relevantly provides:

   The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds ... as the Court considers appropriate.

3. Section 114(3) relevant provides:

   A court ... may grant an injunction, by interlocutory order or otherwise ... in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

4. The following considerations prior to granting an injunction appear to be well settled by authority:[3]

   a.Whether there is a serious issue to be tried;

   b.The balance of convenience;

   c.Whether there is any objective risk of disposal of assets if the injunction is not granted; and

   d.If it is considered appropriate to issue injunctions they should to the minimum extent required.

   [3] Waugh and Waugh [2000] FamCA 1183; (2000) FLC 93-052 and Mullen and  De Bry  [2006] FamCA 1380; (2006) FLC 93-293

5. In the present case there is certainly a serious issue to be tried.  During the marriage the husband and wife had acquired interests in a home and a business and it would appear each of them made relevant contributions.  In recent times the husband has divested himself of his interest in the property.

6. Whether or not the husband, wife and/or the husband’s cousin have a beneficial interest in the property is a matter to be determined at trial.

7. The wife is not aware of any other property in Australia in which she and the husband have an interest and on the wife’s evidence the husband has made threats to dispose of the proceeds of sale of the Suburb I property to her disadvantage. 

8. Although served, the husband does not seek to be heard.  The wife deposes to the husband having property under his control in the Middle East.

9. The balance of convenience favours the granting of the injunctions.

10. In this case there is an objective risk to the disposal of assets in that there is evidence of the husband divesting himself of assets to his cousin and threatening to deplete the known asset pool in Australia.  Given that the husband has divested himself of his interest in the property, the injunctions sought do not appear to prejudice him, and the husband’s cousin and the company consent to the interim injunctions sought by the wife and have not sought to be heard.

11. The injunctions sought by the wife will preserve the assets pending final determination.

12. I propose to grant the injunctions as sought by the wife in paragraphs 7, 8 and 9 of her Initiating Application for interim orders.

Parenting orders

1. Despite the obvious difficulty faced by a court in determining applications for interim parenting orders, the legislative pathway must be followed.[4]

   [4] Goode and Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637– unnecessary to discuss every s 60CC consideration

2. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

3. Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.

4. Section 60CC then outlines the primary and additional considerations that the court is to take into account in determining what is in the best interests of the child.

5. Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In relation to interim parenting orders s 61DA(3) provides:

   When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

6. As the Full Court held in Goode and Goode[5] an appropriate examination of the relevant legislative provisions involves:

   i)[5] ibid at [82]

   …

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Competing proposals that require determination at this hearing

1. The husband has not filed any material in response to the wife’s application. The wife seeks an order for sole parental responsibility, for the children to live with her and for the husband to spend time with the children as agreed.

The issues in dispute

1. As the husband has filed no material it is not apparent what issues are in dispute.

Agreed or uncontested relevant facts

1. What is not in contention is that the children currently reside in Australia with the wife and spend no time with the husband.  It appears that the wife has historically been the primary carer for the children and that the husband left the children in the wife’s care when he returned to the Middle East last year.

Relevant s 60CC factors

1. The children are currently in the care of the wife and there is no evidence before the court that this is other than an appropriate arrangement.

2. There are allegations by the wife that she and the children were detained in the Middle East by the husband in 2014 contrary to the wife’s wishes and that she and the children have been subjected to family violence.

3. The husband is currently living in the Middle East. It is not clear when or if he will return to Australia.  He has informed the wife that it is his intention to remarry in the Middle East.

4. On the evidence currently before me the husband takes no part in the care or responsibility for the children.

Consideration of s 61DA presumption

1. Given the allegations of family violence and the inability to determine the allegations on an interim basis I find that the presumption does not apply.

If the presumption applies – equal time or significant and substantial time

1. Irrespective of the presumption, the husband is not currently in Australia, thus it is not practicable for there to be equal or significant and substantial time.

What orders are in the best interests of the children

1. The order for the children to live with the wife reflects the current arrangements for the children. I see no need at this juncture to make an order for sole parental responsibility.

2. I am satisfied that the live with order sought by the wife best meets the interests of the children on an interim basis.

Miscellaneous

1. As this matter will be returning to a Registrar on 5 April 2016 I do not propose to make any order for valuations or disclosure without the respondents having an opportunity to be heard.

2. As the respondents were served but failed to appear I propose to reserve the wife’s costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 March 2016.

Associate: 

Date:  16 March 2016