Auricchio & Auricchio & Ors

[2014] FamCA 185

FAMILY COURT OF AUSTRALIA

AURICCHIO & AURICCHIO AND ORS [2014] FamCA 185

FAMILY LAW – PROPERTY – Interim injunction sought to restrain the Respondents from dealing with property pending a further interim hearing – Where the balance of hardship and the balance of convenience between the parties weighs against the grant of the injunction sought

FAMILY LAW – CHILDREN – Interim Orders – Where the matter is being adjourned for a further interim hearing in approximately two months’ time – Where the Court will have an expert report before it at the further interim hearing – Where the children’s best interests are met by a continuation of the current arrangements operating pending the further interim hearing

Family Law Act 1975 (Cth)

Goode v Goode (2006) FLC 93-286
Kalenjuk and Kalenjuk (1977) FLC 90-218
M v DB (2006) FLC 93-293
Martiniello and Martinello (1981) FLC 91-050
R v Dovey; Ex Parte Ross (1979) FLC 90-616
Seiling and Seiling (1979) FLC 90-627
Stowe and Stowe (1981) FLC 91-027
Waugh v Waugh (2000) FLC 93-052

APPLICANT: Ms Auricchio

FIRST RESPONDENT: Mr Auricchio

SECOND RESPONDENT:	B Property Pty Ltd
THIRD RESPONDENT:	B Pty Ltd
FILE NUMBER:	BRC	1338	of		2014

DATE DELIVERED: 27 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 25 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney QC

SOLICITOR FOR THE APPLICANT: Cassandra Pullos Lawyers

COUNSEL FOR THE RESPONDENTS: Mr North SC

SOLICITOR FOR THE RESPONDENTS: Murdoch Lawyers

Orders

PROPERTY

IT IS ORDERED THAT

Adjournment

1. The applications by the Applicant and Respondents for interim property orders be adjourned for further hearing before Justice Forrest at 10:00am on Wednesday 9 April 2014.

Disclosure

1. The First, Second and Third Respondents give disclosure to the Applicant of the following documents in their possession or control on or before 4:00 pm on Friday 4 April 2014:

   (a)all documents relating to the Q Street project which relate to each of the items set out in the schedule described as “[B] Spending records”;

   (b)all documents relating to any actual or contingent liabilities of B Property Pty Ltd, B Pty Ltd, I Business and the husband including but not limited to liabilities associated with the Q Street project or the development of the property at C Street, Suburb E;

   (c)the most recent financial statements of I Business;

   (d)the bank statements of the bank accounts maintained by B Property Pty Ltd,  B Pty Ltd and I Business for the period since 1 January 2014 and all documents relating to all receipts, payments and other transactions by or on behalf of such companies relating to transactions after the date of the last bank statement including but not limited to invoices, receipts, journals and ledgers;

   (e)all documents relating to the JV agreement including but not limited to communications and agreements between the husband or B Property Pty Ltd and Mr F, Mr A or entities associated with them;

   (f)all documents relating to the development of the Suburb E property including but not limited to profitability projections and dealings and contracts entered into for work relating to that development.

PARENTING

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The children G born … 2002 and H born … 2004 (“the children”) live with the Applicant Mother.

2. The children spend time with the First Respondent Father as agreed between the parents and failing agreement as follows:

   (a)each Friday from 3.00pm after school until 9.30pm;

   (b)each alternate weekend from 9.30am Sunday until 11.30am.

   IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER  

Changeovers

1. That except as otherwise ordered, the First Respondent Father and Applicant Mother shall collect the children from and return them to school during times that they have the children.

2. That if the children are not attending school:

   (a)the children shall be collected by the First Respondent Father or his nominee from the Applicant Mother or her nominee at the commencement of his time with the children at J Park, Suburb K;

   (b)the children shall be collected by the Applicant Mother or her nominee from the First Respondent Father or his nominee at the commencement of her time with the children at L Park, Suburb M. 

Communication

1. That both parents be at liberty to communicate with the children by telephone at all reasonable times, with the parent with whom the children are living, to encourage the children to answer the phone call.

2. That if a child expresses a wish to telephone the other parent at a reasonable time, that the parent with whom the children are living at that time is to assist the child to telephone the other parent.

Information Exchange

1. That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and provide the other parent with seven (7) days’ prior notice of any change.

2. That each parent keep the other informed of changes to the children’s health while the children are in their care and as soon as practicable, notify the other parent of any medical emergency involving the children. 

3. That this Order be authority to any doctor or other medical specialist upon whom the children may attend to provide to the First Respondent Father and the Applicant Mother all information she or he may request with respect to the children and copies of any reports arising.

4. That the parents will communicate about all non-urgent matters and exchange information in respect of the children as required by these Orders via email.   

Involvement with the Children’s school and other activities

1. That both parents be noted as enrolling parents and emergency contacts at the children’s school and extracurricular activities.  

2. That both parents be permitted to liaise directly with the children’s school, sporting bodies and extracurricular activity providers to receive any notices, information, newsletters, school reports, order forms for the children’s school photographs, information about the child’s progress at school as well as parent teacher appointments, and information about extra-curricular activities involving the children.

3. That each parent is at liberty to attend at the children's school and extracurricular activities for the purposes of any function to which parents are normally invited to attend.

Restraints and Injunctions

1. That each of the parents, their servants and agents be hereby restrained by injunction from:

   (a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and

   (b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so. 

2. That each parent be restrained from saying unpleasant or unkind things of or about the other in the presence of or hearing of the children and will not permit any other person to do so.

3. That the Applicant Mother and First Respondent Father for 24 hours immediately prior to the commencement of any time spent with the children (including any period during which the children live with that parent) is restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for:

   (a)any legal medication prescribed for the Applicant Mother or First Respondent Father by a registered medical practitioner and taken or used by the Applicant Mother or First Respondent Father strictly in accordance with such prescription; and

   (b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the Applicant Mother or First Respondent Father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

IT IS FURTHER ORDERED BY CONSENT

Family Report

1. That, pursuant to s 62G(2) of the Family Law Act 1975, the Applicant Mother and the First Respondent Father and the children attend upon Mr N on 23 April 2014 or should he become unavailable on such other suitably qualified person as may be agreed between the parties for the purposes of the preparation of a Family Report, the cost of which is to be shared equally between the parties.

2. That the parents will do all things necessary to facilitate the preparation of the Family Report, including attending upon the Report Writer as requested and making the children available for examination by the Report Writer.

3. That the Family Report address the following matters:

   (a)any views expressed by the children and any matters (such as the child/ren’s maturity or level of understanding) that would affect the weight that the Court should place on those views;

   (b)the matters set out in ss 60CC, of the Family Law Act 1975; and

   (c)any other matters that the Report Writer considers important to the best interests of the children.

Drug Testing

1. That the Applicant Mother and the First Respondent Father undertake hair follicle drug testing (‘the drug test’) with AWDTS as follows:

   (a)that the Applicant Mother and the First Respondent Father be restrained from cutting the hair on their head from the date of this Order until after the completion of the drug test;

   (b)that the Applicant Mother and the First Respondent Father must submit to and follow the guidelines of AWDTS in respect of the drug tests;

   (c)that the Applicant Mother and the First Respondent Father meet the cost of their drug test; and

   (d)that the Applicant Mother and the Respondent Father authorise and direct AWDTS to forward the results of their drug test, to the solicitors for the Applicant Mother and the solicitors for the First Respondent Father. 

Subpoena

1. That the Applicant Mother within seven (7) days of the date of this Order inform the First Respondent Father’s solicitors of the name and address of all treating medical practitioners the Applicant Mother has attended upon since January 2013 to the date of this Order.

2. That the First Respondent Father be granted leave to issue subpoena directed to the Applicant Mother’s medical practitioners and treating professionals as and when the Applicant Mother provides these details pursuant to Order 23.

3. That the First Respondent Father within seven (7) days of the date of this Order inform the Applicant Mother’s solicitors of the name and address of all treating medical practitioners the First Respondent Father has attended upon since January 2013 to the date of this Order.

4. That the Applicant Mother be granted leave to issue subpoena directed to the First Respondent Father’s medical practitioners and treating professionals as and when the First Respondent Father provides these details pursuant to Order 25.

Adjournment

1. That the parenting matters be listed for further Interim Hearing before Registrar Spink at 10:00 am on Friday 23 May 2014.  

Costs

1. That each party’s costs of and incidental to today’s hearing be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Auricchio & Auricchio 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 BRISBANE

FILE NUMBER: BRC 1338  of 2014

Ms Auricchio

Applicant

And

Mr Auricchio

First Respondent

And

B Property Pty Ltd
Second Respondent

And

B Pty Ltd
Third Respondent

REASONS FOR JUDGMENT

1. Ms Auricchio (“the Wife”) and Mr Auricchio (“the Husband”) commenced cohabitation in July 2001, married in January 2002, and finally separated on 28 October 2013. The marriage produced G born in 2002 now aged 11 years and H born in 2004 now aged 9 years. Since separation the Wife and children have continued to reside in the former matrimonial home at O Street, Suburb K (“O Street”).

2. The parents’ separation to date has seemingly been characterised by significant conflict both in relation to financial and parenting issues. As to the latter, it seems a number of temporary parenting plans have been formulated by the parents with the assistance of an expert (Dr P) in that field from time to time in the period since separation.

3. During the marriage and from about 2002 the Husband was employed in his father-in-law’s property development company and gained qualifications as a tradesman. Commencing in about 2011 the Husband engaged in property development in his own right and the companies which are the second and third respondents, owned and controlled by the parties or either of them, have been utilised in that endeavour.

4. In general, the Second Respondent has acquired and held real property and has contracted with the Third Respondent to undertake construction of the relevant residential developments.

5. Since the parties, via the Second and Third Respondents, commenced to engage in property development in 2011 on their own account, two such developments have been completed including the second of those being the property at Q Street, Suburb R upon which was developed a multi residential unit development which units have now been sold (“the Q Street development”).

6. On 8 July 2013 the Second Respondent in its capacity as trustee for the B Trust (a family discretionary trust in which the parties are described as being the primary beneficiaries) entered into a contract to purchase property at C Street, Suburb E (“the Suburb E property”). Settlement of the purchase of that property did not occur until 17 March 2014, after the filing of the current proceedings in circumstances as will shortly be described.

7. In her Initiating Application filed on 14 February 2014 the Wife was seeking injunctions and interim orders, inter alia, in relation to how the proceeds of sale of the Q  Street development were to be dealt with; for preservation of the proceeds of such sales and disclosure in relation to that development. The Wife also sought an order for the sale of the Suburb E property.  

8. However, a number of events since the filing of that application have overtaken the relief originally sought by the Wife. Those events include the following:

   a)Settlement of all sales in the Q  Street development have been completed and the proceeds dispersed;

   b)It seems a substantial component of that disbursement was directed to completion of the purchase on 17 March 2014 of the Suburb E property;

   c)On or about 6 March 2004 the Husband caused the Second Respondent to enter into finance arrangements with the Westpac Bank for a loan facility of $2.75 million to fund a proposed development on the Suburb E property and security for that funding includes fixed and floating charges over each of the Second and Third Respondents;

   d)On 20 March 2014 the Husband caused the Second Respondent to enter into a joint venture agreement with entities associated with Mr F and Mr A respectively in relation to the Suburb E development;

   e)By an Amended Response filed 21 March 2014 the Husband sought, apart from the dismissal of the Wife’s applications for injunctive relief, interim orders for sale of the former matrimonial home and one of the residential units owned by the Wife.

9. As a consequence of these events, as at the hearing on 25 March 2014 the Wife sought a two week adjournment of any hearing of interim property or financial disputes. In the meantime she sought disclosure which, as the hearing progressed, was not in issue save in respect of the time frame in which such disclosure was to be provided by the Husband. That further hearing has now been listed to occur before his Honour Justice Forrest on Wednesday 9 April 2014. I propose to order that such disclosure be made by 4:00pm Friday 4 April 2014 rather than on 1 April 2014 as sought by the Wife.  

10. Pending the further hearing, that is, in the approximately two weeks until that hearing takes place, the Wife sought an interim injunction in these terms:

[Suburb E] property

3.That pending further other order the first, second and third respondents be restrained from:

(a)selling, transferring, further encumbering or disposing or otherwise dealing, or doing any act, signing any document or doing anything to cause the sale, transfer, further encumbrance, disposition or other dealing with the property at [C Street, Suburb E];

(b)entering into or amending any agreement relating to or taking any steps to progress any development of the property at [C Street, Suburb E].

1. For his part, the Husband did not oppose the adjournment nor did he seek to pursue the injunctive relief or property orders sought by way of interim orders in his Amended Response referred to in the meantime involving the sale of the former matrimonial home or other property owned by the Wife.

2. As to parenting issues, the parents agreed upon a number of orders being made by consent including the appointment of the expert Mr N to undertake interviews on 23 April 2014 for the purpose of producing a family report. Both parents sought a further interim hearing of the parenting issues on a date fixed about four weeks subsequent to 23 April 2014 so that such expert report would be available for that hearing.

3. What remained in issue then was the interim parenting orders that ought be made between now and that further hearing of interim parenting issues which I propose to set down before Registrar Spink on 23 May 2014.

Parenting orders pending the further interim hearing

1. It is not in issue that the children should continue to live primarily with the Wife. However, the Husband contends that orders ought now be made for the children to spend time with him:

   a)Every second weekend from after school Friday to before school Monday;

   b)Every Wednesday night from after school Wednesday until before school Thursday;

   c)For half of the forthcoming school holiday period.

2. The Wife proposes that the currently established arrangements ought remain. That is, that the children spend time with the Husband each Friday from 3:00pm after school until 9:30pm and then on each alternate Sunday from 9:30am until 11:30am.

3. I am mindful that in Goode v Goode (2006) FLC 93-286 the Full Court identified the manner in which interim parenting orders are to be determined. I am also mindful that in that case it was recognised that the Court’s consideration of s 60CC matters will necessarily be limited to the extent that findings about such matters may not be able to be made given the nature of the hearing and the extent of disputed issues of fact in a given case.

4. I am also mindful that in this case an interim hearing with the benefit of expert evidence will occur a little less than two months hence.

5. It is not in issue that each parent used recreational drugs during the relationship. However each parent now raises allegations concerning the drug use of the other. In the case of the Husband he raises concerns, denied by the Wife, about continued cocaine use. In the case of the Wife, she raises concerns about the Husband’s use of steroids, denied to be a basis for any concern by the Husband. Each raises those issues as impacting upon the parenting capacity of the other. The agreed interim orders include mechanisms for each party to obtain further evidence on these issues prior to the further interim hearing of the parenting issues.   

6. It would not seem to be in issue that during the children’s lives their mother has been their primary caregiver. There is dispute as to the extent of the Husband’s involvement.

7. It is not in issue that since separation the Husband’s time with the children has been limited. He contends that to be the result of the Wife’s malevolent conduct in not supporting his relationship with the children, particularly as financial disputes have emerged. For her part, the Wife contends that the children’s time with the Husband has been dictated by their own views and she points to the attempts to formulate parenting arrangements with the assistance of Dr P via parenting plans as evidence that the current arrangements are responsive to the children’s own views, particularly those of G.

1. The Wife’s allegations concerning G are, if true, and truly reflect G’s own views, troubling. In summary, the Wife alleges that G has threatened self-harm if, contrary to her own views, an extension of the time she spends with the Husband is imposed upon her. The Wife details numerous examples of comments she alleges G has made to her which she points to as reflecting G’s own views of the Husband and the prospect of spending extended time with him.

2. The Wife also raises concerns, albeit not to the same extent, regarding H. In relation to H the Wife highlights what she translates as anxiety or anxious behaviours.

3. On behalf of the Husband it is submitted that if G’s threats were seriously made or taken by the Wife to be so serious more than one interview with her school counsellor, which seems to be all that has occurred to address this, would have taken place.

4. The Husband essentially contends that any expressed negative views of him by G are simply the product of G’s alignment with the Wife post-separation which the Wife herself has inculcated.

5. In my judgment, having regard to the ages of the children, until their views, in particular those of G, can be ascertained and explored via the forthcoming expert report and in particular the potential responses of these children to extended time with the Husband can be gauged by that expert, their best interests would be met by a continuation of the current arrangements operating.

6. Put another way, I cannot be satisfied that between now and 23 May 2014 it would meet the children’s best interests to alter their existing arrangements given that those arrangements have been arrived at with the involvement of Dr P.  

7. I therefore propose to make the orders for time and communication proposed by the Wife.

Injunctive relief

1. As already noted the issue I am to decide is a narrow one. Should the Wife have, between now and 9 April 2014 when the matter returns to be heard by Forrest J, an injunction in the terms now sought?

2. On behalf of the Wife emphasis is placed upon the conduct of the Husband and the relevant events earlier referred to that have taken place since the filing of the Wife’s application and thus the knowledge of the Husband of the relief the Wife was seeking in that application.

3. It may readily be observed that parties who act on a premise to the effect that it is better to ask for forgiveness than permission find that to be a telling element against them in a Court’s subsequent exercise of a discretion.

4. Part of the Wife’s emphasis referred to is upon the feature that on 17 March 2014 the Husband caused the Second Respondent to apply at least approximately $530,000 from the proceeds of sale of the Q  Street development to the acquisition of the Suburb E development property. It is thus contended that by so doing the Wife was prevented from being able to receive a share of any profit made on the Q Street development. It is further said that this conduct reduced the liquid assets that might otherwise have been available to the parties to retire existing debt.

5. In my judgment that emphasis overlooks the feature that from 2011 the parties had apparently determined that the Husband should engage in property development in his own right via the Second and Third Respondents. To that end, prior to separation and implicitly with the Wife’s agreement, the Q Street development proceeded. Likewise, it was well prior to separation, in July 2013, that the Second Respondent became contractually bound to complete the purchase of the Suburb E development land via a settlement that was to occur on 17 February 2014.

6. At the time the Wife filed her application her primary concern appears to have been that the proceeds of sale of the Q Street development might have been misapplied by the Husband so far as the Wife’s liability to the existing financier was concerned. However, it appears that the subject loan facility has been met from the proceeds of the Q  Street development and Exhibit 1 tendered before me is evidence of the release of the Wife’s personal guarantee. There is no evidence before me as would suggest that monies remain owing with respect to the bank facility provided for the Q Street development.

7. The Second Respondent’s contractual commitment to acquire the Suburb E property was clearly entered into with the Wife’s knowledge prior to separation. It is equally clear that to meet its contractual obligations with respect to the acquisition of the Suburb E property proceeds of the Q Street development would have to be applied or else the Second Respondent would likely be in breach of contract with the attendant consequences of such brief.

8. Given the stringent terms demanded by the vendor for a one month extension from the date of original settlement as contracted of 17 February 2014 until 17 March 2014 it cannot be inferred that if the Second Respondent had defaulted in its contractual obligations the vendor would have acquiesced in that conduct. It is the fact that settlement of that purchase was due to be effected on 17 February 2014 and the current application was filed only three days prior to that.

9. The Wife agitates that it is unknown whether or not the Q Street development was successful in terms of it being profitable. That is part of her purpose in seeking the further disclosure. However, whether or not the Q Street project was profitable or not, the dye was cast well prior to the parties’ separation given the commitment to that project.

10. Likewise the acquisition of the Suburb E property in July 2013 was agreed to with the knowledge that it was being acquired for the purpose of development.

11. It is contended that the injunction now sought might at least now prevent the demolition of the house constructed on the site. It is contended that demolition of the house might reduce the saleability or value of the property. However, no evidence to that effect is proffered. The evidence as it exists is that the site was acquired in July 2013 by the Second Respondent as a development site. The inference available is that the highest and best use of that site is as a development site and that its land value as a development site reflects its market value. It therefore would not seem to follow, as the Wife would have it, that destruction of the house necessarily reduces the property’s value.

12. To similar effect, to suggest as the Wife has that the amount of $530,000 injected from the Q  Street development into the Suburb E development, said to be greater than the Husband’s overall entitlement to property settlement, is to be treated as at risk is difficult to reconcile with the present evidence. Effectively it is suggested that there is a risk of that sum being lost. However, again, the Second Respondent was contractually bound to complete the purchase. In circumstances where a bank has since granted a facility for the development of the property; and other third parties have committed to a joint venture with the Husband via the Second Respondent in the development; there  is evidence at least tending against the proposition that capital applied by the Second Respondent to the Suburb E development should be assumed to be at significant risk.

13. Moreover, given the terms of the joint venture agreement it is not apparent that, even if granted, the injunction in the terms now sought by the Wife would have any relevant utility or effect. It seems that under the terms of the joint venture agreement control of the Suburb E development has vested in a company in which the Court was informed during submissions that the Husband and his two co-venturers, via entities they control, have shareholdings. It is not demonstrated how an injunction granted in the terms now sought, given that those parties are not parties to these proceedings, would have any utility or relevant effect.

14. This is not to be taken as any criticism of the Wife for not having joined those parties. She only learned of things having occurred late last week and the relevant joint venture agreement was signed only on 20 March 2014. It may be that the Wife will seek to have transactions entered into by the Husband set aside under s 106B of the Family Law Act 1975 (Cth) (“the Act”), but that remains to be seen.

15. The Husband’s conduct must also be viewed in the light of the reality that on and from separation it would seem that cooperation of any kind between the Husband and the Wife was non-existent. The Wife chose not to participate in any arrangements to secure further funding that was apparently needed to complete the Q Street development. That was her choice, but it conveyed to the Husband and made apparent the Wife’s position that he was, as it were, on his own in terms of finalising that project. Likewise, the Wife made it clear that she was not prepared to participate in arrangement for any funding of the settlement of the purchase of the Suburb E property. As earlier referred to, these were things that were in contemplation prior to the parties’ separation.

16. The Husband’s negotiation of what appears to be a stand-alone loan facility for the Suburb E property and his involvement of joint venturers would appear to result in the Second Respondent’s exposure with respect to that venture as not being supported by any personal guarantee by the Wife; or secured by other assets of the parties. The present exposure appears to be less than it otherwise would have been if the Husband and Second Respondent had pursued the planned development of the property, as originally contemplated by the parties, without the involvement of those third parties.

17. The Husband has given sworn evidence as to the agreement that has been reached with his joint venturers as to his income whilst the development progresses. That would seem to be his only source of income and is the means by which he will, for example, provide for the children, including their private school fees, as well as addressing or servicing debts and his own financial needs.

18. Whilst the parties are widely apart as to the value and items to be included in their property interests, particularly as regards a debt the Wife alleges is owing to her parents in excess of $800,000, it is not in issue that the Wife currently owns four residential properties including the former matrimonial home; two rental units at Suburb S and a rental unit at Suburb R. Those and other assets in her own name, including two licences, not only produce income for the Wife but constitute a substantial part of the property of the parties or either of them even when the liabilities with respect to those assets is taken into account.

19. I note in passing that whatever be the true position concerning the Wife’s claim about debts owing to her own parents (disputed by the Husband) there is no evidence that the parents are pressing for repayment. Indeed the Husband highlights that despite requests particulars of the debts alleged have not been provided.

20. Undoubtedly the Wife has an existing claim to an order altering property interests under s 79 of the Act. However, I am not persuaded that the Wife discharges the onus she bears to demonstrate that there is a danger that her claim may be defeated or prejudiced unless the injunction now sought is granted.[1] I take into account the overall extent of property interests and the relativity of the asset value held by the Wife to the subject of the present dispute.          

    [1] Waugh v Waugh (2000) FLC 93-052 and M v DB (2006) FLC 93-293.

21. In Waugh’s case the Full Court emphasised that there was a need for an applicant to show that the injunction was necessary, and went no further than was necessary, to prevent the abuse or frustration of the court’s process. It is clear that the court must have regard to both the merits of the claim involved and the degree of danger of any prejudice to the claim that will exist should an injunction not be granted.[2]  

    [2] Seiling and Seiling (1979) FLC 90-627; Stowe and Stowe (1981) FLC 91-027; Martiniello and Martinello (1981) FLC 91-050.

22. It is also clear that the court should also take into account whether and to what extent any proposed injunction will affect the position and rights of third parties.[3]

    [3] Kalenjuk and Kalenjuk (1977) FLC 90-218; R v Dovey; Ex Parte Ross (1979) FLC 90-616.

23. In my judgment the balance of hardship and the balance of convenience between the parties weighs against the grant of the injunction now sought by the Wife. As was highlighted in Martiniello’s case the court should not restrain a spouse from ordinary business dealings unless it can be shown that there is a real fear that a spouse will dissipate funds, or that there is some other good reason for such a restriction.

24. I am not satisfied that even the imposition of a minimum restriction necessary to protect the Wife’s claim under s 79 dictates that the injunction in the terms now sought, until the hearing on 9 April 2014, ought be granted

25. For these reasons I decline to grant the injunction now sought by the Wife pending the further hearing of the proceedings on 9 April 2014.

26. This is perhaps trite, but nothing in these reasons ought be interpreted as preventing the Wife from agitating for injunctive or other relief at the hearing before Forrest J on 9 April 2014. That hearing is to proceed in the context of the further evidence available by the disclosure now ordered.

Orders  

1. Incorporating then those orders about which agreement was reached during the course of the hearing and the further orders proposed to be made, I make the orders set out at the commencement of these reasons.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 27 March 2014.

Associate: 

Date:  27 March 2014