Bagnall & Bagnall

[2021] FCCA 1375

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bagnall & Bagnall [2021] FCCA 1375

File number:

AYC 273 of 2021

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

18 June 2021

Catchwords:

FAMILY LAW – Interim property – urgent ex parte interim hearing – where wife seeking urgent interim property settlement – allegations of horrific family violence – injunctions made – orders made for partial property settlement.   

Legislation:

Family Law Act 1975 (Cth) ss 75, 79, 80

Cases cited:

Kyriakos & Kyriakosand Anor (2013) FLC ¶93-528

Marchant & Marchant (2012) FLC ¶93-520

M and DB (2006) FLC ¶93-293

Strahan & Strahan (2011) FLC ¶93-466

Waugh and Waugh (2000) FLC ¶93-052

Number of paragraphs:

43

Date of hearing:

16 June 2021

Place:

Melbourne

Solicitor for the Applicant:

Ms M Matthews of Keating Avery Solicitors

The Respondent:

No Appearance

ORDERS

AYC 273 of 2021

BETWEEN:

MS BAGNALL

Applicant

AND:

MR BAGNALL

Respondent

ORDERS MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDERS:	16 JUNE 2021

RESTRAINING ORDER

THE COURT ORDERS THAT UNTIL FURTHER ORDER:

1.The Respondent Husband, Mr Bagnall, be and is hereby restrained from selling, encumbering or disposing of or dealing with the interest in the parties or either of them in any asset in his or her name or either in which they have, or may have, an interest including but not limited to the following assets:

(a)The parties’ interest in the property known as B Street, Suburb C.

(b)The Respondent Husband’s interest in the property known as D Street, Suburb E;

(c)The Respondent Husband’s interest in interest in the property known as F Street, Suburb G;

(d)Any shares or shareholding owned by the Respondent Husband;

2.The Respondent Husband, Mr Bagnall, be and is hereby restrained from disposing of or transferring or drawing on any part of the balances of any bank account or accounts or bank facility to which he has any interest or ownership including but not limited to any and all of the following;

(a)ANZ Equity Manager account …57; 

(b)Passbook savings account …96;        

(c)L Bank Passbook savings account …53;

(d)L Bank Passbook savings account …68;       

(e)L Bank Passbook savings account …02;       

(f)L Bank Passbook savings account …03;       

(g)L Bank All purpose account …77;    

(h)L Bank All purpose account …75;    

(i)L Bank All purpose account …31;    

(j)L Bank Flexible Loan offset Account …10; 

(k)L Bank Term investment account …53;       

(l)L Bank Term investment account …19;       

(m)L Bank Standard variable loan account …03;

(n)L Bank Visa account number …65;  

3.Save that the Respondent Husband be and is authorised to transfer to a solicitor’s trust account, and not otherwise, for the purpose of application to legal fees and disbursements, if payment of fees has not already been made, as follows:

(a)For the purpose of these proceedings the sum of $10,000; and

(b)For the purpose of criminal charges or proceedings and Crimes Family Violence proceedings the sum of $10,000.

4.The Applicant Wife cause the Respondent Husband cause to be served with a copy of this Order and bring this Order to the attention of Mr J of J Law Firm, solicitors of City K.

5.The costs of and incidental to this application be reserved.

6.There be liberty reserved to the Respondent Husband to apply to vary theses orders on short notice in writing.

7.The further hearing of this matter be listed to Wednesday 30 June 2021 at 9.30am with such hearing to be conducted by video link over ‘Microsoft Teams’.

8.The solicitor for the Applicant Wife cause this Order to be brought to the attention of the ANZ Bank and L Bank as soon as practical and request the cooperation of those banks with the enforcement of these Orders.

9.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on Wednesday 16 June at 3:30pm for further hearing.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

PROPERTY ORDER

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.The Respondent Husband, Ms Bagnall, pay to the Applicant, Wife Ms Bagnall, the sum of $20,000 on or before 4.00pm on 23 June 2021 (“the due date”). 

2.Such payment be brought into account by the Court as a partial property settlement upon the final resolution of these proceedings.

3.In the event such payment has not been received on or before the due date then, pursuant to Section 106A of the Family Law Act, the Applicant Wife Ms Bagnall be and is authorised to execute any deed or instrument, withdrawal slip or transfer authority to give effect to these orders.

4.This order be served as soon as practicable upon the Respondent Husband.

5.The further hearing of this matter be listed to Wednesday 30 June 2021 at 9.30am with such hearing to be conducted by video link over 'Microsoft Teams'.

6.The costs of and incidental to this application be reserved.

7.Liberty reserved for parties to apply to vary these orders on short notice in writing.

AND THE COURT NOTES THAT:

A.The solicitor Mr J be at liberty to provide these orders to a family law solicitor on behalf of the Husband.

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Bagnall & Bagnall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

INTRODUCTION

1. An ex parte order for an injunction is an unusual order.  An ex parte partial property order is a very unusual order.  In a duty list on 16 June 2021 I made such orders and reserved my reasons.  These are those reasons.

2. The application has been brought by the Applicant Wife, Ms Bagnall (‘the Wife’) pursuant to the Family Law Act 1975 (Cth) (‘the Act’). The Respondent Husband is Mr Bagnall (‘the Husband’).

3. On Wednesday, 16 June 2021 the Wife's application for ex parte restraining order and for ex parte partial property settlement of $50,000 came before me in a duty list.  Ex parte means without a party being able to know of or participate in the proceedings.

4. During the morning of 16 June 2021, I made restraining orders and otherwise adjourned the ex parte partial property settlement application to the afternoon.  I made the partial property order that afternoon.

5. The proceedings had only been issued on the preceding Tuesday, 15 June 2021.  The Wife had filed an initiating application financial statement and in affidavit.  The Wife's solicitor had attempted to serve the Husband and bring the documents to his attention by attendance at the local police station where the Husband was in custody, and I infer in the watch house, bail refused.  She told me she was informed by the police officer concerned that the documents had been brought to the Husband's attention and lodged with his property.

6. I regarded the matter as ex parte in the sense that whether or not the Husband had been able to read the documents, being in custody meant he was unlikely to be able to consider the contents, instruct lawyers and/or arrange to appear before me by video link the following day.  I proceeded on the basis that the Husband has not had the opportunity to respond to the Wife's allegations.

   RELEVANT BACKGROUND

7. The Wife has deposed, and I find, that the Wife and the Husband are both 49 years of age, that the parties have been together since they were teenagers, were married in 2001 and separated on 11 December 2020.  The Wife has deposed, and I find, that the parties had two children (now aged 17 and 15) and upon separation the Wife and the children moved to rented accommodation in the same regional city as the former matrimonial home.

8. The Wife's solicitor who appeared on her behalf this day told me and I accept that the Wife had first consulted her in March 2021 and that she had, in May 2021, written on behalf with the Wife, what she described as the “usual solicitors letter” prior to the issue of matrimonial proceedings, to the Husband whereby she requested that he take legal advice and have his lawyer contact her or that he do so himself.  There was no response.

9. The Wife's solicitor told me that she was instructed that on the afternoon of Wednesday, 9 June 2021 the Husband and the Wife were discussing urgent financial relief for the Wife by text message and that the last communication between them that afternoon or evening was confirmation that the Husband would transfer $2,000 to the Wife's bank account for her support.

10. The Wife's solicitor told me that the Wife's need for funds arose, in part, because her employment had been interrupted by the COVID-19 pandemic and the June 2021 restrictions or “lock down”.

    THE EVENTS OF 9 JUNE 2021

11. The terrible and tragic events of later that evening as alleged by the Wife are set out in the Wife's affidavit sworn 11 June 2021 and filed 15 June 2021.

    6.On the night of Wednesday 9 June 2021 I was the victim of a significant assault by the Husband. At approximately midnight the Husband broke down the door of my rental property. He was armed with a bat and a large machete type knife. The Husband proceeded to assault me with the bat and stab me with the knife. He hit me and stabbed me repeatedly. My daughter was present during the assault. I suffered horrific injuries during this assault which included three broken ribs, a broken collarbone and numerous stab wounds to be back and head.

    7.During the assault (the child) was screaming at the Husband "Stop Dad, Stop Dad". The child pulled Mr Bagnall off me and pushed him towards the front door. The child called the police who came immediately.

    8.After the assault I was taken to the City K hospital.

    9.It is unlikely that I will be able to return to work for several weeks if not months.

    10.Mr Bagnall has caused a significant amount of damage to my rental property.

    11.Mr Bagnall was arrested and has been charged with the following offences:

    (a)       Aggravated burglary;

    (b)       Intentionally cause serious injury:

    (c)       Intentionally cause injury:

    (d)       Assault with a weapon;

    (e)       Intentionally cause serious injury in circumstances of a gross violence.

    12.Photographs have been taken of my injuries, the blood left at the scene of the assault and the damage caused when the Husband broke in. I have not attached those photographs to my Affidavit as they are too upsetting however have them available should the Court wish to see them.

    13.The Husband has not made an application for bail at this stage and has been held on remand at City M Police Station. I understand it is likely he will be transferred to the Melbourne Remand Centre. The criminal charges are next listed in the Magistrates Court of Victoria in late 2021.

12. The Wife's solicitor told me that the Wife had been released from hospital that morning and, save for limited funds in the order of approximately $4,000, did not have access to funds and she wished to secure alternative rental accommodation for herself and the parties' two children as soon as possible.

13. The Wife's solicitor told me that on or about 13 June 2021, that is four days after the assault described above, a truck had attended at the former matrimonial home and the Wife feared that the Husband's brother or family or associate had removed property or furniture from the home.

14. The Wife’s solicitor told me that the account described in the Wife's affidavit as item 6, the ANZ joint account, had had about $16,000 in it at the time of taking instructions when the Wife first attended upon her (in March 2021) but that the Wife had ascertained since the assault that the balance had been reduced to only $2,000.

15. The Wife also deposed that during the marriage she had found the Husband to be extremely controlling of the parties finances and that although the former matrimonial home was in joint names, the only assets the Wife had in her sole name was her bank account (the $4,000 described above) and her motorcar to which she attributed value of $7,500.  The Wife deposed that the Husband had numerous accounts with various banks and investments in his name and that he also owned two properties with his brother.  She deposed to being concerned that the Husband's brother may access the accounts in the Husband's name and withdraw funds.

16. In the Wife's affidavit disclosed that she said that the husband had 11 different bank accounts holding funds of approximately $250,000.  The Wife deposed to the parties having a loan or debt to a bank in the sum of approximately $32,000 and that the former matrimonial home she asserted should be regarded as being worth $480,000.  In addition the Wife alleged that the Husband had an interest in two other properties and a share portfolio all of a value not known to her.  The Wife asserted that the assets that she knew of and knew the value of was about $750,000. 

17. In these circumstances which included that the parties' two children are dependent upon her the Wife sought urgent partial property settlement $50,000.  She also sought injunctions restraining the husband from encumbering or disposing of property including the funds in bank accounts.

18. I made orders on the morning of 16 June 2021 restraining the Husband from dealing with his property and bank accounts and at approximately midday the wife's solicitor told me that she was able to serve those orders upon the bank concerned with most of the funds.

19. In the circumstances of the husband being in custody I varied the orders sought by the Wife to provide that the Husband was restrained from withdrawing or transferring funds from the named bank accounts and any others that he had, save for being permitted to transfer $20,000 to solicitors' trust accounts, $10,000 on account of criminal proceedings and $10,000 on account of these proceedings. 

20. The Wife's solicitor had made enquiries to attempt to identify any lawyer acting for the Husband.  She had been informed that the Husband was likely to be represented by a particular lawyer and upon contacting that lawyer was advised that the lawyer did not act.  The Wife's solicitor learned of another lawyer who may be acting in the criminal proceedings.  Over the luncheon adjournment the ex parte restraining order, the application and affidavit of the Wife together with the financial statement were provided by email to the lawyer who it was thought would be acting in the criminal proceedings.

21. That lawyer replied to the effect that he did not yet act, would be unable to contact his client that day, that his time was otherwise committed that afternoon and, in any event, he did not accept instructions in family law matters.

22. The Wife had sought a partial property settlement on an urgent and ex parte basis in the sum of $50,000.  In the circumstances where I had permitted the Husband to draw upon the parties' financial resources to the extent of $20,000 I made an order for a partial property settlement of only $20,000 not $50,000. 

23. It is important that any ex parte order be returnable in court a short, but reasonable, time after the order has been served upon the absent party.  I ordered that the proceedings be adjourned to 9:30am on Wednesday, 30 June 2021.  The Wife will be at liberty to pursue her application for the remainder of those funds, or such other sum as she seeks, on that day.

    SHOULD THE APPLICATION PROCEED EX PARTE?

24. On the Wife's evidence the Husband had, close to the start of matrimonial property proceedings, in circumstances where he occupied or controlled almost all of the parties' assets after a long marriage and immediately after agreeing to provide a modest payment to her, arrived at the home of the Wife and the parties’ two children in the middle of the night armed with a bat and a large knife, broke down the door of the premises and attacked the Wife causing serious injuries and trauma.

25. The irrational and extreme nature of the Husband's alleged behaviour in attending the Wife's home and assaulting her so close to financial discussions between them and some weeks after the Husband has not responded to the “usual solicitor's first letter” causes me to find that there is a real and substantial risk of irrational and extreme behaviour with the parties' property such as damage to property, dissolution or wasting of assets and or removing funds from bank accounts despite the Husband being in custody bail refused.

26. On the Wife's evidence, after a long marriage and raising two children the Wife was suddenly in the position of her home being damaged, the scene of a serious and bloody assault upon her and needing to rent another and with very little to support herself and the children.  In addition the Wife was just released from hospital and recovering from serious injuries and likely traumatised from the assault she had endured.

27. In all these circumstances I found that it was appropriate to proceed by the rare and unusual manner of proceeding urgently and ex parte.

    SHOULD AN ORDER RESTRAINING THE HUSBAND BE MADE?

28. For the same reasons as set out relating to the decision to proceed urgently and ex parte I find that without restraint there is a real risk that that the Husband may seek to further harm the Wife by dealing with the parties' property and his bank accounts even while in custody or of directing others to do so on his behalf.  Notwithstanding this is an interim and ex parte hearing I find that there is real and substantial risk of irrational and extreme behaviour with the parties' property such as damage to property, dissolution or wasting of assets and or removing funds from bank accounts despite the Husband being in custody bail refused.

29. I take into account the caution urged upon me by the precedent authorities including Waugh and Waugh (2000) FLC ¶93-052 and M & DB (2006) FLC ¶93-293. I have attempted to look at the practical immediate effect of these orders on the Husband and do not intend to interfere with his ability to retain solicitors and counsel to advise him and act on his behalf. The circumstances alleged in this case are unfortunately far more urgent and troubling than the circumstances in those cases.

1. The Wife's allegations are partly corroborated by the Wife's solicitor locating and serving the Husband with the documents where he was detained in the local watch house.

2. Given this is ex parte and I have not heard the Husband's account of events and what he says the parties' financial circumstances are, I have determined to only restrain him until further order and to have the proceedings return two weeks hence on 30 June 2021.  I do not know what obligations to service debt the Husband has.  Further I have reserved liberty to apply on short notice to him.  I expect he will be served with my orders while he is in the Melbourne Remand Centre and I take into account how difficult it will be for him to retain and instruct lawyers in these circumstances.

   SHOULD I MAKE AN URGENT AND EX PARTE PARTIAL PROPERTY ORDER?

3. The principles concerning a partial or interim property order are set out by the Full Court of the Family Court of Australia in the matter of Strahan & Strahan (Interim Property Orders) (2011) FLC ¶93-466 (‘Strahan & Strahan’),  Marchant & Marchant (2012) FLC ¶93-520 (‘Marchant & Marchant’) and Kyriakos & Kyriakosand Anor (2013) FLC ¶93-528 (‘Kyriakos & Kyriakos’).

4. Those principles include the following and the paragraph numbers are from Strahan & Strahan:

   (a)the first step in an interim property application is to resolve whether to exercise the power to make a property order before a final hearing and if it is resolved to do so then the second step involves the exercise of that power: see [118].

   (b)it is preferable and the usual order that there be one final hearing of section 79 proceedings: see [114] & [132] & [225].

   (c)when considering whether to exercise the power under section 79 and section 80(1)(h) the overarching consideration is the interests of justice and all that is required is that in the circumstances it is appropriate to exercise the power: see [132].

   (d)a court is required to undertake consideration of matters relevant to section 79 (4) and section 75 (2) but a consideration of such matters may be brief and if it seems likely that the applicant will receive a property settlement of more than that sought that would be sufficient to enable the part property orders to be made: see [137].

   (e)for an interim property settlement order more is required than the mere fact that upon final hearing the applicant would receive the property being sought or an amount in excess of that [139].

   (f)for an interim property settlement order it is “the source of power that determines the necessary preconditions and relevant considerations for making the order”: see Kyriakos & Kyriakos at [37]-[38] and Strahan & Strahan at [84] and [86].

   (g)an interim property order must be capable of alteration at any time prior to, or as part of, the final exercise of the section 79 (property alteration) power.

5. I took and take into account all of those matters and the provisions of section 79(2) and 79(4) (a), (b) & (c) and section 75(2) of the Act. My findings are made on the balance of probabilities. It is unusual for such an application to be heard ex parte and I take into account that I have not heard the Husband's account.

6. I find that the parties were married in or about 2001, separated many years later, raised two children and that there exists an amount of real and personal property of the parties at this time (although I cannot ascertain the precise amount) and that each made disparate contributions over many years within the meaning of section 79(4)(a),(b) & (c) of the Act including as home maker and parent.

7. I find that the Wife is recovering from serious injuries following a serious assault and is unlikely to be able to pursue employment in the immediate future.  I find that the Husband is in custody charged with that serious assault on her on or about 9 June 2021.

8. Because this is an interim hearing and ex parte (I have not heard the Husband's account) I did not and do not make any further findings on the balance of probabilities.

9. In the circumstances of those findings I found, and find, that I had and have jurisdiction to make a partial or interim property settlement pursuant to section 79 and 80(1)(h) of the Act.

10. I determined that I would hear an interim property application before a final determination.  I took into account the limited findings described above.  I find that it is in the interests of justice that I hear the application and make an interim property order.

11. The amount that I have ordered be paid at this point is $20,000.  I do not find at this stage of the proceedings that the assets and liabilities of the parties' amount to $750,000 but that is what the Wife asserts.  On the Wife's account of the likely "at least" property pool this is only 2.6% of the parties' assets.  I find that it is likely that the Wife will receive a property settlement of substantially more than that sum and that it is just and equitable that I make an order for that sum.

12. I took into account section 75(2)(o) of the Act “any other circumstance”. Pursuant to that section I also find that, unfortunately, it is likely, but I cannot at this point find for certain, that after a long marriage where 2 children had been raised and property acquired and conserved, that instead of dealing with the Wife's solicitor in a mature way, the Husband visited her home late at night, armed and seriously assaulted her and that she otherwise has available to her a very modest sum and is unlikely to be in paid employment for some time.

13. Those orders also provided that if the husband failed to make the payment ordered then after seven days the Wife was authorised to execute any necessary document to give effect to these orders.  The Husband has liberty to apply to apply on short notice and the further hearing of the Wife's application for partial property settlement has been adjourned to 30 June 2021.

14. I all of those circumstances I find, the orders made for partial property settlement to be in the interests of justice and just and equitable.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       18 June 2021