Ball and Ball and Ors

[2011] FamCA 1001

FAMILY COURT OF AUSTRALIA

BALL & BALL AND ORS [2011] FamCA 1001

FAMILY LAW – Interlocutory injunction

Family Law Act 1975 (Cth)

APPLICANT: Ms Ball

1^st RESPONDENT: Mr Ball

2^nd RESPONDENT: Mr S Ball

3^rd RESPONDENT: Mr L Ball

4^th RESPONDENT: Mr P Ball

5^th RESPONDENT: Ms B

FILE NUMBER: MLC 10383 of 2011

DATE DELIVERED: 29 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mellas

SOLICITOR FOR THE APPLICANT: Kennedy Partners

THE 1^ST, 2^ND, 3^RD, 4^TH AND 5^TH

RESPONDENTS:

No appearance

SOLICITOR FOR THE

1^ST, 2^ND, 3^RD, 4^TH AND 5^TH

RESPONDENTS:

Einsiedels Legal Practitioners

Orders

1. That BY CONSENT of and against the respondents save the 4^th and 5^th respondents and orders are made against those respondents in the terms of the minutes attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That all outstanding interim applications are dismissed.

4. That all respondents file and serve any material upon which they intend to rely by 4.00pm on 20 January 2012.

5. That the parties attend a conciliation conference with a registrar of this Court to make a bona fide endeavour to resolve all outstanding issues between them, such conference to be appointed by the registrar on a date to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym Ball & Ball 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 MELBOURNE

FILE NUMBER:  MLC 10383 of 2011

Ms Ball

Applicant

And

Mr Ball

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by the wife on 18 November 2011. She names her husband and four other respondents in the proceedings. The substantive application seeks a property settlement but also a specific orders under section 106B of the Family Law Act to set aside a transfer between the husband and the second, third, fourth and fifth respondents, which is said to have been executed on 2 October 2010 by way of a transfer of land which has been registered by the Land Titles Office in Victoria.  The evidence is that the wife is 76 years of age, the husband is 93 years of age, and the respondents are the children of the husband but not of the wife. 

2. The evidence of the wife is that she became aware subsequent to the transaction that the property was transferred to the children.  The application was issued a year later and three out of the five respondents to these proceedings consent to injunctive relief precluding the further disposal of that property pending the ultimate determination of whether it is to be put back into the name of the husband again.  The other two respondents who have not signed the relevant letter appear to either have been aware of the proceedings or have knowledge of it by virtue of service of documents upon them. 

3. Section 114 of the Family Law Act provides that a court has the power to make an injunction precluding the disposal of property.  And part 8AA of the Act permits the court to make injunctions against third parties in the event that there is a prospect that an asset which really belongs to the parties may be further put beyond the reach of the court.  I am not at all clear from this material whether this is a case where the transfer of land in October 2010 was a sham or whether, in fact, there was a legitimate basis for it which would give rise to Part VIIIAA. 

4. The transfer of land refers to the consideration as being natural love and affection, which would tend to suggest that the husband was doing some estate planning without knowledge of the wife that may not be appropriate. But, no doubt, the court needs to find that out in due course. Section 114, as does Part VIIIAA, refer to the fact that the court should only make an injunction if it is proper to do so. It seems to me this is one of those cases where not only have I consents for three out of the five respondents, but the other two respondents are not prejudiced by the orders being made.

5. In those circumstances, I will make an order in terms of paragraph 1 of the minute to which the husband and the other two respondents have consented – other three respondents have consented.  And I will make the orders as orders of the Court in respect of respondents 4 and 5, and any other orders that are otherwise needed. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 November 2011.

Associate: 

Date:  6 January 2012