Barnes and Barnes and Anor - [2016] FamCA 453

FAMILY COURT OF AUSTRALIA

BARNES & BARNES AND ANOR

[2016] FamCA 453

FAMILY LAW – INJUNCTIONS – Application by the wife for an ex parte injunction restraining the husband from destroying documents – where the wife alleges that the husband colluded with his associates to influence the single expert property valuer – where the property the subject of final orders sold for almost double than the value ascribed by the single expert – where the wife alleges that the husband deliberately concealed the sale price of the property – balance of convenience favours the making of the injunction – interim orders made as sought by the wife

Family Law Act 1975 (Cth)

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

APPLICANT:

Ms Barnes

FIRST RESPONDENT:

Mr Barnes

SECOND RESPONDENT:

Mr Harris

FILE NUMBER:

MLC

4997

2016

DATE DELIVERED:

6 June 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

6 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Nedovic

SOLICITOR FOR THE APPLICANT:

Nedovic Lawyers

THE FIRST RESPONDENT:

No appearance

THE SECOND RESPONDENT:

No appearance

Orders

That the applicant have leave to proceed ex-parte with her Application in a Case filed 1 June 2106.
That the husband be restrained from:
(a) Destroying; or
(b) Doing any act which restricts the availability of; or
(c)Directing any person to do any act which restricts the availability of; or communicating with or causing any other person to communicate with Mr Harris or any employee or agent of Mr Harris in relation to the availability of:
any document which:
(d)Evidences any request by him or his agents to produce any statement as to the value of the property situate at and known as B Street, Suburb C in the State of Victoria;
(e)Constitutes or evidences any communication between any of the following persons in relation to the value of the property situate at and known as B Street, Suburb C in the State of Victoria:
(i)The husband;
(ii)Mr Harris;
(iii)Mr D of E Pty Ltd.
That the applicant this day serve the following documents upon the Respondents:
(a)       A sealed copy of this Order;
(b)       The application filed on 1 June 2016;
(c)       The affidavit of the applicant sworn on 1 June 2016; and
(d)       The Undertaking of the applicant dated 6 June 2016.
That this matter be listed for hearing before me at 10.30am on 9 June 2016.

IT IS DIRECTED

That the Reasons for Judgment be transcribed and place on the Court file.
That all questions of costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barnes & Barnes and Anor 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 4997 of 2016

Ms Barnes

Applicant

And

Mr Barnes

First Respondent

And

Mr Harris

Second Respondent

REASONS…

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 Barnes and Barnes and Anor

Details

AGLC: Barnes and Barnes and Anor [2016] FamCA 453
Case: [2016] FamCA 453
Decision Date: 6 June 2016

CaseChat Overview and Summary

In the matter of *Barnes and Barnes and Anor*, Johns J of the Supreme Court of Victoria considered an application by the applicant for leave to proceed *ex parte* and for an order restraining the husband from dealing with certain documents relating to the valuation of a property. The dispute concerned the potential destruction or concealment of evidence relevant to the valuation of property located at B Street, Suburb C, Victoria.

The primary legal issues before the Court were whether the applicant should be granted leave to proceed *ex parte*, and whether injunctive relief should be granted to prevent the husband from destroying, restricting the availability of, or communicating about documents that evidenced requests for the property's valuation or communications between the husband, Mr Harris, and Mr D of E Pty Ltd concerning that valuation.

Johns J granted the applicant leave to proceed *ex parte*, indicating that the circumstances warranted proceeding without the husband's immediate participation. The Court then made orders restraining the husband from destroying or otherwise restricting the availability of documents related to the valuation of the B Street property. This included any communications concerning the property's value between the husband, Mr Harris, and Mr D of E Pty Ltd, or any requests made to produce statements regarding its value. The applicant was ordered to serve specific documents, including the Court's order and her application, upon the respondents. The matter was listed for a further hearing, and all questions of costs were reserved.

Orders

Orders of the court

That the applicant have leave to proceed ex-parte with her Application in a Case filed 1 June 2106.

That the husband be restrained from:

(a) Destroying; or

(b) Doing any act which restricts the availability of; or

(c) Directing any person to do any act which restricts the availability of; or communicating with or causing any other person to communicate with Mr Harris or any employee or agent of Mr Harris in relation to the availability of:

any document which:

(d) Evidences any request by him or his agents to produce any statement as to the value of the property situate at and known as B Street, Suburb C in the State of Victoria;

(e) Constitutes or evidences any communication between any of the following persons in relation to the value of the property situate at and known as B Street, Suburb C in the State of Victoria:

(i) The husband;

(ii) Mr Harris;

(iii) Mr D of E Pty Ltd.

That the applicant this day serve the following documents upon the Respondents:

(a) A sealed copy of this Order;

(b) The application filed on 1 June 2016;

(d) The Undertaking of the applicant dated 6 June 2016.

That this matter be listed for hearing before me at 10.30am on 9 June 2016.

IT IS DIRECTED

That the Reasons for Judgment be transcribed and place on the Court file.

That all questions of costs 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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