Battersby and Battersby

[2008] FamCA 1132

FAMILY COURT OF AUSTRALIA

BATTERSBY & BATTERSBY [2008] FamCA 1132

FAMILY LAW – PROPERTY – Transfer to wife’s superannuation fund – s114 injunction

Family Law Act 1975 (Cth)

APPLICANT: Ms Battersby

RESPONDENT: Mr Battersby

FILE NUMBER: MLF 3726 of 2005

DATE DELIVERED: 21 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 November 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms S. Snyder

Orders

1. That the application in a case filed 21 November 2008 be adjourned to 9.00am on 15 December 2008 before me.

2. That the wife have leave to proceed with the urgent application this day in the absence of notice to the husband.

3. That a copy of my reasons this day be placed on the file and be made available to the parties.

4. That until further order, the husband be restrained from disbursing in any way, the cheque received by him being the funds due to J Pty Ltd in the sum of $231,687 save as provided by paragraph 5 of these orders.

5. That the husband forthwith pay to the solicitor for the wife the sum of $231,687 to be held by the solicitor for the wife on trust for J Pty Ltd until further order.

6. That the husband forthwith be served with a copy of this order, the application in a case filed 21 November 2008 and the wife’s affidavit filed 21 November 2008, such service to be arranged by delivery to Privitelli Solicitors.

7. That the wife’s costs of this application be reserved to the adjourned date.

8. That pending the service of the said order, the solicitor for the wife forthwith notify orally, the solicitor for the husband of the making of these orders including the details of the orders of service.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3726 of 2005

MS BATTERSBY

Applicant

And

MR BATTERSBY

Respondent

REASONS FOR JUDGMENT

1. This is an application that has come in on an urgency basis into the duty list on a Friday afternoon.  It has been granted by a registrar, an ex parte hearing, hence it comes before me without service of any notice on the husband.  I am a little troubled about that, having regard to the fact that the evidence, to which I will refer in a moment, includes contact between the wife and the husband's solicitor and also the wife's solicitor and the husband's solicitor.  But having regard to the nature of the application and the evidence, I am not sure that this is a case in which I should be too troubled, particularly having regard to the fact that on any view it seems to me that the solicitor for the husband acknowledges that the money about which I am asked to make orders actually belongs to the wife.

2. In this case, orders of a final nature were made in property proceedings on 22 June 2006.  The orders have quite a comprehensive set of paragraphs in relation to the wife's entitlement under a splitting order arising out of a superannuation fund.  Paragraph 13 of the order says that the wife is entitled to all of the shareholding in J Pty Ltd held in C Company or any related entity.

3. Notwithstanding those orders were made two years ago, the wife's evidence in an affidavit before me is that she has not sought to transfer those shares into a superannuation fund of her choice because she is still in the process of establishing a fund.  She says that by accident she became aware of some proceedings between the Tax Office and J Pty Ltd in the Federal Court, as a consequence of which she searched the file.  She said on 20 November, which is yesterday, she attended the Federal Court to find not her husband present but his solicitor who was the practitioner on the court records acting for the husband in the family law proceedings that concluded in 2006.

4. She said that she was "advised" that the shares held by J in C Company have been sold "very recently" and the cheque had been received by J for $231,687 in payment of those shares.  That evidence seems to be supported by a letter dated 21 November 2008 from the husband's solicitors to the wife's solicitors, wherein the solicitor for the husband says:

   We now seek your advice regarding the transfer or distribution of the funds in [J] Pty Ltd recounted to the wife's nominated superannuation account.  The shares that were sold were in the name of [J] Pty Ltd and were held in trust for the [JG] Superannuation Fund.

5. That is rather odd, having regard to the order that I have earlier mentioned which makes clear that the wife was to open up a superannuation fund and put in the shares held by J Pty Ltd in the C Company account.

6. I am puzzled as to what exactly has happened here, but what is apparent is that the husband has control of $231,687.  The letter to which I have referred from the solicitor for the husband indicates that that money has been paid into an account of "a company" by which one could infer that it is J Pty Ltd but it is not at all clear.  On that basis I think I am entitled to presume that the husband is at least in control of those funds and on any view they do not belong to him.

7. The wife's position is that she has some concerns about just what the husband has done and, more importantly, what he might do with those funds.  In those circumstances it is appropriate to treat the matter as urgent and one in which, having regard to the time of the day, I see no reason why the husband is prejudiced by not having notice of the hearing.  This is not a case in which one would normally require an undertaking as to damages, having regard to the fact that on any view it seems to be the wife's entitlement, albeit her superannuation funds.

8. The power to make an order of this nature lies in s 114 of the Family Law Act 1975 (Cth), and the jurisdictional base comes from s 4 in which the court is empowered to make orders arising out of both present and past proceedings. There is therefore no impediment to the court making the orders today with an enlivened power under s 114 notwithstanding the fact that the s 79 jurisdiction was exhausted in June 2006 with an enlivened power under s 114. The only question is whether or not the jurisdiction should be exercised, having regard to the fact that the basis for such an order is that it must be proper to make the order.

9. It seems to me in this case, having regard to the short period of time that I am being asked to cover, and having regard to the acknowledgment by the solicitor for the husband that this is the wife's money - directly or indirectly - it is proper to make such an injunction.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 28 November 2008