Bodin & Roy
[2023] FedCFamC1F 945
•27 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bodin & Roy [2023] FedCFamC1F 945
File number(s): DNC 409 of 2021 Judgment of: KARI J Date of judgment: 27 October 2023 Catchwords: FAMILY LAW – EX TEMPORE REASONS – Interim Application – Whether an injunction in relation to the applicant making derogatory comments or publishing derogatory information about the respondent ought be made - Where the parties live in a small community with many mutual associates and friends - Where the respondent has concerns to the damage to his reputation caused by text messages sent by the applicant - Where the court is satisfied that the text messages sent by the applicant have the potential to cause reputational damage to the respondent and that the injunction is just and convenient
FAMILY LAW – EX TEMPORE REASONS – Oral Application - Where there are current proceedings in the Supreme Court - Where the applicant makes an oral application for an injunction restraining the respondent from dealing with the proceeds anticipated to be received from those proceedings - Where the parties agree that a sum of $25,000 should be made available for the respondent to meet his various living expenses - Where the respondent’s primary position is that no injunction should be made or alternatively that the sum of $130,000 should be paid to the respondent in order to repay personal loans - Where the proceeds of the Supreme Court litigation are preserved save for $25,000 payable to the respondent
Legislation: Family Law Act 1975 (Cth) s 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.06
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 27 October 2023 Place: Sydney Counsel for the Applicant: Ms Giacomo Solicitor for the Applicant: Darwin Family Law Pty Ltd Counsel for the Respondent: Ms Jardine Solicitor for the Respondent: ASD Family Legal ORDERS
DNC 409 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BODIN
Applicant
AND: MR ROY
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
27 OCTOBER 2023
THE COURT ORDERS BY CONSENT THAT:
1.That any funds received in respect of any insurance claim for C Street, Suburb D, Region B are directed to be paid into the Darwin Family Law Trust Account established pursuant to order 9(b) herein.
2.That leave be granted for the parties to provide a copy of these orders to F Insurance.
3.That by close of business on Tuesday, 31 October 2023 the Respondent do provide by way of discovery the following:
(a)All documents filed and all orders made in proceedings in the Supreme Court with the Action no. …; and
(b)All documents filed and all orders made in proceedings in the Supreme Court with the Action no. …
(collectively "the Supreme Court litigation").
4.That the Applicant be restrained and an injunction is granted restraining the Applicant from making any derogatory remarks or publishing any derogatory about the Respondent and/or his immediate family on the internet or elsewhere or allow anyone else to do so on her behalf.
5.That until further order:
(a)The Applicant shall continue to pay the sum of $450 per week to G Pty Ltd;
(b)The Respondent shall meet the shortfall in the mortgage repayments for the Westpac Investment Property loan account no. ending #...28.
6.That the Respondent and/or in his capacity as Director of H Pty Ltd and/or G Pty Ltd ("the entities") and/or in his capacity as Trustee of the Roy Family Trust ("the Trust") be restrained and an injunction is granted restraining the Respondent and/or in his capacity as Director of the entities and/or Trustee of the Trust, from dealing with any funds received either by order of the Court or by settlement of the Supreme Court litigation Action No.s … and … SAVE AND EXCEPT as to the amount of $25,000.00.
7.That paragraph 14 of the Amended Application in a Proceeding filed on 18 October 2023 be dismissed.
8.That paragraph 29 of the Amended Response filed on 25 October 2023 be dismissed.
9.That in relation to any proceeds received from either any insurance claim provided for in order 1 and/or the fruits of the Supreme Court litigation referred to in order 3 the Respondent either personally or in his capacity as a director of the entities or Trustee of the Trust do immediately upon receipt of any such funds:
(a)Provide written notice to the Applicant of the intended receipt of such funds;
(b)Together with the Applicant, arrange for those funds to be deposited into a high interest bearing account in the joint names of the parties requiring the signature of both parties for the purposes of any transactions upon the said account;
(c)The parties are restrained and an injunction is granted restraining each of the parties from undertaking any transactions on the account established pursuant to order 9(b) without the joint written consent of both parties or order of the court.
10.That the Applicant be at liberty to serve a copy of these orders upon Mr K and Mr L and/or any entity/trust which they control in order to give effect to order 9(b) herein so as to ensure that the payment of the fruits of the Supreme Court litigation are paid directly into such account created pursuant to order 9(b) herein.
AND IT IS FURTHER ORDERED:
11.That the proceedings be listed for further case management on 5 December 2023 at 9.15am (Sydney time).
12.That no later than 4.00pm on 25 November 2023 each of the parties do file and serve one further Affidavit setting out any further evidence upon which they intend to rely in relation to the extant interlocutory applications before the court.
13.That in the event that either party intends to amend their interlocutory application the same shall be filed and served no later than 4.00pm on 25 November 2023.
14.Liberty to the parties to apply to vary orders 12 and 13 and/or to administratively adjourn the hearing on 5 December 2023 on their joint written request to the chambers of the Honourable Justice Kari.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Bodin & Roy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
These are financial proceedings that are before the court arising from the breakdown of the parties' de facto relationship. The parties are agreed that they were in a de facto relationship and that that relationship commenced in 1998 at a point in time when the parties were living in Queensland. The date of separation of the parties is the subject of dispute. The applicant asserts the date to be on or about 31 October 2019, and the respondent asserts the date to be in or about July of 2017. They are not matters which I am required to determine today or, possibly whatsoever in circumstances where on 19 July 2023, the parties reached agreement and, indeed, a notation was made that to the extent that it was necessary, that leave be granted pursuant to s 44(6) of the Family Law Act 1975 (Cth) (‘the Act’) for the matter to proceed out of time.
The date of separation, however, may have some impact to the overall question of any financial adjustment between the parties, and I am alive to that issue. The issues before the court, however, today are of an interlocutory nature, and I have earlier today made a tranche of orders by consent between the parties. The proceedings, however, come before the court today in relation to an Amended Application in a Proceeding filed by the applicant on 18 October 2023 and an Amended Response to that application filed by the respondent on 25 October 2023.
In broad terms, the issues in dispute between the parties at this interlocutory stage can be summarised as follows:
(1)Issues relating to valuations of various property of the parties;
(2)Issues relating to the discovery of documents in the proceedings;
(3)Issues related to an injunction sought by the applicant in relation to the potential receipt of the proceeds of an insurance claim;
(4)An injunction sought by the respondent to restrain the applicant from making derogatory comments about him to others;
(5)Whether an order made on 17 November 2021 ought be discharged; and
(6)Whether there be a conciliation conference to progress the proceedings.
In relation to those matters, orders have been made earlier today to deal with some aspects by consent. I do not propose to repeat the matters which were the subject of agreement other than to note that those orders have already been made.
The issues, however, remaining in dispute between the parties are as follows:
(1)Firstly, whether an injunction in relation to the applicant making derogatory comments or publishing any derogatory information about the respondent ought be made;
(2)Secondly, an oral application made late in the day today at the applicant's end to deal with the proceeds and/or potential proceeds from Supreme Court litigation, the subject of which I will discuss later in these reasons.
The parties are otherwise agreed that the matter ought come back before the court within short to medium compass for further case management and, in particular, that that date should be with sufficient time for the parties to file further material with the court and for issues pertaining to the Supreme Court litigation to be crystallised.
I will return to the issues in dispute shortly. At this juncture, however, more needs to be understood about the matter generally. Without going into significant detail, it is important to understand that there are various entities which are controlled by the respondent and, to some degree, by the applicant.
Those entities are as follows: H Pty Ltd, of which has shares held as follows: 204 shares held by G Pty Ltd, which is a non-trading entity of which the husband is the sole director and shareholder; 98 shares are held by M Pty Ltd, of which an unrelated third party owns and controls; and a further 98 shares held by N Pty Ltd which again is held by an unrelated party.
So far as H Pty Ltd is concerned, at the present moment, the company has four directors. Those directors are the applicant, the respondent, Mr K and Mr L. In addition to the two entities, namely, H Pty Ltd and G Pty Ltd, there is additionally a family trust, the Roy Family Trust, of which G Pty Ltd is the trustee and the parties, together with their adult children (who are not children of the relationship), are each beneficiaries.
It is significant to understand at this juncture that there is significant dispute and controversy in relation to H Pty Ltd and its ownership, its control and the value of its assets. That controversy is not one about which I propose to go into any significant detail in these reasons, as it is not necessary to do so, other than to understand for present purposes that there is ongoing litigation in the Supreme Court, and that litigation involves the respondent, Mr K, Mr L and the entities that they each control to hold their shareholding in H Pty Ltd. That litigation, the court is told, has a trial date in late 2023.
It is also important to understand that the assets of H Pty Ltd are properties located over several certificates of title on C Street. Those properties include the home in which the applicant resides pursuant to orders made by a registrar on 17 November 2021, together with the trading businesses of H Pty Ltd.
Little is known in this court about the litigation in the Supreme Court. That is in circumstances where the respondent today acknowledges that the applicant, as a director of H Pty Ltd and her capacity as director and/or in her capacity as secretary of that entity, would and should be entitled to that information. Orders, however, have been made by consent earlier today for disclosure in relation to those court proceedings by the respondent in circumstances where the respondent acknowledges through his counsel today that discovery provided for by r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) would mandate that that information is discoverable by the respondent to the applicant.
Whatever the case may be, however, distilled into its simplest form, the dispute between these parties, which is overshadowed by the Supreme Court litigation, appears to be as follows:
(1)The applicant wishes to retain in any overall settlement of the financial dispute between the parties, at least, the home located at C Street;
(2)The applicant appears to wish to continue her current employment by H Pty Ltd;
(3)The respondent, however, wishes to assume sole control of H Pty Ltd and implicitly in doing so, he wishes to have the applicant removed as a director of that company.
(4)Additionally and inferentially, it appears that the respondent does not wish to have the applicant employed in that business.
The litigation in the Supreme Court overshadows these proceedings. It is agreed between the parties - me having raised with them today in a direct way - that the Supreme Court litigation and any outcome of that litigation will have a resulting impact upon the property available for division between the parties in these proceedings. Thus, in circumstances where the Supreme Court litigation is ongoing, until those matters are finalised in some way, this court is hamstrung in progressing the litigation in this court.
Be that as it may, over the luncheon adjournment, the applicant's counsel was able to take further instructions from the applicant. The applicant advised her counsel that she had been advised by one of the other directors of H Pty Ltd, namely Mr K or Mr L, or an agent on their behalf, that the Supreme Court litigation appeared to be resolved and that terms of settlement were being finalised.
In addition, the applicant advised her counsel that mediation in relation to that litigation commenced yesterday, 26 October 2023, and appears to be continuing this day, being 27 October 2023. It is not lost on me that on 25 October 2023, the respondent filed material out of hours - after close of business - namely, his Response and an affidavit in which he deposed in some way to the Supreme Court litigation. However, he failed to inform this court about the mediation that was scheduled to commence the following day. That he did so is confounding. However, I equally note that both of these parties appear to be selective in the information that they are presently choosing to put before this court.
On any view, both of the parties appear not to come before the court with clean hands. I make that comment and give at least two examples in that regard. The first example I give relates to the application that has been made by the respondent in relation to the derogatory comments that have been made by the applicant, in relation to the respondent, to associates of both parties.
So far as the respondent is concerned, I have already given one example as to how he has not come before the court with clean hands, and that relates to the mediation about which he did not make a mention in his documents filed hours prior to the mediation taking place.
Whatever the case may be, the acrimony between these parties appears to be running very high and time only appears to be entrenching that acrimony between them. It is clear to me that this matter needs to be progressed, and progressed as quickly as possible, if nothing else, to dispel the level of acrimony that exists between the parties and to bring a finalisation to this litigation.
I now turn to the applications that are extant at this juncture. Before doing so, however, I pause to mention that, during the course of the hearing today - which has run far longer than it had been listed to take place - I indicated to the respondent that I was not inclined to hear and determine the application for the discharge of the injunctions made on 17 November 2021 in circumstances where I considered that both parties needed to put further information before the court to enable me to properly consider that application.
Turning to those applications for injunctions that are now present before the court, the first application I propose to deal with is that contained in paragraph 29 of the Amended Response to an Application in a Proceeding filed by the respondent on 25 October 2023. By that application, the respondent seeks an order in the following terms:
29. That the Applicant be restrained by injunction from making any derogatory remarks or publishing any derogatory information about the Respondent and his immediate family on the internet or elsewhere, or allowing any other person to do so.
That application is resisted at the applicant's end. The applicant, however, is prepared, on a without admission basis, to enter into an injunction but that it be on the following terms:
That without admission, the applicant be restrained from making any defamatory comments about the respondent, whether written or verbal, to employees, customers or service providers of [H Pty Ltd] or [G Pty Ltd] or any known business associate of the respondent.
In his affidavit filed contemporaneously with the Amended Response on 25 October 2023, the respondent sets out the basis upon which he has sought the injunction. The affidavit of the respondent sets out under the heading of “Further ongoing harassment from [Ms Bodin] and ongoing Family Violence”, his evidence pertaining to communications apparently sent by the applicant to associates of both of the parties, namely a Mr P and his partner, Ms Q.
That affidavit sets out that the respondent has been advised by Mr P and Ms Q that they have received numerous text messages - well over 200 - over a three-day period, from the applicant. Some of those text messages are annexed to the respondent's affidavit. I describe those text messages as crude and lewd. In them, the applicant makes allegations - which the respondent denies - among other things, that the respondent is a paedophile, including allegations that he acted inappropriately and in a sexual manner to the applicant's now adult daughter.
An extract of the text messages are contained as an annexure to the affidavit of the respondent.[1] Those text messages are as follows:
[1] Annexure “MR-06” to the Respondent’s Affidavit filed 25 October 2023, pages 93 to 104.
7.30 pm Hope you’re good with that.
7.40 pm When he goes to jail your going to be so sorry you took his side
8.17 pm Hope you’re happy with that
9.00 pm Your cock to suck not mine enjoy
Paedophile [Mr Roy’s] a paedophile. Hope you’re good with that
9.02 pm Fuck u all !!!
9.03 pm Enjoy that paedo
9.14 pmWhen your daughter wakes up in the morning at 14 years old with [Mr Roy] laying naked next to her cupping her breast you can tell [Mr Roy] he is going to have bad moments in his life. Your mate !!
Your mate !!!!
9.15 pm Your mate !!!!!
9.16 pm Your mate !!!!!
Your mate !!!!!
Your mate !!!!!
Your mate !!!!!
Your mate !!!!!
9.17 pm Your mate !!!!!
Your mate !!!!!
Your mate !!!!!
Your mate !!!!!
Your mate !!!!!
Your mate !!!!!
Your mate !!!!!
10.10 pmWhen your daughter wakes up in the morning at 14 years old with [Mr Roy] laying naked next to her cupping her breast you can tell [Mr Roy] he is going to have bad moments in his life. Your mate !!
10.11 pmHe was supposed to protect her yet he molested her. Fucken piece of shit. Pick your side [Mr P]!!!
Your mate
10.15 pm Hope u don’t dob us in that would make you a triple Cunt
10.22 pm Hey if you let [Mr Roy] know what a paedofile he is that’s known
10.24 pm Night your mate x
10.54 pm If you warn that paedophile your karma
11.25 pm Hope u don’t dob [Ms R]
Tuesday, 26 September 2023
7.48 amPlease don’t say anything to [Mr Roy]. [Ms R] has been threw Enough. I just u to know who your dealing with
(As per the original)
It is not clear to me why the applicant resists the injunction that has been sought. From the respondent's perspective, he has very grave concerns as to the damage to his reputation that might be occasioned by the communications that have been sent by the applicant to at least Mr P and Ms Q, although it is not known by him at this juncture whether there has been broader communication to others.
In relation to Mr P and Ms Q, the respondent's particular concern is that he had approached Mr P to become a director of H Pty Ltd, and in light of these text messages, Mr P has declined to take up that offer, which he was otherwise previously favourably disposed to taking up.
On any view, as I said earlier, the text messages which have been sent by the applicant to at least Mr P and Ms Q are derogatory and inflammatory and have the potential to cause significant reputational damage to the respondent. I am satisfied that I have power to make injunctions pursuant to s 114 of the Act, and in particular, s 114(2)(a) and (3). I am satisfied that, in all of the circumstances, the injunction that I have been asked to make by the respondent is one that it is just and convenient to make.
I am told by both of the parties, in various documents that they have filed, that the community within which they live is small and that they have many mutual associates and friends. I do not consider it appropriate that the applicant act in a way that causes the potential to injure, not only the respondent's reputation but his capacity and ability to earn an income and to carry out whatever business ventures he chooses to conduct in the future.
I accordingly propose to make an injunction in similar terms to the terms set out at paragraph 29 of the Amended Response filed by the respondent on 25 October 2023, namely that the applicant be restrained and an injunction is granted restraining the applicant from making any derogatory remarks or publishing any derogatory information about the respondent and his and/or his immediate family on the internet or elsewhere, or allowing any other person to do so on her behalf.
Turning to the second extant issue for today's purposes, and that arises from, as I said, an oral application made by the applicant today. The oral application is that the court grant an injunction restraining the use of any funds received by the respondent and/or any entity which he has control, namely H Pty Ltd, G Pty Ltd or the Roy Family Trust, from dealing with the fruits of the Supreme Court litigation and, in particular, any funds that the respondent or those entities may receive to settle that litigation.
The parties notionally agree that if an injunction is to be made preserving those funds, then it would be appropriate to carve out an amount of $25,000 to be paid to the respondent to meet various of his living expenses. The parties also agree that it is appropriate to make a further order in relation to the C Street property and the payment of a mortgage registered over the same. The consent agreement in relation to the payment of that mortgage is on the basis that the wife continue to pay an amount of $450 a week to G Pty Ltd to partially satisfy the mortgage repayments for the loan registered over that property. The husband is to make up the balance of the shortfall of those repayments which is said to be, at this juncture, somewhere of around $200 - possibly a little more - per week. Although that amount may well vary and is subject to interest rate changes. As I say, the parties are agreed that orders are to be made in that regard.
The parties also agree that if an injunction is made in relation to the fruits of the Supreme Court litigation in the respondent's control, then an amount of $25,000 should be carved out and payable to the respondent. The respondent's primary position in relation to that oral application is that no injunction should be made. Alternatively, he says that if such an injunction is made, then an additional amount of $130,000 be carved out and payable to the respondent in order that he repay personal loans he has obtained from friends.
So far as the oral application is concerned, I am minded to make an injunction preserving the fruits of a Supreme Court litigation so far as they make their way into the respondent's hands or the hands of any entity that he controls with the carve out that the parties agree in the amount of $25,000.
I consider that it is just and convenient to make an order in relation to those sums, as I say, to preserve the property between the parties in this litigation. I make it clear that in making that injunction, I do not consider that the question of the release of any further funds from the fruits of the Supreme Court litigation is foreclosed. Rather, my position - and the reason that I am making the orders that I am about to make in that regard - is to preserve the funds pending both of the parties putting further information before the court in order that that matter can be fully ventilated, considered by the court and orders made in the absence of any further agreement between parties.
For all of those reasons, I make additional orders in relation to a second live issue before the court.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 13 November 2023
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