Bondelmonte and Bondelmonte (No 3)

[2016] FamCA 553

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE (NO. 3) [2016 ] FamCA 553

FAMILY LAW – PROPERTY – Interim – Where the wife seeks orders for access to documents filed in the Federal Court of Australia in proceedings involving the husband – Where the husband opposes the wife’s application – Where the wife asserts that the husband has failed to make full and frank disclosure of his financial position and that the documents sought relate to the husband’s financial position – Where the matters raised in the Federal Court proceedings involving the husband lead the wife to bring an application under s 79A - Where the husband seeks particulars of the wife’s claim under s 79A(1)(a) - Where the husband asserts that the wife’s application is a fishing expedition – Where the husband asserts that the wife has misused information relating to him in these proceedings - Where orders are made for the wife’s lawyers to inspect the documents provided by the Federal Court of Australia.

Family Law Act 1975 (Cth)

Harman v Secretary of State for the Home Department [1983] 1 AC 280

APPLICANT: Ms Bondelmonte

RESPONDENT: Mr Bondelmonte

FILE NUMBER: SYC 4839 of 2011

DATE DELIVERED: 4 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 4 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

SOLICITOR FOR THE RESPONDENT: Karras Partners

Orders

1. Subject to the conditions contained in these orders, the Registrar of the Sydney Registry of the Family Court of Australia request the Registrar of the Sydney Registry of the Federal Court of Australia to make available to the Family Court of Australia the files, or copy of the files, for proceedings numbered NSD … of 2015 and SAD … of 2015.

2. The request by the Registrar of this Court to the Registrar of the Federal Court should ask the Registrar of the Federal Court to indicate if there are any logistical difficulties in complying with the request, arising from the volume of documents or the need to photocopy documents and if there are logistical difficulties, the Registrar of this court is to arrange for the matter to be relisted before me.

3. In the first instance, if the Registrar of the Federal Court requires the costs of any photocopying to be paid prior to the photocopying taking place, the wife is to be responsible for the costs of that photocopying in the first instance but shall be at liberty to make an application in relation to the husband paying all or part of those costs.

4. Pending any further order, leave be granted to the lawyers for the wife to inspect the files after the expiration of 28 days from the date of service of these orders upon all parties to those proceedings apart from the husband.

5. As soon as is practicable, the wife will serve a sealed copy of these orders and Reasons upon all parties to the proceedings referred to in order 1 apart from the husband.

6. Liberty is granted to any of the parties to the Federal Court proceedings apart from the husband to apply within 28 days of service of these orders if they wish to argue any objection to the wife’s lawyers inspecting the material on the Federal Court file.

7. Pending further order, inspection of any documents produced as a result of the request in order 1, be initially undertaken by the wife’s lawyers without the wife being present. The wife’s lawyers may convey to the wife information that they obtain as a result of the inspection of the documents but the wife is not, pending further order, to discuss that information with anybody other than the lawyers who have inspected the documents.

8. On 4 May 2016 the wife made an application for costs in respect of the interim proceedings which were determined on 8 March 2016. I note that on 18 May 2016 the wife filed written costs submissions and an affidavit of Ms H sworn 18 May 2016. The wife has filed a further affidavit by Ms W on 16 June 2016.

9. The husband’s lawyers are to file and serve any written submissions in reply to the costs application within 21 days.

10. Any further oral argument in relation to costs will take place on 4 August 2016 at 9.15am.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Bondelmonte & Bondelmonte 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 SYDNEY

FILE NUMBER: SYC 4839  of 2011

Ms Bondelmonte

Applicant

And

Mr Bondelmonte

Respondent

REASONS FOR JUDGMENT

1. The wife filed a Further Amended Initiating Application on 2 March 2016 seeking, amongst other things, an interim order 19 which was slightly amended in a Proposed Minute of Order as follows:

   That the Family Court of Australia request the Registrar of the Federal Court of Australia to make available to the Family Court of Australia the files, or copy there of (sic), for proceedings number NSD … of 2015 and SAD … of 2015 and that leave be granted for the Applicant’s solicitor to inspect the files.

2. The wife’s lawyer filed an affidavit on 2 March 2016 in support of this application. In addition, the wife now relies upon:

   2.1.Paragraphs 126 to 141 of the Reasons of the Full Court (“the Reasons of the Full Court”) delivered 8 April 2016; and

   2.2.Affidavit of the wife’s lawyer sworn 4 May 2016. In relation to what is in that document, I repeat the view expressed during submissions that the undertakings proffered by the lawyers for the wife were not of great relevance given the operation of the obligation pursuant to Harman v Secretary of State for the Home Department [1983] 1 AC 280 ( the Harman obligation) on the wife and her lawyers.

3. On 4 March 2016 the lawyer for the husband wrote to the lawyers for the wife requesting particulars, inter alia, of the wife’s claim under s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) (Exhibit 4).

4. Questions 7 and 8 contained in that letter ask the wife to give particulars of her assertions as to the husband’s suppression of evidence and as to his giving of false evidence.

5. The second last paragraph of the letter of 4 March 2016 states:

   Please be advised that our client will not be able to formulate a Response to your client’s Application until such time as the particulars have been provided and considered by us. At this stage the respondent reserves his position as to the applicant pleading her case with specificity.

6. As yet, the wife has not responded to the husband’s request for particulars.

7. In the Reasons for Judgment delivered 8 March 2016, I considered the wife’s s 79A application at [72] – [75]:

   72.The mother has filed an application for final orders pursuant to s 79A(1)(a) of the Act and subsequently for an order pursuant to s 79 of the Act.

   73.In connection with that application, the mother has made an application that this court request the Registrar [of] the Federal Court of Australia to make available to this court the files or copy of the files in certain proceedings in the Federal Court on the basis that initially only the applicant’s lawyer would inspect the files.

   74.As a matter of procedural fairness, the father should have an opportunity to respond to that application given allegations the father has previously made about the mother’s use of confidential commercial information.

   75.I will adjourn the matter for a further consideration at 10am on 4 May 2016. The father shall have 14 days to file a response and any evidence upon which he seeks to rely in support of that response.

8. On 8 March 2016 an order was made in the following terms:

   11. Relevant to the mother’s application for property settlement, the mother’s application for this court to request the Registrar of the Federal Court files involving proceedings involving the father in the Federal Court be adjourned to 4 May 2016 at 10am and within 14 days the father file and serve any response in relation to that part of the mother’s application and any evidence upon which the father seeks to rely in respect of that application.

9. On 10 March 2016 the husband filed an Amended Response to Initiating Application. Question 5(a) of that document asks the husband to “State the paragraph numbers of the interim or procedural orders sought in the Initiating Application (at Part A) with which you agree”. The husband does not nominate any paragraph with which he agreed. By implication, the husband did not agree with the application for interim order 19 as sought by the wife in her Further Amended Initiating Application filed 2 March 2016 and the husband also sought that the wife’s Further Amended Initiating Application filed on 2 March 2016 be dismissed.

10. However, the husband did not comply in time with the part of order 11 made 8 March 2016 which required the husband to file and serve within 14 days any evidence upon which he sought to rely in respect of the wife’s application.

11. The husband did file an affidavit as to relocation on 8 April 2016 (which was outside the 14 days provided by order 11 of 8 March 2016) and relies, without objection, upon [1] to [6] and [23] to [25] of that affidavit in response to order 19 of the wife’s Further Amended  Initiating Application filed 2 March 2016.

THE WIFE’S EVIDENCE

1. The affidavit filed by the wife’s lawyer on 2 March 2016 sets out the grounds on which the wife relies to commence proceedings against the husband pursuant to s 79A(1)(a) namely:

   12.1.That the husband failed to make a full and frank disclosure of his income and assets;

   12.2.That the husband failed to make a full and frank disclosure of his business interests and/or the value thereof; and

   12.3.In all of the circumstances the Consent Orders made on 25 June 2014 (“the 2014 Consent Orders”) were improperly procured.

2. The wife says that it was on the basis of the husband’s disclosures as to his financial affairs and her own enquiries as to his disclosures that she entered into the 2014 Consent Orders which included entering into a Financial Agreement (Spouse Maintenance) pursuant to section 90D and 90MH of the Act.

3. The wife submits that in the Financial Statements filed by the husband for the purpose of obtaining property settlement orders, the husband did not disclose the assets he now appears to have which have apparently been referred to in the current Federal Court proceedings.

4. In the course of the proceedings which culminated in the making of the 2014 Consent Orders, the husband has filed two Financial Statements. In the Financial Statement filed 14 November 2012 the husband deposed to a weekly income of $3,367 derived from income generated from his business/partner/trusts as follows:

   15.1.The XYB Family Trust - $59;

   15.2.The K Trust - $2,134; and

   15.3.The CC Investment Trust - $1,174.

5. In the same Financial Statement, the husband deposed to total property valued at $100,562 including total investments and interests in business pursuant to Attachment A being nil.

6. In the Financial Statement filed 28 August 2013 the husband deposed to a weekly income of $3,365 derived from income generated entirely from the K Trust. The husband also deposed to total property valued at $499,484 including total investments and interests in business pursuant to Attachment A being nil and an asserted loan to the wife valued at $415,403.

7. In both of his Financial Statements, the husband asserted that his interest in Q Finances Pty Limited was nil. Since the incorporation of Q Finances Pty Limited on 16 November 2009 the husband has been the sole director and sole shareholder of this entity.

8. On 29 January 2015 orders were made in the Federal Court in proceedings No NSD …/2015 being proceedings brought by the Deputy Commissioner of Taxation against the husband as the first respondent and his mother as the second respondent as well as various other companies and trusts in which the husband and/or his mother had an interest as the third to tenth respondents. An ex parte freezing order was made preventing the respondents from removing from Australia or disposing of $45,230,237.40 out of monies or other consideration paid as payment of the Completion Amount under the Asset Sale Agreement dated 23 December 2014, except with the consent of the Commissioner.

9. On 12 February 2015 further orders were made in the Federal Court proceedings permitting $24,000,000 received from Company M Goods Australia Pty Limited as trustee for the Company M Brand Unit Trust to be paid into the trust account of a law firm. A further order permitted $21,230,237.40 to be deposited by Company M Goods Australia into a specified bank account.

10. In separate Federal Court proceedings No SAD …/2015 commenced by ABC Finances Pty Limited (in liquidation) an interim order was made on 15 January 2015 requiring the husband to deliver his passport to the Registry of the Federal Court. On 30 January 2015 the Federal Court noted the husband undertook not to remove from Australia or in any way dispose of, deal with or diminish the value of any assets in Australia up to the unencumbered value of $15,000,000 until 11 February 2015 (which was extended until 13 February). On 13 February 2015 a freezing order similar to the undertaking was made, pending further order. 

11. On 21 May 2015 the husband’s passport was made available to him pursuant to orders made in the Federal Court. The wife says that since this date, he has travelled internationally subject to various undertakings and payments being made as security for his return. For example, on 23 June 2015 orders were made that $8,178,909.64 be placed in a controlled monies account by O Goods Australia Pty Limited (formerly Company M Goods Australia Pty Limited) being the sixth respondent of the Federal Court proceedings, to secure the return of the husband. On 16 December 2015 orders were made that a further amount of $3,268,509 be deposited into the Australian Government Solicitor’s account (the Commissioner’s solicitors) by Q Finances Pty Limited to secure the husband’s personal tax debt subject to litigation in the Federal Court proceedings (NSD …/2015). On the same date, an order was made that the $7,122,377 held in the trust account of the Australian Government Solicitors was to be held to secure the husband’s mother’s personal tax debts also subject to the Federal Court proceedings (NSD …/2015).

12. As the Full Court noted at [139]:

    It is the matters raised by these proceedings that lead the [wife] to bring her application under s 79A. It can be seen that the [husband] is involved in proceedings concerning large sums of money and involving assertions that he has incurred and owes significant tax.

13. In oral submissions, the husband’s solicitor described the wife’s application for access to what information is in the Federal Court files as a “fishing expedition” to see if she has a case at all. Further, the husband’s solicitor submitted that the wife needs to answer the request for particulars and articulate the basis upon which she says there has been a suppression of evidence or giving of false evidence before she can proceed with her application for access to the documents she seeks. 

THE HUSBAND’S CONCERNS ABOUT THE USE THE WIFE MAY MAKE OF THE INFORMATION SOUGHT

1. The husband, in his affidavit filed 8 April 2016 maintains that the wife, on numerous occasions, has disseminated and misused information relating to the husband that she has been provided with during these proceedings. These untested allegations include:

   25.1.Information in relation to the husband’s travel history (as particularised in paragraphs 11 to 14 of an affidavit filed by the husband in these proceedings on 13 February 2015) being provided to one of the liquidators of a company, with which the husband was formerly associated, for use against him in proceedings in the Federal Court of Australia;

   25.2.Copies of correspondence between the husband’s lawyers and the wife’s lawyers (as particularised in paragraphs 16 to 17 of an affidavit filed by the husband in these proceedings on 13 February 2015) being provided to the above liquidator and which were attached to an affidavit sworn by that liquidator in those Federal Court proceedings;

   25.3.Details in relation to the husband’s passport (which he incorporated in a further affidavit sworn by him in respect of the Federal Court proceedings outlined in the husband’s affidavit filed 13 February 2015) which he says the wife divulged to the same liquidator; 

   25.4.Details in relation to the husband’s travel plans (referred to in paragraph 21 of the husband’s affidavit filed 13 February 2015) which were reported by a journalist in a major newspaper in early 2015; and

   25.5.A copy of the husband’s email to the wife sent on 30 January 2016, forwarded to a defendant in proceedings in the Supreme Court of New South Wales so that such document then became an annexure to an affidavit sworn by that defendant’s solicitor and filed with the Supreme Court on 11 February 2016.

2. On the basis of the above events, the husband states that he has come to the conclusion that the wife “divulges to other persons documents and correspondence referable to our family law proceedings and that she does so in the knowledge that such items could potentially be used against [the husband] in other Court proceedings.” 

3. I am satisfied that the lawyers for the wife understand the Harman obligation. In the first instance, any inspection of documents will be limited to inspection by the wife’s lawyers.

4. The wife’s lawyers can convey to the wife information that they obtain as a result of the inspection of the documents but the wife will be restrained, pending further order, from discussing that information with anybody other than the lawyers who have inspected the documents.

PROCEDURAL FAIRNESS TO THE OTHER PARTIES IN THE FEDERAL COURT PROCEEDINGS

1. I accept that there is an argument in relation to the procedural fairness of ordering that the Registrar of this court make a request of the Registrar of the Federal Court without all parties to that litigation being aware that that request is being made and without them having an opportunity to argue that either the request should not be made or that the documents or part of the documents should not be made available for inspection. For that reason, the implementation of the order will be deferred until 28 days after the service of the orders upon all parties to the Federal Court proceedings apart from the husband.

CONCLUSION

1. On its face, it seems that there may have been a suppression of information provided by the husband to the wife at the time the wife consented to the making of the s 79 order. It is not “fishing” in that context for the wife to attempt to acquire knowledge about the husband’s financial circumstances that, prima facie, are contained in documents filed in what appears to be extensive litigation in the Federal Court.

2. It is not necessary for the wife to particularise, in the way that the lawyers for the husband assert that she is required to do, all the facts and circumstances which give rise to the allegation of suppression of evidence and giving of false evidence and the precise nature of each piece of evidence which the wife alleges were suppressed or was given which was false. The wife should have an opportunity to know about the information that the husband and others have provided the Federal Court and after that time indicate to the husband what she knew and what she did not know at the time of the making of the s 79 order.

I certify that the preceding thirty-one (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 4 July 2016

Associate: 

Date:  4 July 2016