Brack and Mason

[2012] FamCA 325

FAMILY COURT OF AUSTRALIA

BRACK & MASON [2012] FamCA 325

FAMILY LAW - PROPERTY - Preservation of assets - Where the Wife seeks Orders to preserve the parties' assets pending trial - Where the Husband has pleaded guilty to an offence of attempting to leave Australia with $159,000 in cash without the permission of the Australian Government – Where the Husband’s plan to depart Australia in the vessel “BB” was without the knowledge or consent of the Wife after these proceedings were instituted

Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth)

Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166

APPLICANT: Ms Brack

RESPONDENT: Mr Mason

FILE NUMBER: BRC 651 of 2012

DATE DELIVERED: 8 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 8 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J Brasch

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

COUNSEL FOR THE RESPONDENT: Mr R Clutterbuck

SOLICITOR FOR THE RESPONDENT: Littles Lawyers

Orders Until Further Order

1. The Respondent Husband, Mr Mason, by himself, his servants and agents, be restrained by injunction from disposing, selling, mortgaging, pledging, transferring or dealing with the following properties:

(a)       … C Street, Town Z, Tasmania, more particularly described as Lot … on SP …, Town of …;

(b)       … T Street, Town G, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(c)       … F Street, Suburb M, Tasmania, more particularly described as Lot … on Plan …, City of …;

(d)       Property 1, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(e)       Property 2, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(f)       Property 3, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(g)       Property 4, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(h)       Property 5, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(i)        Property 6, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(j)        Property 7, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(k)       Property 8, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(l)        Property 9, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(m)      Property 10, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of …;

(n)       Property 11, Y Street, Town H, Tasmania, more particularly described as Lot … on Diagram …, Parish of …, District of ….

and this order is authority to the existing mortgagees, ANZ bank  and Westpac Bank, to take such steps as may be necessary to prevent the further mortgaging of the above properties by the Respondent Husband, Mr Mason.

1. Pending further order the Respondent Husband be restrained from withdrawing funds from any account, loan or overdraft facility held in or about the company D Pty Ltd, and this order is authority to the Westpac bank to take such steps as may be necessary to prevent further drawings on the accounts by the Respondent Husband.

2. Pending further order the Respondent Husband be restrained from withdrawing funds from the parties’ joint ANZ Overdraft account number …26, and this order is authority to the ANZ bank to take such steps as may be necessary to prevent further drawings on the account by the Respondent Husband.

3. The Respondent Husband deliver up to the Applicant Wife within 21 days, any documents within his power possession or control relating to the company D Pty Ltd.

Orders

1. The Wife cause to be paid from the funds seized by the Australian Federal Police from the Husband and now held in the trust account of the Wife’s solicitors, the sum of $20,000 to the trust account of the Husband’s solicitor, as and by way of partial property settlement.

2. The Husband’s Application in a Case filed 8 May 2012 be dismissed.

3. That the interim orders sought by the Husband in his Response to an Initiating Application filed 3 May 2012 be dismissed.

4. The oral application made on 8 May 2012 by the Husband on behalf of Ms S in relation to two jetskis, be dismissed.

5. The parties’ costs of and incidental to this hearing be reserved to the trial judge.

Orders by Consent

1. The real properties situated in Tasmania be valued by a single joint expert, as agreed between the parties, with the costs to be shared equally.

   (a)       The Wife provide a panel of three valuers to the Husband and the Husband nominate one within seven days, and in the event he fails to do so within that time that the Wife elect a valuer from the panel, and that person shall be deemed the single expert.

   (b)       The Wife provide a draft letter of instruction to the Husband, and if he fails to respond to same within seven days, the Wife be at liberty to instruct the expert accordingly.

2. The real properties situated in Queensland be valued by a single joint expert, as agreed between the parties, with the costs to be shared equally.

   (a)       The Wife provide a panel of three valuers to the Husband and the Husband nominate one within seven days, and in the event he fails to do so within that time that the wife elect a valuer from the panel, and that person shall be deemed the single expert.

   (b)       The Wife provide a draft letter of instruction to the Husband, and if he fails to respond to same within seven days, the Wife be at liberty to instruct the expert accordingly.

3. The vessel “BB” be valued by a single joint expert as agreed, and failing agreement, as ordered by the Court, with the costs to be shared and the valuation to include all accessories on or about the vessel.

4. Within 30 days, each party provide disclosure.

5. Each party take all steps to crystallise their respective taxation obligations.

6. In the particular circumstances of the case the matter proceed to trial without further mediation or conciliation conference.

7. The matter be listed for mention/directions on a date to be fixed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brack & Mason 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 BRISBANE

FILE NUMBER: BRC 651 of 2012

Ms Brack

Applicant

And

Mr Mason

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the brief background of the marriage is that the parties met in or about February 2008, married in June 2009, and separated on a final basis on 12 December 2011. There are no children of what is, on any view of things, a short marriage.

2. The Wife is about 52 years of age and is a retired healthcare worker, and the Husband is 46 years of age and is said to work in the construction industry but is currently not in employment.

3. After the Wife initiated property proceedings in this Court, the Husband was arrested in early 2012 by the Australian Federal Police on board the vessel known as “BB”, and he was charged under the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth), with an offence of attempting to remove from Australia an amount in the order of $159,000.00 in cash without permission to so do. The Husband has been dealt with in the Magistrates Court with respect to that offence on his own plea of guilty.

4. On 20 April 2012, His Honour Justice Bell made a number of Orders on an ex parte basis, and a range of injunctions issued and Orders were made with respect to the boat, BB.

5. It is the Wife’s case in the substantive proceedings that to this short marriage she contributed, in one form or another, capital in the order of $10,000,000.00 in circumstances where it is submitted that the pool as it currently exists is unlikely to exceed something in the order of $4,200,000.00. The subject vessel, BB, is said to have a value of $800,000.00, and thus is a substantial part of the remaining pool of assets.

6. The Wife’s application for today’s purposes was essentially in the nature of a range of Orders designed to preserve the remaining asset pool whilst the Husband sought an Order that, notwithstanding the background to which I have referred and the Order made by Justice Bell, that the vessel BB be returned to him in the sense that he be permitted to reside again on the boat pending the trial of the substantive proceedings.

7. In the course of submissions, at the invitation of the Court, the Wife was prepared to agree that of the $159,000.00 or thereabouts in cash that has now been returned by the Australian Federal Police and is held by or on behalf of the Wife in her solicitors’ trust account, that the sum of $20,000.00 of that be paid as and by way of partial property Order to the Husband pending the trial. There is no evidence before me from the Husband as to his anticipated legal costs or other expenses and I was referred to a Financial Statement the Husband filed several days ago, disclosing that he already holds an amount in the order of $27,000.00 in a bank account. The Wife’s position, in effect, is that if the Husband has access to and use of the $27,000.00, and the further $20,000.00 which she consents to being provided to him, that removes any imperative for the Husband to have permission to reside on the boat or for the boat to be returned to him.

8. It is part of the Wife’s case and will be her case at trial, that the Husband’s departure or proposed departure in March 2012 was an attempt to abscond the jurisdiction in circumstances where the Husband was then aware of the property proceedings being on foot. The Wife’s case at trial will in effect be that the Husband, knowing that the Wife had supplied all of the capital to the marriage and then some by reference to what remains, that the Husband was attempting to abscond with a substantial asset, namely the vessel BB. I make no conclusions about that aspect of the case beyond noting that the factual background includes the fact that the Husband, by his own admission, was departing to Fiji, he says to have certain work performed on the vessel, and he was going to use the whole or part of the $159,000.00 in cash for that purpose. However, as noted, that was at a time when the Wife had instituted the property proceedings and there is no suggestion that the Husband had notified the Wife in advance of his plans in that respect.

9. As is well known, partial property Orders are not granted for the asking. The decision in Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 (“Strahan”) sets out the principles the Court must apply in making Orders for partial property settlement. It is against the background that usually the preferred course in s 79 proceedings that there be a once and for all determination of the entitlements.

10. Apart from the discretionary considerations set out in Strahan, an imperative in respect of a partial property settlement Order is that it be reversible in effect; that is, that having regard to the potential outcome of the property proceedings, that no harm will be done to the Orders made pursuant to the Court’s determination of the final s 79 relief by an interim Order for property made prior to that time. In this case, it is the Wife’s case, as noted, that she is entitled to the whole of what remains in the pool on the case she advances in the substantive proceedings.

11. On that basis, I cannot be satisfied that an interim property Order, beyond that consented to by the Wife, ought be made. In those circumstances, and given the background to which I have referred, I am satisfied that there are reasons for making the injunctive Orders designed to preserve the asset pool pending the Court’s consideration of the final Orders by way of s 79 relief sought by each party. With the modification that has been referred to in argument, I also am satisfied that an Order ought be made in terms of the disclosure with respect to the company known as D Pty Ltd, and I will include that Order in my Orders. Otherwise, I propose to make Orders in terms of those sought by the Wife on her application in paragraphs 4 to 7, with the qualification that I will make an Order reserving each party’s costs of and incidental to these proceedings to the trial.

12. I note that the provision of funds on an interim basis will obviate any need for the Husband to be accommodated on the vessel as he originally sought on this application, and I have already noted that no evidence was provided by the Husband on this application of his future potential costs in terms of the legal costs of the proceedings. If it be that the Husband seeks a further interim Order, that is a matter for the Court to consider on a properly formulated application on proper evidence at that time.

13. The Husband also sought, somewhat curiously, an Order in favour of one Ms S, whose affidavit was filed in this Application, seeking that the Court make an Order returning two jetskis to Ms S. I decline to make that Order on the basis that there is an issue as to ownership of the jetskis; the Wife contends that the Husband is yet to provide or Ms S is yet to provide documentary evidence to support the assertions she makes in the affidavit, and in any event, if Ms S contends that property thought by either party to be property of the parties is hers, she can intervene in the proceedings and seek Orders in the proceedings with respect to that property.

14. I therefore make Orders as set out at the commencement of these reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 May 2012.

Associate: 

Date:  9 May 2012