CAMOES & BLIZZARD - [2017] FamCA 8

FAMILY COURT OF AUSTRALIA

CAMOES & BLIZZARD

[2017] FamCA 8

FAMILY LAW – Urgent injunction restraining entitlement already ordered under a property settlement where application to vary orders is now pending – Injunction granted.

Family Law Act 1975 (Cth)

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1
Australian Broadcasting Corporation v O’ Neill (2006) 227 CLR 57; [2006] HCA 46
Baker v R [2004] HCA 45; (2004) 223 CLR 513
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Jackson and Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612
Keane & Keane [2013] FamCA 332; 50 Fam LR 120
R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198

APPLICANT:

Mr Camoes

RESPONDENT:

Ms Blizzard

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8891

2013

DATE DELIVERED:

18 January 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

23 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Berger, Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Swart

SOLICITOR FOR THE RESPONDENT:

Robinson Gill

INDEPENDENT CHILDREN’S LAWYER:

Ms Lonergan, Victoria Legal Aid

Orders

That until further order the mother is restrained by injunction from instructing her solicitors Robinson Gill in their capacity as the solicitors responsible for the conveyancing of the sale of D Street, Suburb E to pay to her from the proceeds of such sale the sum of $110,000.
That the said solicitors are deemed by the court to be trustees for the wife in respect of the said $110,000 which sum shall be held in an interest bearing account and the said solicitors are restrained by injunction from releasing any of those funds without written agreement by the father or without further order of the court.
Paragraphs 4, 5 and 7 of the interim application contained in the response filed 22 December 2016 are dismissed.
That paragraph 6 of the said response is adjourned to 9.00am on 3 February 2017.
That the question of any costs of either party arising out of this application are adjourned to the return date of 3 February 2017.
That the reasons for these orders be published as soon as practicable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Camoes & Blizzard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8891 of 2013

Mr Camoes

Applicant

And

Ms Blizzard

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

An urgent application was filed 22 December 2016 by Mr Camoes…

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.

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Details

AGLC: CAMOES & BLIZZARD [2017] FamCA 8
Case: [2017] FamCA 8
Decision Date: 18 January 2017

CaseChat Overview and Summary

In the Family Court of Australia, Cronin J considered an urgent application by the father (the applicant) seeking an injunction to restrain the mother (the respondent) from receiving a specific sum of money from the sale of a property. The dispute arose in the context of existing property settlement orders, where the mother was entitled to $110,000 from the sale proceeds, but an application to vary these orders was pending.

The central legal issue before the court was whether an injunction should be granted to prevent the mother from accessing the $110,000, despite her entitlement under existing orders, given the pending application to vary those orders. The court was required to balance the mother's existing entitlement against the father's concerns that the funds might be dissipated or that the final outcome of the property settlement might be prejudiced by the mother receiving the money before the variation application was heard.

Cronin J reasoned that the court retained the power to grant an injunction in such circumstances to preserve the status quo and ensure the effective administration of justice, particularly where there was a genuine prospect that the existing orders might be varied. The court applied principles relating to the granting of urgent injunctive relief, considering the potential for irreparable harm if the funds were released and the balance of convenience. The court ultimately granted the injunction, restraining the mother from instructing her solicitors to pay her the $110,000 from the sale of the property.

The court ordered that the mother be restrained from receiving the $110,000 from the sale of the property. Her solicitors were deemed trustees of this sum, to be held in an interest-bearing account and not to be released without the father's written agreement or further court order. Certain interim applications were dismissed, and other matters, including the question of costs, were adjourned.

Orders

Orders of the court

1. That until further order the mother is restrained by injunction from instructing her solicitors Robinson Gill in their capacity as the solicitors responsible for the conveyancing of the sale of D Street, Suburb E to pay to her from the proceeds of such sale the sum of $110,000.

2. That the said solicitors are deemed by the court to be trustees for the wife in respect of the said $110,000 which sum shall be held in an interest bearing account and the said solicitors are restrained by injunction from releasing any of those funds without written agreement by the father or without further order of the court.

3. Paragraphs 4, 5 and 7 of the interim application contained in the response filed 22 December 2016 are dismissed.

4. That paragraph 6 of the said response is adjourned to 9.00am on 3 February 2017.

5. That the question of any costs of either party arising out of this application are adjourned to the return date of 3 February 2017.

6. That the reasons for these orders be published as soon as practicable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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