Carew and Carew

[2008] FamCA 505

FAMILY COURT OF AUSTRALIA

CAREW & CAREW [2008] FamCA 505

FAMILY LAW – COURTS AND JUDGES - Disqualification

APPLICANT: Mrs Carew

RESPONDENT: Mr Carew

FILE NUMBER: SYC 2398 of 2007

DATE DELIVERED: 27 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 27 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Carney

SOLICITOR FOR THE APPLICANT: Barkus Edwards Doolan

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Watts McCray

ORDERS

IT IS ORDERED UNTIL FURTHER OR FINAL ORDERS:

1. That leave is granted to list this application on short notice.

2. That I transfer these proceedings to another Judge sitting in the Sydney Registry of the Family Court of Australia and note that such proceedings should be listed for mention on the earliest available date convenient to that Judge.

3. That subject to orders 4 and 5 herein the husband

   a.Shall forthwith sign all deeds, documents and instruments and do all things as are necessary to irrevocably authorise and direct each of:

   i)   Minter Ellison Lawyers;

   ii)    E Holdings Pty Ltd;

   iii)  Citibank, NA; and,

   iv)   any other relevant person or entity

   to cause all payments to be made to, for the benefit of, on behalf of or at the direction of the husband pursuant to the terms of the Share Purchase Agreement dated 7 March 2008 and Escrow Agreement dated 7 March 2008 in relation to the sale by the husband (and others) of their respective share in N Corporation Pty Limited to E Holdings Pty Limited to be paid in the first instance to the trust account of Watts McCray Lawyers and thereafter to be invested on behalf of the husband and the wife in an interest bearing bank account within the Commonwealth of Australia as nominated by the husband within 7 days of the date of these orders and failing such notification in an interest bearing controlled moneys account to be conducted by the solicitors for the husband and the wife pending agreement or further order of the Court;

   b.is hereby retrained by injunction from doing any act or thing or authorising any person to do any act or thing to cause the moneys held in any account in the name of the husband (or any nominee company and/or any trustee of any trust on behalf of the husband in the individual name of the husband or the nominee company) within the Commonwealth of Australia (including but not limited to) savings, cheque, credit cards, loans, overdraft facilities) to be disbursed or transferred to any account outside the Commonwealth of Australia; and,

   c.is hereby restrained by injunction from doing any act or thing or authorising any person to do any act or thing to cause any moneys received from, in relation to or as a consequence of the Commsec Portfolio accounts and/or all Australia publicly listed shared held by or behalf of the husband in the individual name of the husband or nominee company and/or trustee of any trust on behalf of the husband in the individual name of the husband or the nominee company to be disbursed or transferred to any account outside the Commonwealth of Australia.       

4. That the husband is hereby entitled to have access to and disburse from his funds and any fund referred to in order 3. up to $1000.00 per day for his maintenance.

5. That order 4. herein shall continue until 6.00pm on the day the matter is first heard pursuant to order 2. herein.

6. That leave is granted to serve a copy of these orders on the following:

   i)E Holdings Pty Limited at Mallesons Stephen Jacques at Sydney New South Wales;

   ii)Citibank, NA at Citibank Centre Sydney New South Wales;

   iii)Minter Ellison Lawyers at Sydney New South Wales;

   iv)Commonwealth Bank of Australia, St George Bank Limited, Australia and New Zealand Banking Group, Bank of Western Australia Limited, ING Bank Limited and Westpac Banking Group; and,

   v)Commonwealth Securities Limited.

7. That I disqualify myself from taking any further part in these proceedings.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2398 of 2007

MRS CAREW

Applicant

And

MR CAREW

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. In these proceedings the wife has sought urgent orders.  The purpose of her application is an attempt to prevent further funds being allowed to leave the jurisdiction and therefore become more difficult to be made available to her in her s 79 claim in circumstances where it may be that the only resort the wife will have to meet any orders she obtains in her favour is from funds in Australia. Yet those funds are, nevertheless, subject to claims by third parties.

2. The amount she ultimately is ordered to receive might well exceed the funds in Australia or the funds remaining in Australia; remaining after third parties have exercised their right to them.  The husband has countered by applying for me to disqualify myself. I think that I should disqualify myself.  In previous interlocutory proceedings in this matter I have held that the husband misled the Court or his solicitor and, through his solicitor, in any event misled the Court.  In my view that is a reason for me to disqualify myself from further hearing of the matter except so far as necessity might require me to continue in it.   

3. It is my view that if there is a substantial risk of the husband being able to transfer further funds from the jurisdiction and therefore of putting them out of  wife’s reach, it would be proper for me to make orders restraining him from doing that or to make other orders which have the same effect before disqualifying myself, provided I make orders that the matter come as soon as possible before another Judge and provided that I make it perfectly clear that my orders are to remain  in force only so long as the matter cannot be determined by another Judge.  I am of the view that the greater risk in these proceedings is that the husband will put further funds out of reach of the wife if given the opportunity.  His case is that the wife is mistaken in thinking that there will be a further large payment to him soon and that therefore there is any need for haste in making an order restraining him. 

4. There are two other submissions. One is that, in any event, the orders that the wife seeks are too wide ranging and restrictive and are therefore unjust because they will prevent him even making an eBay purchase for a small amount from an overseas supplier.  I asked counsel for the husband to give me an instance of the husband being significantly disadvantaged. None was provided.  The other argument the husband put forward is that the wife has already had her chance to seek restraining orders and this is, so to speak, a second and impermissible bite of the cherry. 

5. I am moved by the fact that the husband has, so far as I know, put on no evidence. The information obtained by the wife has been obtained by persistence and tenacity rather than by the voluntary supply of information by the husband. The husband’s real case is that, because he has made arrangements which make it difficult to obtain information and to reverse the arrangements, that, it is not his fault that he now has difficulty obtaining information. 

6. In my view his difficulties are likely to be more theoretical than real but it seems to me that there is a real, flavour in this case of the husband putting undue obstacles before the wife and her legal advisors.  Not only in relation to the ultimate ability to reach the funds that the wife might ultimately be entitled to, but also in the wife’s ability to obtain information, and that the wife is entitled to seek such orders as are appropriate on obtaining fresher information. It is my view that this is precisely what she has done.  The fresh information, among other things, seems to indicate that whereas at all times until today I had been informed that the sale price of the business that is at the nub of the dispute was $44m, the evidence now seems to be that it was $60m US dollars, something that has only recently come to light as a result of additional information obtained by the wife. I have not lost sight of the fact that, in all the proceedings prior to today’s, when this matter was raised, not one word of suggestion was made that the sale price was other than $44m. The husband has not said it was not $60m, but until today this Court had always been led to believe that the sale price was $44m and not disavowed of that belief.

7. In the circumstances, it seems to me that I should consider the orders that the wife seeks but should only make orders that are necessary to protect her interests until such time as another Judge can hear the matter and hear the husbands case after he has had the opportunity to put on his evidence and any cross application he might seek to make. I shall make such orders.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date: