Carpani and Arjuna

[2018] FamCA 138

FAMILY COURT OF AUSTRALIA

CARPANI & ARJUNA [2018] FamCA 138

FAMILY LAW – PROPERTY – Injunction – Where the wife makes an application for an injunction preventing the disbursement or depletion of matrimonial property pursuant to section 114(1) (e) – Where it is convenient for the Court to make such an order – Where the wife would be significantly prejudiced if property were to be removed from the Court’s jurisdiction – Application granted.

Family Law Act 1975 (Cth) s. 114(1)(e)
Family Law Rules 2004(Cth), rr. 5.12

Cardile v LED Builders Pty Limited [1999] HCA 18

APPLICANT: Ms Carpani

RESPONDENT: Mr Arjuna

FILE NUMBER: SYC 3055 of 2017

DATE DELIVERED: 19 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 19 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Long

Orders

THE COURT ORDERS PENDING FURTHER ORDER:

1. Orders are made in accordance with the document titled “minute of orders” dated 19 February 2018 filed herein and set out hereunder;

   1.That pursuant to section 114(1)(e) of the Family Law Act 1975 (Cth) the Respondent, Mr Arjuna, is restrained from withdrawing, transferring or dealing in any way with monies that may be held by him as follows:

   (a)   P Bank rewards transaction account number …4; and/or

   (b)  Any other account held by or in the name of Mr Arjuna (born on … 1980) with P Bank.

   (c)  Commonwealth Bank of Australia complete access account …42; and/or

   (d)  Any other account held by or in the name of Mr Arjuna (born on … 1980) with the Commonwealth Bank of Australia.

   (e)  Q Bank cheque account number …16; and

   (f)   Q Bank plus account number …16; and/or

   (g)  Any other account held by or in the name of Mr Arjuna (born on … 1980) with the Commonwealth Bank of Australia

   2.That the Respondent, Mr Arjuna, is restrained from receiving (other than in the account referred to at paragraph 1.a. above) any monies that may be payable to him by his employer (or former employer) P Bank as a result of the conclusion of his employment with P Bank and/or Commonwealth Bank of Australia.

   3.That to facilitate Orders 1 and 2 above, P Bank is requested to assist in the implementation of these Orders so as not to act upon any direction by or on behalf of Mr Arjuna to pay out, transfer and/or distribute any monies to or on behalf of Mr Arjuna colleague ID … as a result of his employment with P Bank and/or cessation of his employment with P Bank.

   4.That to facilitate Orders 1 and 2 above, P Bank is requested to assist in the implementation of these Orders so as not to act upon any direction by or on behalf of Mr Arjuna to pay out, transfer and/or distribute any monies held in:

   (a)account …4 BSB …; or

   (b)any other account held by or in the name of Mr Arjuna (born on … 1980).

   5.That to facilitate Orders 1 and 2 above, Commonwealth Bank of Australia is requested to assist in the implementation of these Orders so as not to act upon any direction by or on behalf of Mr Arjuna to pay out, transfer and/or distribute any monies held in:

   (a)account number …42; or

   (b)any other account held by or in the name of Mr Arjuna (born on … 1980).

   6.That to facilitate Orders 1 and 2 above, Q Bank is requested to assist in the implementation of these Orders so as not to act upon any direction by or on behalf of Mr Arjuna to pay out, transfer and/or distribute any monies held in:

   (a)account number …16;

   (b)or any other account held by or in the name of Mr Arjuna (born on … 1980).

   7.That to facilitate Orders 1 and 2 above, Q Bank is requested to assist in the implementation of these Orders so as not to act upon any direction by or on behalf of Mr Arjuna to pay out, transfer and/or distribute any monies held in:

   (a)account number …16;

   (b)or any other account held by or in the name of Mr Arjuna (born on … 1980).

   8.That pursuant to section 114(1)(e) of the Family Law Act 1975 (Cth) the Respondent, Mr Arjuna, is restrained from rolling over, transferring or dealing in any way with monies that may be held by him in the Commonwealth Bank Super account number …02, customer ID ….

   9.That pursuant to section 114(1)(e) of the Family Law Act 1975 (Cth) the Respondent, Mr Arjuna, is restrained from rolling over, transferring or dealing in any way with monies that may be held by him in the P Bank Staff Superannuation Plan, or any other superannuation fund for P Bank company or employees in which Mr Arjuna (born on … 1980) may have an interest.

   10.That the Respondent, Mr Arjuna, is restrained from selling, transferring, disposing of or in any way dealing with his interest in:

   (a)Motor bike registration …; and/or

   (b)Motor vehicle.

   11.That pursuant to section 114(1)(e) of the Family Law Act 1975 (Cth) the Respondent, Mr Arjuna, is restrained from selling, encumbering, transferring, or disposing of his interest in the following properties:

   (a)City E Property, India

   (b)Property 6, India

   (c)Property 7, India

   12.That within seven (7) days of the making of these Orders, a sealed copy of the Orders be served upon the Respondent as follows:

   (a)At his last known email address – “…”

   (b)By overseas post to his parents’ address in India as follows:

   Mr Arjuna
   …
   INDIA

   13.That a copy of these Orders may be served upon:

   (a)P Bank Legal, Attention to: The Proper Officer, … and also by facsimile to the P Bank Legal Team at …;

   (b)Commonwealth Bank, …;

   (c)Q Bank, …

   14.That the Applicant be given leave to issue subpoena to:

   (a)P Bank;

   (b)Commonwealth Bank of Australia;

   (c)Q Bank;

   (d)Commonwealth GroupSuper;

   (e)P Bank Staff Superannuation Plan (or other named P Bank employee superannuation plan).

   15.[deleted]

   16.That leave be granted to the Applicant to have this Application heard on an urgent basis.

   17.That leave be granted to the Applicant to have this Application heard on an ex parte basis.

   18.That the question of costs is reserved.

2. The respondent husband has liberty to apply for the matter be urgently brought back before the Court.

3. Costs are reserved.

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 Carpani & Arjuna 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 SYDNEY

FILE NUMBER: SYC 3055 of 2017

Ms Carpani

Applicant

And

Mr Arjuna

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, the wife has sought injunctions to prevent the disbursement or depletion of matrimonial property pending further consideration by the Court. The application is made pursuant to section 114(1)(e) of the Family Law Act 1975.

2. The background to this matter is set out in the wife’s affidavit dated 13 February 2018. Briefly stated, the husband is 37 years of age. The wife is 36 years of age. The parties were married in 2008.  Between 2009 and 2013, the parties lived in Country M. In July 2013, the husband relocated to Sydney for work. In December 2013 the wife relocated from Country M to join the husband in Sydney.

3. The wife attests that the financial affairs of the parties have thereafter been dealt with primarily from Australia. The breakdown of the parties’ relationship appears to have occurred on or around 18 September 2016 when the parties separated. Between October 2016 and January 2017, the parties commenced discussions about applying for a divorce in Australia. 

4. On 31 January 2017, the wife’s solicitors sent a letter to the husband indicating the desire on the part of the wife to commence negotiations for a property settlement. The wife attests that within a week of receiving that letter, on 6 February 2017, the husband transferred an amount of $95,000 from his Commonwealth Bank account in Sydney. 

5. That transaction was considered in a decision by Stevenson J dated 4 August 2017. At paragraph 12 of that decision her honour stated;

   On 6 February 2017, within days of receipt of the letter from the wife's solicitors, the husband withdrew $95,000 from his Commonwealth Bank account in Sydney (Exhibit 1).  The husband gave no explanation for this withdrawal or the fate of these funds.

1. Prior to December 2017, the husband has been represented in these proceedings and has been on notice regarding relevant orders and his obligations pursuant to those orders.

2. The evidence before the court satisfies me that since December 2017, the husband has detached himself from these proceedings and has failed to comply with orders and directions made by the Court, including in respect to the important issue of disclosure of documents that are relevant to the proceedings.

3. In circumstances where the husband has disengaged from the proceedings, the wife has applied for orders on an ex parte basis. This is in circumstances where communication has been made to the last known address of the husband in Australia.  

4. The solicitor for the wife addressed the relevant considerations pursuant to rule 5.12 of the Family Law Rules. In addressing the relevant considerations for the court to deal with a matter on an ex parte basis I note;

   a.In terms of rule 5.12(b)(iv), the husband has failed to comply with orders of the Court.

   b.In terms of Rule 5.12 (b)(vi), the wife has set out her view of the potential hardship to the respondent if the relief she seeks is granted. In that respect the orders sought by the applicant is essentially a preservation order. That is the effect of the order is to preserve the property of the parties to the marriage pending the husband re-joining with the proceedings by appearing in court or being represented in court by an agent or representative. The orders sought are of an interim nature pending that occurring.

   c.In terms of Rule 5.12 (b)(vii), the applicant wife has provided to the Court with an undertaking as to damages, which is exhibit W1 in these proceedings.

   d.In terms of Rule 5.12 (b)(viii), there is a real risk that the mother would suffer further harm if an order is not made. In that respect I note that on 6 February 2017, the husband removed some $95,000 from one of the parties’ accounts.

   Furthermore, the husband has left his employment in Australia and the evidence suggests that he now resides overseas. On the basis of evidence presented by the wife I accept that there would be significant harm in terms of depletion of marital property that exists in the jurisdiction. 

   e.In terms of Rule 5.12(b) (ix), the wife has presented evidence that the husband may shortly be obtaining some additional employment benefits including, a potential superannuation entitlement. The effect of the orders sought by the wife would be to preserve that entitlement pending further consideration of the parties’ respective claims in this court.

5. Having regard to rule 5.12, I am satisfied that it is appropriate to make these orders on an ex parte basis.

6. In terms of considering the merits of the application, I note that, in Cardile v LED Builders Pty Limited [1999] HCA 18 at paragraph 32, the Court said that:

   The Court may grant an injunction in all cases in which it appears to the Court to be just and convenient to do so.

7. In this matter, the injunctions are sought with a view to preserving the property of the parties pending further consideration by the Court. I note in that context, in Cardile, Kirby J stated that:

   Such orders [in the nature of a preservation injunctive], have been developed as much to protect and defend the court’s process from abuse as to protect and defend the interests of the potential judgment creditor. This point was made in the Canadian case of Grenzservice Speditions v Jans where Huddart J observed:

   “The Mareva and Anton Piller orders were conceived not so much to protect the plaintiffs as to protect the court’s jurisdiction against defendants bent on dissipating or secreting their assets or evidence in order to render inconsequential the judicial process against them.”

8. I further note that, in terms of considering this matter, that the husband’s actions in removing $95,000 from a joint account occurred in circumstances where the wife had appropriately made an endeavour to comply with her pre-action obligations, pursuant to Schedule 1 of the Family Law Rules, to take reasonable steps to attempt to resolve matters in dispute between the parties.

9. In considering the balance of convenience, as I have noted, the injunctions sought are of a protective nature with a view to preserving the marital property pending further consideration of the Court. The husband is entitled to have the matter expeditiously returned to the Court for his interests to be considered.

10. On the other hand, should further assets be removed from the jurisdiction, by the husband, the wife would suffer significant prejudice. Specifically the removal of further matrimonial property may potentially prevent the Court from making appropriate orders to achieve a just and equitable distribution of the parties’ marital property.

11. Having regard to the matters to which I have referred, I propose to make orders as sought by the wife, with modifications, in so far as they would impact on third parties who have not been given notice of these proceedings. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 19 February 2018.

Associate: 

Date:  08 March 2018