Castles and Pesic

FAMILY COURT OF AUSTRALIA

CASTLES & PESIC

[2008] FamCA 1003

FAMILY LAW – INJUNCTIONS –Wife’s application for ongoing injunction restraining husband from departing from Australia until he pays or provides security for payment of a costs order made following a trial in which husband was found to have had substantial undisclosed funds in overseas bank accounts that he had been ordered to transfer to Australia but had not done so

Family Law Act 1975 (Cth) s 114(3)

Brown v Brown (2007) FLC 93-316
Khademollah v Khademollah (2000) FLC 93-050

APPLICANT:

Ms Castles

RESPONDENT:

Mr Pesic

FILE NUMBER:

MLC

5548

2008

DATE DELIVERED:

6 AUGUST 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

WATT J

HEARING DATE:

6 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS CAMPBELL

SOLICITOR FOR THE APPLICANT:

FORTE FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT:

IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

The husband’s comments made at the beginning of the hearing and before he left the court in this matter be transcribed and a copy be sent to each of the parties and a copy placed on the court file.
Until further order THE HUSBAND born … May 1963 be and is hereby restrained from departing the Commonwealth of Australia until such time as he pays or makes provision and provides security for payment of the order for costs in the sum of $120,000 made by me on 18 January 2008 AND I DIRECT that his name remain upon the Airport Watch List until ordered to be removed by a judge of this Court.
The wife’s application filed 19 June 2008 is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 9526 of 2000

MS CASTLES

Applicant

And

MR PESIC

Respondent

REASONS FOR JUDGMENT

At this hearing Ms Campbell appeared for the applicant wife, and the husband appeared in person. As has happened in earlier hearings, both before me and before at least one other judge, the husband left the courtroom before the hearing had concluded. Paragraphs 43 and 44 of the ex tempore judgment delivered by Justice Guest on 7 September 2006 describe the husband leaving the court room during the hearing of a costs application by the wife following the dismissal of the husband’s application seeking permission to travel overseas. The husband left the court room on 24 November 2006 during the final hearing of the applications before me (he later returned and participated in the hearing to its conclusion).
The application before me today was filed by the wife on 19 June 2008 and seeks the continuation, on an indefinite basis/ until further court order, of an injunction that was first made by another judge in 2005 and last extended by me on 20 March 2008 that restrains the husband from leaving the Commonwealth of Australia.
The history of the extended financial proceedings in this matter is summarised in a judgment that I delivered on 18 January 2008 and I refer particularly to paragraphs 1, 18, 19, 20, and 39 to 48 of that judgment (“the January 2008 judgment”).
The history of the injunction and the factual matrix within which it arose should be outlined at this point.
During the marriage the husband lived and worked outside Australia, primarily in the Middle East and Asia from March 1996 to mid November 2000. On his return to Australia on 18 November 2000 the husband was served with an order made on a without notice basis on 11 November 2000 which inter alia restrained the husband from leaving the Commonwealth of Australia. Consent orders were made on 7 December 2000 following negotiations and pursuant to these orders the restraint on the husband was removed as from 12 noon on 8 December 2000: see paragraph 20 of the January 2008 judgment. On 11 December 2000 the husband left Australia and did not return until June 2005. For a substantial part of that period he was employed in Asia, and thereafter in the Middle East, and perhaps elsewhere.
The husband has expertise in relation to communications technology. In those periods of his employment overseas for which there was evidence, that evidence showed that he could earn much more overseas than when in Australia. In the January 2008 judgment, I found that the husband’s evidence (given in an earlier stage of the proceedings) established that he was earning $301,600 in December 2000 in Asia. I did not accept his evidence that he had earned reduced amounts in Asia between December 2000 and March 2003 and found that he had failed to disclose his income at all in respect of the period July 2003 to May 2005, when he was working in the Middle East, and perhaps other overseas locations: see paragraphs 171 to 185 of that judgment.
It was the wife’s case at all relevant times that the husband had between December 2000 and June 2005 been in a position to accumulate further savings of the kind that were accumulated from overseas employment whilst the parties were together, and that these were substantial: see paragraphs 171 to 185 of the January 2008 judgment.
On the husband’s return to Australia in June 2005, the wife filed two applications in a case on 30 June 2005. The first sought urgent ex parte relief that until further order “the husband be and is hereby restrained upon his return in Australia from again leaving or attempting to leave the Commonwealth of Australia …” and “that the wife cause the husband to be served as soon as practicable after his return to Australia with sealed copies of the application, her affidavit sworn 30 June 2005 and a copy of this order”. The second application in a case sought enforcement of a number of financial orders made 11 October 2001. The second application was given a hearing date of 7 July 2005.
The wife appeared before Brown J on 30 June 2005 on her first application on a without notice basis and obtained an injunction until further order restraining the husband from leaving or attempting to leave the Commonwealth of Australia and placing his name on the Airport Watch List and maintaining his name on the Watch List until the Court ordered its removal. The wife filed an affidavit in support of her application sworn 30 June 2005. In her ex tempore judgment delivered on 30 June 2005 Justice Brown states in paragraphs 3 and 5:
In 2000 litigation commenced in this court relating to financial matters. On 11 October 2001 Joske J made orders which provided for the payment of a number of sums to the wife. Some were by way of partial property settlement. Some were by way of spousal maintenance. … Joske J also made child support departure orders. Including the interest which the wife deposes to be outstanding, the debt unpaid as a result of the husband’s failure to comply with the orders is more than $340,000.
….
The wife’s evidence is that the husband is coming to Australia. .I understand he may have already arrived today. She seeks to restrain his departure from Australia until her enforcement application can be heard. It is listed on 7 July. .. It is a serious – some might say draconian - step, and not lightly undertaken, to stop the freedom of movement of a party pending the hearing or resolution of legal proceedings. However, I am satisfied that the evidence before me justifies an order being made restraining the husband’s departure until the adjourned date of 7 July 2005. The order will be couched ‘until further order’. These reasons will be transcribed and it is my intention the position be reviewed by the judicial officer before whom the matter is listed next week.
The wife was ordered to forthwith serve the husband with her two applications filed 30 June 2005, her affidavit filed 30 June 2005 and a sealed copy of the order made by Brown J. The further hearing of the wife’s application seeking that the husband be restrained from leaving Australia and the wife’s application seeking enforcement were adjourned to 7 July 2005.
On 7 July 2005 the matter came before Justice Carter. The husband did not appear. Justice Carter ordered that the order made by Justice Brown restraining the husband from leaving the Commonwealth of Australia and placing his name on the Airport Watch List remain in full force and effect and the wife’s two applications were adjourned to 21 July 2005. It was noted in the order that the wife had filed on 4 July 2005 a form 18 [contravention application] and that was returnable on 21 July 2005 also. The husband was ordered to attend personally on the adjourned date.
On 21 July 2005 the matter came before Justice Mushin. The husband appeared in person. The matter was adjourned to 10 August 2005. On 10 August 2005 the matter came before Justice Kay. By then the husband had filed a response and an affidavit in support, both filed 4 August 2005. In his response the husband sought inter alia that he be permitted to travel outside the Commonwealth of Australia for “work employment purposes”. In paragraph 14 of his affidavit he stated:
… I am presently unemployed in Melbourne and seek to be able to travel overseas to seek work opportunities. I have been unable to find suitable work in Melbourne from my arrival in June 2005 for my skills.
On 10 August 2005 Justice Kay ordered the husband to file and serve by 15 August 2005 a financial statement and any affidavit “upon which he seeks to rely in regard to his application to discharge the injunction restraining him from leaving the Commonwealth of Australia in which he deposes to the matters concerning his personal circumstances and the necessity for the removal of the injunction.” The further hearing of all extant applications was adjourned to 17 August 2005.
On 15 August 2005 the husband filed his financial statement and affidavit in support of his response. In paragraph 2 of his affidavit the husband said:
I seek to be permitted to travel overseas to work on a […] development project in Indonesia in order to support myself and my wife. I expect that if the restraining order is not lifted I will lose this work opportunity in Indonesia for which I am being sought. I have been requested for an immediate start in the work project there.
The matter came before Judicial Registrar Ramsden on 17 August 2005. On that date orders were made by consent as follows:
1. That each of the husband and the wife have leave to withdraw all outstanding applications and responses in so far as the same seek interim and interlocutory relief.
2. That the wife have leave to withdraw her form 18 application filed the 4^th July 2005.
The proceedings – final applications only - were otherwise referred to the Trial Notice List on a date to be appointed and advised. The restraint on the husband leaving the Commonwealth of Australia remained in effect.
The wife sought to proceed with her applications for property settlement inter alia that had been adjourned in 2001. At the trial notice listing before Registrar Mestrovic on 2 September 2005 procedural orders were made for the filing of any amended final application and response, the filing of affidavits of evidence in chief and financial statements and the matter was listed for a pre-trial conference on 9 December 2005.
It was in the course of seeking financial information in preparation for the resumed (property) hearing that the wife came into possession of documents showing that sums totalling USD$206,957.80 were held in two accounts in the husband’s name by an overseas bank: see paragraphs 154 to 161 of the January 2008 judgment.
The wife filed an application in a case on 21 November 2005 seeking, amongst other things, to restrain the husband from withdrawing funds from his Standard Chartered account Jersey – the account that she alleged had the balance of USD$206,957.80. On the return date of this application (24 November 2005) the husband did not appear. Justice Dessau made orders until further order restraining the husband from “withdrawing, distributing, charging or in any way disposing or encumbering all monies in account no […] in the husband’s name held at the Standard chartered bank, Jersey in the Channel Islands (the Jersey account) other than by order of this court.” Orders were made for the service of the order upon the husband and the matter was adjourned to 14 December 2005.
The husband did not appear on 14 December 2005 and Justice Bennett made orders which included orders that the husband within seven days of service on him of the orders, sign all documents and do all acts and things as required to transfer all monies in the Jersey account to an interest bearing account in the joint names of the parties to be held on trust by the solicitors for the wife pending further order. The order also provided that the husband provide to the solicitors for the wife “an affidavit of documents that are or have been in his possession, power or control relating to his financial position from July 2000 to the present”.
On 8 February 2006 the wife filed a form 18 application – contravention alleging the husband had failed to sign all documents and do all acts and things as required to transfer all monies in the Jersey account to an interest bearing account in the joint names of the parties to be held on trust by the solicitors for the wife pending further order.
On the return date of the wife’s form 18 (2 March 2006) the husband did not appear. A warrant for the arrest of the husband was issued and the matter was adjourned to 27 March 2006. The husband was brought to the court pursuant to the warrant of arrest on 8 March 2006 and came before Justice Mushin. The warrant of arrest was discharged and the husband undertook to attend the Family Court on 27 March 2006.
On 27 March 2006 the further hearing of all outstanding applications was adjourned to the Interim Hearing List on 16 May 2006 on the undertaking of the husband that he would appear at the Family Court on 16 May 2006.
On 13 April 2006 the wife filed a further application in a case. Her affidavit filed in support on 13 April 2006 explained that there was more than one Jersey account, a second account held the majority of the $206,957.80 and she sought orders covering all accounts held by the husband with Standard Chartered bank. Orders were made by consent on 26 April 2006 before Carter J whereby the husband agreed to:
…transfer within seven (7) days the funds in all and any accounts held in Jersey, Channel Islands to an interest bearing account in the joint names of the husband and the wife such account to be held through the trust Account for the wife’s solicitors Messrs Aitken Walker & Strachan.
Further orders restrained the husband, save for the above order, from withdrawing funds from any account held by him in Jersey including any account held with Standard Chartered Bank and required the husband to file and serve an affidavit setting out details of all his account balances of any accounts in Jersey Channel Islands including accounts with Standard Chartered Bank as at 1 July 2005 and currently and including copies of relevant bank statements and details of all and any accounts to which he has transferred or paid funds from any such bank since 1 July 2005 including names of banks, branches, account numbers and account holders. The wife’s application in a case filed 13 April 2006 was otherwise dismissed.
At the hearing on 16 May 2006 the wife’s application for contravention of orders filed 8 February 2006 [that the husband be dealt with for contravening an order made on 14 December 2005 by Bennett J] came before Justice Brown. Her Honour found, on the husband’s own evidence, that the order was breached in that the husband not only failed to transfer the money to Australia but made or authorised the making of many withdrawals from it. Justice Brown was also not satisfied that the husband had filed and served any document which set out a list of all the documents he had in his possession or control as required by the order of Justice Bennett. The husband was ordered to enter a bond for a period of 12 months upon condition of being of good behaviour and of filing and serving an affidavit providing the information that the previous court order had sought. The wife’s form 18 was otherwise dismissed and the parties were to attend a Trial Notice Listing on 28 July 2006.
On 31 August 2006 the husband filed an application in a case seeking that the order made 30 June 2005 be amended to permit him to travel outside the Commonwealth of Australia for work and family reasons. He sought to be able to travel to “Zealand” from 9 September 2006 and sought costs and damages from the wife as a result of his loss of income and professional work related opportunities. The husband filed an affidavit in support of his application. In the affidavit the husband states he is reasonably required to travel to New Zealand to attend a number of work related meetings for a client commencing September 2006 and on frequent short notice as well as on a regular basis through until August 2007. He also seeks to be permitted to travel to the Middle East with his wife.
The wife, in her response filed 7 September 2006, sought the dismissal of his application and costs and in her affidavit filed 7 September 2006 at paragraphs 27 to 32 she sets out her answers to the husband’s affidavit.
On 7 September 2008 the application was heard and determined by Justice Guest. The husband’s application in a case filed 31 August 2006 was dismissed and he was ordered to pay the wife’s costs fixed in the sum of $4,017. As I mentioned earlier in this judgment it was at this hearing that the husband left the court room before the completion of the proceedings.
At this stage it was known that the final applications for property settlement had been set down for final hearing before me in November 2006. The matter was heard over 9 days to 7 December 2006, resumed briefly in August 2007, further written submissions were filed until 7 November 2007, and I delivered judgment on 18 January 2008. I made final orders for property settlement, orders for child support and otherwise dismissed all extant applications.
As to the restraint on the husband from leaving the country I will set out below the relevant passages from the January 2008 judgment:
The injunction restraining the husband from leaving Australia and earlier injunctions
254.The husband seeks the discharge of this injunction and the wife opposes it.
255.The effect of my orders is that the only amounts payable by the husband to the wife are in the form of child support, including school fees and expenses, both accrued and ongoing.
256.An application by the wife that the husband pay her costs of these proceedings has been foreshadowed, and, if successful, could produce a debt that could found a continuation of the injunction under section 114 of the Act.
257.As set out earlier, however, child support liabilities and the provision of security for future payments by a liable parent who intends to leave the country are dealt with under Part VA of the Child Support Registration and Collection Act 1988, and jurisdiction to make the relevant Departure Prohibition Order is not conferred on this court.
258.There is, in my view, little basis for leaving the existing injunction in place on an indefinite basis. I propose to discharge it in three months’ time, with liberty to apply for an extension of it if, for example an application for a costs order is made and any order remains unpaid. (emphasis added)
259.In that time, a Departure Prohibition Order may be sought by the wife in relation to child support, if payments and security for future payments are not forthcoming from the husband.
Paragraphs 37 and 38 of my orders provided:
37.The injunction restraining the husband from leaving Australia made 30 June 2005 be discharged with effect from 19 April 2008 unless earlier extended by the Court.
38.I reserve liberty to apply on reasonable notice in writing for an order extending the said injunction.

Wife’s application for costs following judgment

The wife made an application for her costs following the delivery of judgment on 18 January 2008. A timetable for the filing of written submissions in support of and in response to the wife’s application for costs was set out in my second orders made 18 January 2008. They provided:
1.I grant leave to the wife to make application for her costs.
2.I direct that written submission in support of that application be filed and served within 21 days.
3.Written submissions by [the husband] in response are to be filed and served within a further 14 days after service of the wife’s submissions.
4.Any submissions that the wife seeks to make in reply to the husband’s submissions be filed and served within seven (7) days of service of the husband’s written submissions.
5.I reserve liberty to either party to apply for an opportunity to address the Court orally in support of their submissions such application to be made within seven (7) days of the filing of the wife’s reply if any and if not, within 14 days of the filing of the husband’s submissions in response.
6.My reasons for judgment, a sealed copy of the orders made this day and referred to in the judgment and a sealed copy of the orders made this day in respect of the wife’s costs application be served upon the husband c/- […] by registered mail.
On 1 February 2008 the solicitor for the wife requested a mention of the matter to clarify the effect of the orders made on 18 January 2008. The matter was listed for mention on Monday 11 February 2008 and both parties were notified of this hearing date. The husband sent emails to the wife and to my associate on 10 February 2008 of a disturbing nature indicating that he would not be attending. Ms Campbell for the wife attended on 11 February 2008 but no order was made.
On 15 February 2008 the solicitor for the wife, by way of letter to my associate copied to the husband, requested a mention of the matter to seek leave to amend paragraph 5 of the substantive orders made on 18 January 2008 “to reflect the reasons for judgment which deal with school fees payable to the end of semester 1, 2007”. The hearing of the wife’s application to amend the order as foreshadowed was set down for 14 March 2008.
On 8 February 2008 the wife filed her costs submissions in accordance with my (second) order made 18 January 2008. The husband did not file any written submissions in response.
On 14 March 2008 Ms Campbell appeared for the wife and there was no appearance for the husband. I was satisfied that the husband was aware of the hearing. The orders sought related to three areas. Firstly, the wife’s oral application to amend paragraph 5 of my orders made 18 January 2008 in relation to arrears of school fees was adjourned for hearing on 20 March 2008. Secondly, the wife’s application for costs of the proceedings was listed to 20 March 2008 for any oral argument and I extended the time for the husband to file a written submission in response to the wife’s written submissions to 4pm on 17 March 2008. The orders also noted that the husband would be at liberty to make oral submissions on costs on 20 March 2008 whether he had filed written submissions or not. If the husband did not make written submissions on costs or oral submissions on costs then the wife may proceed with her application for costs on an undefended basis. Thirdly, I granted leave to the wife to make oral application for an extension of the date for discharge of the injunction restraining the husband from leaving Australia (fixed by my orders of 18 January 2008 to be discharged on 19 April 2008).
I adjourned the hearing of that application to 20 March 2008. I set out the orders made on 14 March 2008 in full:
1.I adjourn to 2.15pm on 20 March 2008 the wife’s oral application for amendment of paragraph 5 of my order made 18 January 2008.
2.By 4.00pm on 17 March 2008 the wife serve by email to [the husband] and copy to my associate a letter setting out the orders she seeks in relation to the arrears of school fees payable under paragraph 5 of my order made 18 January 2008.
3.The wife’s said application in relation to arrears of school fees will be listed for hearing at 2.15pm on 20 March 2008.
4.The wife’s application for costs of the proceedings will also be listed at 2.15pm on 20 March 2008 and I extend to 4.00pm on 17 March 2008 the time for the husband to file a written submission in response to the wife’s written submissions on costs filed 8 February 2008 and will hear any oral argument on costs at the hearing on 20 March 2008, noting that [the husband] will be at liberty to make oral submissions on costs at that hearing whether or not he has filed written submissions.
5.In the event that [the husband] does not:
Amake written submissions on costs in accordance with paragraph 4 of this order; or
B make oral submissions on costs on 20 March 2008
the wife may proceed with her application for costs on an undefended basis.
6.I grant leave to the wife to make oral application this day for an extension of the date for discharge of the injunction restraining the husband from leaving Australia (presently fixed to be discharged on 19 April 2008) noting that the primary basis for the extension sought will be to enable the wife’s application for costs to be determined and provide an opportunity for enforcement of any costs order made.
7.I adjourn the further hearing of the wife’s oral application set out in paragraph 6 of this order to 2.15pm on 20 March 2008.
8.I direct that my associate inform [the husband] of the terms of these orders by email this day.
9.I reserve the wife’s costs of this day noting that [the husband] has not attended and the Court is satisfied that he had notice of today’s hearing.

Child support orders made 18 January 2008

Paragraphs 4 to 6 of the orders made 18 January 2008 dealt with child support and child maintenance. Paragraphs 5 and 6 provide as follows:
5.The arrears of child support and child maintenance pursuant to paragraph 4 of these orders be fixed as school fees of $31,900 as reimbursement of paid school fees for [the child].
6.the husband pay to the wife the arrears of child support and/or maintenance payable under paragraph 5 within 14 days.
On 20 March 2008 Ms Campbell appeared for the wife. There was no appearance by the husband. The husband had not filed any material. I was satisfied he was notified of the hearing by an email sent to his email address on 14 March 2008 which set out in full the full terms of the orders made on 14 March 2008 and a sealed copy of the same order was forwarded on 14 March 2008 by express post to his address for service.
The orders I made on 20 March 2008 dealt with the same three issues that were foreshadowed in the order of 14 March 2008. I set the orders out in full below, but will firstly summarise their effect.

Arrears of child support and child maintenance

Paragraph 5 of the order made 18 January 2008 was amended to reflect a lesser amount of arrears of child support and child maintenance: reduced from $31,900 to $18,733, in circumstances where I was satisfied that the latter figure was the proper amount. Although the husband did not appear, and his consent to the variation was not given, I deemed him to have consented in circumstances where the variation reduced his liability by about $13,000, and he did not appear to oppose the order.

Costs

In paragraph 90 of the January 2008 judgment I set out the wife’s evidence which I accepted – see paragraph 170 – as to her costs. These were $182,664 (paid to time of trial) and $99,000 (unpaid at trial, and costs of trial) a total of about $291,000. Costs orders had already been made by other judges fixed at amounts totalling $$50,987. None of these had been paid.
I ordered the husband to pay the sum of $120,000 towards the wife’s costs of the proceedings such costs to be paid by 4pm on 30 April 2008. I extended the injunction restraining the husband from leaving Australia to 30 June 2008 and reserved liberty to the husband to apply for a discharge of that injunction at an earlier date in the event that he paid the costs order before that date. I also granted liberty to the husband to seek to vary or discharge the orders made on 20 March by making an application by 4pm on 3 April 2008.
The orders made were as follows:
1.Paragraph 5 of my order made 18 January 2008 is amended to read:
The arrears of child support and child maintenance pursuant to paragraph 4 of these orders be fixed for [the child’s] school fees at $18,733 up to and including the end of Semester 1 2007.
2.The husband pay towards the wife’s costs of the proceedings which culminated in the hearing before me and in my judgment of 18 January 2008 the sum of $120,000 the court being satisfied that this represents significantly less than the wife’s costs and disbursements on a party/ party basis and that having regard to the findings in the judgment and the husband’s conduct in relation to the proceedings it is appropriate that he make such a payment towards the wife’s costs.
3.Subject to paragraph 5 of this order the said costs are to be paid by 4.00pm on 30 April 2008.
4.I extend the injunction restraining the husband from leaving Australia to 30 June 2008 and reserve liberty to the husband to apply for the discharge of that injunction at an earlier date in the event that the said costs order is paid before that date.
5.The husband have liberty to apply to vary or discharge the orders made this day provided that he applies in writing such application to be made by no later than 4.00pm on 3 April 2008 by filing an application in a case and an affidavit in support at the Melbourne Registry of this Court and in the event that such an application is filed it is to be given a return date fixed in consultation with my associate and sealed copies of the application and the affidavit in support are to be served forthwith upon the solicitor for the wife.
6.The solicitor for the wife serve a copy of this order upon the husband by posting it to him at […] and by advising him of the terms of the order in an email as soon as practicable.
The costs order was not paid. On 19 June 2008 the wife filed an application in a case. The wife sought:
1.The wife be given leave to serve a sealed copy of this application and her affidavit filed contemporaneously with this application on the husband by email to […].
2.The injunction extended by this Honourable Court on 20 March 2008 restraining the husband from leaving Australia be extended until further order.
3.The husband pay the wife’s costs of and incidental to this application.
The wife filed an affidavit in support on 19 June 2008. In paragraph 4 of her affidavit the wife sought that the matter be listed urgently “as the Family Court injunction expires on 30 June 2008. I am extremely concerned that if the injunction expires [the husband] will be able to leave Australia and I will not receive payment from him”. Paragraph 3 of her affidavit stated that she had not received payment pursuant to the costs order made 20 March 2008. The matter was listed before me on 20 June 2008. There was no appearance by the husband.
The orders made on 20 June 2008 extended the injunction restraining the husband from leaving Australia until 17 July 2008 or until further order and the further hearing of the wife’s application filed 19 June 2008 was adjourned to 16 July 2008. The orders made that day were:
1. The wife serve as soon as practicable a sealed copy of her application filed 19 June 2008 and her affidavit sworn 18 June 2008 and this order on the husband:
a.by post to […]; and
b.by email to […] save for this order the terms of which are to be conveyed in a covering email.
2.The wife provide the Child Support Agency with copies of the said application and affidavit and this order and request the child Support Agency to post the documents to the husband at any address known to them.
3.The injunction extended by this Honourable Court on 20 March 2008 restraining the husband from leaving Australia be extended until 17 July 2008 or until further order.
4.The further hearing of the wife’s application filed 19 June 2008 be adjourned to 16 July 2008 at 10.00am before me.
5.The husband file and serve any responding material upon which he seeks to rely by 9 July 2008.
6.The husband have liberty to apply in relation to these orders on short notice.
7.I reserve the wife’s costs of this day.
On 4 July 2008 an affidavit of service was filed by an employee of the Child Support Agency stating that on 2 July 2008 the order made by me on 20 June 2008, the affidavit of the wife sworn 18 June 2008 and filed 19 June 2008 and her application in a case filed 19 June 2008 were sent by registered post by the Child Support Agency to the husband.
The wife filed a further affidavit in support sworn 14 July 2008. In that affidavit the wife set out information under the headings ‘Child Support’ - the current position of child support and the husband and the husband’s employment – ‘The Husband’s debt to me for legal costs’; ‘The Husband’s time with the children’; and ‘[Ms A] (the husband’s wife). In paragraph 9 of the wife’s affidavit, under the heading ‘The Husband’s debt to me for legal costs’ the wife lists another four orders for costs – giving the sum ordered and the date of the order - that she states the husband still owes in addition to the $120,000 I ordered to be paid on 20 March 2008. She totals the legal costs owed to her at $166,225.27. I will return to this later.
As stated earlier, the wife’s application filed 19 June 2008 was made returnable before me on 16 July 2008, but the hearing date was later adjourned to 6 August 2008. An order was made in chambers to this effect. The order also extended the injunction on the husband until 6 August 2008 or until further order in the following terms:
2.The injunction extended by this Honourable Court on 20 June 2008 restraining the husband from leaving Australia be extended until 6 August 2008 or until further order.
On 6 August 2008 Ms Campbell for the wife appeared at the hearing of the wife’s application filed 19 June 2008 and the husband appeared in person. The husband had notified my associate by email on 3 August 2008 that he could not attend at Court on the morning of 6 August 2008 due to “an urgent requirement” but that he could attend in the afternoon. Accordingly the matter was listed for hearing at 2.15pm. The husband left the court at approximately 2.43pm. I made the following orders:
1.[The husband’s] comments made at the beginning of the hearing and before he left the court in this matter be transcribed and a copy be sent to each of the parties and a copy placed on the court file.
2.Until further order [THE HUSBAND] born […] May 1963 be and is hereby restrained from departing the Commonwealth of Australia until such time as he pays or makes provision and provides security for payment of the order for costs in the sum of $120,000 made by me on 18 January 2008 AND I DIRECT that his name remain upon the Airport Watch List until ordered to be removed by a judge of this Court.
3.The wife’s application filed 19 June 2008 is otherwise dismissed.
A transcript of the proceedings was made. The husband’s answers to many of the questions that I asked him were non-responsive. For example, in response to my question “I’m assuming you are opposing the application that is made today. You haven’t actually filed a response saying that the application should be dismissed but I think I can safely assume you are not here to consent to the continuation of the order. Is that right?” the husband stated “I’ve tried to respond, After eight years, I can’t respond any more.”
I pointed out to the husband that the circumstances in which the order [the injunction] would not be continued would include circumstances where he had some proposal to meet the debt that is currently owed to the wife. I put this to the husband on two occasions.
I asked the husband if he was seeking an opportunity to put any additional evidence before me in this hearing. The husband replied: “I can’t cope, your Honour, is my answer. I cannot cope after eight years.”
Ms Campbell relied on the wife’s affidavit filed in support of her application. She submitted that the continuation of the injunction “is warranted by the fact that the husband is able to comply with the orders for payment of the sum of legal costs to which he was referred. There was evidence at the trial about money that was held in an overseas bank account in Jersey in US dollars. The husband did not give any explanation as to that account: see paragraphs 154 to 164 of the January 2008 judgment. Ms Campbell further submitted that the husband has been working regularly since he has been back in Australia but he has not paid child support regularly, except for the times when the wife has been able to ascertain where he is working. “He’s been paying child support again regularly since, I think February 2008 when my client located his place of employment.”
Ms Campbell agreed, however, that it was the costs order made against the husband and his non payment of it that was relied on in seeking the injunction under the Family Law Act 1975 and not any child support arrears. Ms Campbell submitted, however, that the onus should be shifted to the husband to apply to the court to have the injunction lifted rather than the wife having to incur further costs by having to return to court to seek the extension of the injunction.
I raised with Ms Campbell paragraph 9 of the wife’s affidavit filed 14 July 2008 in which the wife itemises the costs orders made against the husband from 2001 to 2006, none of which have been paid. These were all made prior to the January 2008 judgment. I drew to Ms Campbell’s attention that for the purposes of this application the order for $120,000 is the only costs order on the basis of which I considered that the continuation of the injunction could be considered.. This is because in the January 2008 judgment it is made clear that I made the orders that I made (which included orders giving the wife the whole of the husband’s contribution-based entitlement to the parties’ superannuation interests – an amount that I found was $159,995) on the basis of his non payment of the costs orders that had been made before the trial as well as other factors including the accumulated interest on capital sums that were paid late ($90,190), and other section 75(2) factors: see paragraphs 247 to 250 of the January 2008 judgment. It would not, in my view, be appropriate to found an ongoing restraint as sought by the wife on the basis of unpaid costs orders which have been taken into account in a substantial way in making final property orders. Nor is it, in my view appropriate to discharge those orders in circumstances where very significant undisclosed sums held in overseas accounts were brought to light at trial. In my view if other amounts held by or on behalf of the husband that were not disclosed at trial were later found, the wife could then legitimately seek to enforce those costs orders whether or not she sought to vary or discharge my January 2008 orders on the basis of the husband’s further non-disclosure.

The law

The husband did not challenge the court’s power to make the order sought and I am satisfied that such a power exists under section 114(3) of the Act. Section 114(3) provides:
A court exercising jurisdiction under this Act in proceedings other than proceedings to which sub-section (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

Cases which have acknowledged the availability of the power to make orders of the kind sought in the proceedings before me were identified by the Full Court of this court in Brown v Brown (2007) FLC 93,316, at paragraph 195:
195.The use of s 114(3) to found injunctions restraining freedom of international movement in financial cases has not received direct scrutiny by the Full Court of this Court. However, that the power exists for such restrictions was at least impliedly accepted in the single Judge decisions of Anstis and Anstis and Anor (No 1) (2000) FLC 93-013 and B & B [2003] FamCA 36 and the decisions of the Full Courts in Ejje and Ejje (2003) FLC 93-129 and in Khademollah (2000) FLC 93-050, a case where the High Court rejected an application for special leave on 15 February 2002.
Ms Campbell relied in particular on Khademollah where the trial judge (Brown J), having made orders for property settlement, restrained the husband from leaving Australia until he had complied with them: see paragraph 2 of that judgment of the Full Court, cited above. The husband’s appeal to the Full Court sought to discharge the injunction restraining him from leaving the Commonwealth. The majority (Kay and Holden JJ, with whom Finn J agreed, held, in dismissing the appeal on that point:
The restraining order
170.In challenging her Honour's orders before us, the husband put considerable emphasis on the difficulties which her Honour's order restraining him from leaving Australia placed on him, and also, at least as we understood him, his capacity to meet his obligations under the orders.
171. We see no justification for this Court interfering with her Honour's restraining order, particularly when her Honour has provided a mechanism for the re-listing of the matter before herself.

Conclusion

In the January 2008 judgment I made findings that there were substantial offshore assets that had not been disclosed by the husband and that they were not able to be dealt with by the court because of the husband’s non-disclosure. He had also failed to comply with earlier orders to transfer the funds to Australia: see order of Brown J made 16 May 2006, referred to in paragraph 25, above. The wife’s affidavit makes it clear that she relies on these matters in seeking an ongoing injunction. At the hearing of this application, the husband did not make any proposal to satisfy or secure the outstanding costs debt of $120,000.
The injunction restraining the husband from leaving Australia was first made in June 2005 by Brown J. It was continued by other judges who dismissed the husband’s applications to discharge the order. At trial, I extended it for a limited time only to allow for the hearing and determination of the wife’s application for costs. In the event, that application was undefended, and I was satisfied that it was appropriate to make the order sought. Thereafter the injunction was extended to allow the husband time to comply with the costs order, but he has not done so. I am now asked by the wife to continue this injunction until further order, and shift the onus to the husband in relation to the injunction: that is, to put him in the position where he has to satisfy that court that the injunction should be dissolved rather than the wife having to seek its extension.
It is undoubtedly a more serious step to limit a person’s freedom of movement on an ongoing basis after final orders have been made in the substantive proceedings between the parties, such as my orders made on 18 January 2008. Before such a hearing is determined by judgment, there may be strong arguments for an interlocutory injunction to ensure that the proceedings are not thwarted in some way. An ongoing injunction of this kind should be granted after final orders, in limited circumstances only.
As set out earlier in this judgment, section 114(3) empowers the court “ …to grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.”
I have referred earlier to cases where this power has been engaged in circumstances similar to the present case, and I confirm my view that there is jurisdiction to make the order sought.
The injunction sought here is manifestly in aid of the enforcement of a decree: It matters not, in my view, that there are no other proceedings on foot for the enforcement of that decree. The section does not confine the power to being available in aid of proceedings for the enforcement of a decree, nor should it be construed as if it did, in my view. The wife, after all, has already obtained an order for the transfer of the money to Australia, which the husband has ignored. This order was made before the final hearing, and could not be seen as an order for the enforcement of the costs order. It is difficult, however to see what more the wife could do to enforce her costs order in the circumstances.
The husband has identified personal difficulties that the existing injunction imposes on him, in particular, his inability to seek employment overseas (which I found was much more remunerative for him in the past than employment in Australia), inability to go with his wife to visit her family in the Middle East, and serious distress, both to himself and to members of his family. Whilst I accept that these may indeed be real difficulties for him, they are, in my view, very much of his own creation, for reasons that I have outlined above: His non-disclosure of very significant amounts of money held in his name overseas and his failure to comply with orders for the transfer of those funds to Australia.
Not to make the order sought by the wife would be tantamount to condoning the husband’s actions. It would allow him to go overseas and earn a higher income than he can earn in Australia, without requiring him to put any mechanism in place to ensure that he satisfies that debt, whether from those earnings or otherwise. I am therefore satisfied that whilst it may be acutely inconvenient for the husband to restrain him on an ongoing basis, it would, in my view, work a significant injustice on the wife if he were permitted to avoid his responsibilities under the order for costs in this way. The inconvenience to the husband is outweighed, in my view by considerations of justice, and these weigh heavily in favour of granting the order sought.

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate:

Date: 24 November 2008

[2008] FamCA 1003

6 August 2008