CHOPRA & CHOPRA

[2016] FamCA 967

FAMILY COURT OF AUSTRALIA

CHOPRA & CHOPRA [2016] FamCA 967

FAMILY LAW – HEARING DE NOVO – Application by the husband to review decisions of a Registrar – where the husband sought to review a decision of a Registrar refusing to abridge his application – no utility in the application – application to review dismissed – where the husband sought to review a decision of a Registrar that the parties attend appointments with a family consultant pursuant to s 11F – where both parties seek interim parenting orders – where the children are aged almost 18 and almost 15 – where the only evidence before the court of the children’s views is the wife’s affidavit material – where the court would be assisted by independent evidence in assessing any interim parenting applications – application to review dismissed

FAMILY LAW – INJUNCTIONS – Application by the wife that the husband repay moneys withdrawn from a joint loan account and be restrained from further drawing down on the joint account or from disposing of the withdrawn moneys – where the husband concedes he withdrew a sum from the parties’ joint loan account representing approximately half of the parties’ assets – where the husband has failed to disclose to the wife how that sum has been applied – where the court is satisfied that the injunctions are necessary and the risk of disposal of property to defeat a judgment is evident – injunctions made as sought by the wife

Family Law Act 1975 (Cth)

Waugh & Waugh [2000] FamCA 1183

APPLICANT: Mr Chopra

RESPONDENT: Ms Chopra

FILE NUMBER: MLC 5574 of 2016

DATE DELIVERED: 11 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 5 October 2016

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Crozier-Durham

SOLICITOR FOR THE RESPONDENT: Mason Black Lawyers

Orders

1. That the husband’s Applications in a Case filed 22 July 2016 and 26 September 2016 be otherwise dismissed.

2. That the husband forthwith repay the sum of $1,140,000 (the withdrawn sum) together with any interest accrued thereon into the joint loan account of the parties held with the Commonwealth Bank of Australia account number … (“the Joint Loan Account”).

3. That in the event that the husband does not repay the whole of the withdrawn sum pursuant to Order 2 hereof, on or before 19 October 2016 the husband file and serve on the wife’s solicitors an affidavit which provides details of the use and expenditure by the husband of the withdrawn sum (including but not limited to):-

   (a)The bank or financial institution into which the withdrawn sum was paid;

   (b)The manner in which any part of the withdrawn sum was expended; and

   (c)Where the balance if any of the withdrawn sum is now held.

4. That until further order the husband by himself, his servants and agents be restrained from:-

   (a)Further encumbering any real estate or other assets owned by him, the wife or the husband and wife jointly;

   (b)Drawing down or withdrawing any further sums of money from the Joint Loan Account of the husband and the wife, or any other account with any bank or other financial institution in his name or the names of the wife or the husband and the wife jointly, save for his everyday living expenses and the payment of any sums required for mortgage repayments; and

   (c)Drawing down or disposing of the withdrawn sum.

BY CONSENT IT IS ORDERED:-  

1. That until further order the wife be and is hereby restrained from drawing down or withdrawing any further sums of money from the Joint Loan Account of the husband and the wife, or any other account with any bank or other financial institution in her name or the names of the husband or the husband and the wife jointly, save for her everyday living expenses and the payment of any sums required for mortgage repayments.

IT IS ORDERED:-

1. That the husband forthwith authorise and provide written authority to Mr B (accountant) to provide to the wife:-

   (a)Any details of and all documents he may have in relation to the withdrawn sum and the use of the withdrawn sum;

   (b)Any details and documents he may have in respect of any monies loaned by the husband to him or other family members; and

   (c)Copies of the applicant’s taxation returns for the last five years and particulars of any of the husband’s shareholdings.

2. That on or before 19 October 2016 the husband provide to the wife’s solicitors a copy of the B Family Trust Deed together with documents detailing any and all distributions made from the said trust to him within the last five years.

3. That the husband comply with Order 5 of the orders made on 13 September 2016.

4. That the wife have leave to issue a subpoena to produce documents to the husband’s brother Mr B.

5. That the wife’s costs of this day be fixed in the sum of $3,700 and reserved.

6. That the interim orders sought in the husband’s Amended Application in a Case filed 7 September 2016 be otherwise adjourned to the Conciliation Conference on 15 December 2016 and in the event that the proceedings do not resolve at that conference, directions then be made for the listing of the outstanding interim parenting applications and financial applications in the Senior Registrar’s list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chopra & Chopra 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 MELBOURNE

FILE NUMBER: MLC 5574  of 2016

Mr Chopra

Applicant

And

Ms Chopra

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter came before me in a Judicial Duty List.  The husband had three separate applications seeking interim relief listed that day.  Also listed before me was the wife’s Amended Response to Initiating Application filed 29 September 2016 in which she too sought interim orders. 

2. The issues raised in the parties’ interim applications included:-

   ·the husband’s applications to review decisions made by a Registrar;

   ·the husband’s application for interim financial orders, including spousal maintenance;  

   ·the applications of both parties seeking interim parenting orders; and

   ·the wife’s application for injunctive relief. 

3. At the conclusion of the hearing I made interim orders, including injunctions.  Due to pressures in the list, I reserved my Reasons for Judgment with respect to those orders.  These are those Reasons for Judgment.

Background

1. The husband is aged 55 years.  In his affidavit material he deposes that his usual occupation is “domestic duties”.  He deposes that he has a Bachelor degree and a Graduate Diploma but has not been employed since his retrenchment in 2005.  The husband alleges that since that time he has been engaged in the primary care of the children of the marriage. 

2. The wife is aged 49 years.  She is employed as a health professional.

3. The parties married in 1997.  Separation occurred on 7 August 2015, the wife having obtained an interim intervention order in the Magistrates’ Court of Victoria on 6 August 2015. 

4. There are two children of the marriage, namely C, aged 17½ and D, aged 14½.  C is in Year 12 and D is in Year 8.  They attend the same secondary school.

5. The proceedings were commenced by the husband upon the filing of his Initiating Application on 20 June 2016.  That application sought both interim and final relief with respect to property and parenting matters.  That application was listed for a Case Assessment Conference on 13 September 2016. 

6. At the time of filing his Initiating Application, the husband sought an order that “the matter be heard urgently”.  The Registrar refused the husband’s application to list the matter on an urgent basis.

7. On 22 July 2016, the husband filed an Application in a Case seeking a review of the decision of the Registrar to refuse the husband’s application to abridge times for the hearing of his Initiating Application (“the First Application”). 

8. The First Application was listed before the Court in a Judicial Duty List on 3 August 2016.  That day, the matter came before Thornton J, who made orders that:-

   1.Within 7 days, the applicant is to serve upon the respondent the Application in a Case and supporting affidavit filed 22 July 2016.

   2.The matter be adjourned to the judicial duty list on 5 October 2016 at 10.00 am.

9. On 7 September 2016 the husband filed an Amended Application in a Case (“the Second Application”) seeking interim orders with respect to:-

   ·spousal maintenance;

   ·the stay of a child support assessment;

   ·parenting matters;

   ·the return of chattels;

   ·the removal of caveats lodged by the wife in relation to the real properties registered in the husband’s name; and

   ·the maintenance of the property occupied by the wife and the children.

10. On 13 September 2016 Registrar Rose conducted a Case Assessment Conference.  That day, the husband appeared in person and the wife was represented by Counsel.  The Registrar made orders that:-

    ·All extant applications be listed in the Judicial Duty List on 5 October 2016 at 10.00 am.

    ·Pursuant to s 11F of the Family Law Act1975 (Cth) (“the Act”) the parties attend appointments with a Family Consultant on 1 December 2016.

    ·The parties must attend any future meetings as directed by the Family Consultant, including the Child and Family Meeting and are requested to ensure that the children attend all appointments as instructed by the Family Consultant.

    ·Leave is granted to the Family Consultant to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

    ·No later than 4 October 2016 each party exchange documents, including:-

    (a)Tax returns of each party for the last five years;

    (b)Details of rental in respect of E Street, Suburb F and G Street, Suburb F from 20 June 2014 to date;

    (c)Details of all liabilities alleged by the husband; and

    (d)Details of bank or financial institutions into which the $1,140,000 was deposited or in the alternative how it was expended or used and where (if any) the balance is held.

    ·The exchange of appraisals with respect to the real properties and share portfolios held.

    ·If there is not agreement as to the value of assets upon the exchange of market appraisals, the parties jointly obtain at least 28 days prior to the Conciliation Conference an opinion as to the value of the real properties, the cost of such valuation to be paid in equal shares.

    ·The matter be listed for a Conciliation Conference on 15 December 2016.

11. Following that Case Assessment Conference, on 26 September 2016 the husband filed a further Application in a Case (“the Third Application”).  The Third Application sought a review of the Registrar’s orders made 13 September 2016 that the matter be referred to the Child Responsive Program.  The husband also sought an order that the substantive proceedings be listed for final hearing.

12. All of the husband’s interim applications filed as referred to above were listed before me in the Judicial Duty List. 

13. In addition to those applications, the wife sought interim orders in her Amended Response to Initiating Application filed 29 September 2016. The wife sought interim orders with respect to parenting and financial matters although the parenting issues were not sought to be agitated by her at the hearing before me in circumstances where a referral has been made for the parties to undertake a report and assessment pursuant to s 11F of the Act. The only parts of the interim application of the wife pressed at the hearing before me were:-

    ·That the husband repay the sum of $1,140,000 plus any interest and costs into the joint loan account held by the parties with the Commonwealth Bank.

    ·That within 14 days the husband provide to the wife particulars as to how he has applied the withdrawn sum such particulars to include but not be limited to:-

    oThe bank or financial institution to which the withdrawn funds were paid;

    oThe manner if any in which any part of the withdrawn funds were expended;

    oWhere the balance if any of the withdrawn funds are now held.

    ·That the husband by himself, his servants and agents be restrained from:-

    oEncumbering any real estate or other assets owned by him personally or by the husband and wife jointly;

    oDrawing down or withdrawing any further sums of money from the joint loan account of the husband and the wife with the Commonwealth Bank of Australia or any other account with any other bank or financial institution in his name or the names of the husband and the wife jointly, save for his everyday living expenses and the payment of any sums required for mortgages.

    ·That the husband authorise his brother, Mr B to provide details and documents in relation to any and all funds held or used by him in relation to the withdrawn sum, details or documents held by him in relation to purported loans to family members and copies and details of the husband’s taxation returns and shareholdings.

    ·That the husband provide to the wife a copy of the B Family Trust Deed together with a copy of any and all distributions made by the Trust to him within the last five years.

The Hearing

1. The husband represented himself at the hearing.  At the commencement of the hearing I informed the husband as to the manner in which the proceedings would be conducted; that as applicant in the proceedings he would be required to make submissions in support of his applications, that counsel for the wife would then have an opportunity to respond to those submissions, and that the husband would then have a right of reply.  I also informed the husband that the matter would proceed “on the papers” and that his submissions should be directed towards the facts or matters (as set out in his affidavits) and the law upon which he relied and which supported the orders he seeks.

2. The parties relied upon the affidavit material filed.  The evidence was not tested and the matter proceeded by way of submissions.  Accordingly, I am unable to make findings of fact insofar as there are factual disputes between the parties’ respective evidence.

Material Relied Upon

1. The husband relied upon the following material:-

   ·Application in a Case filed 22 July 2016;

   ·Amended Application in a Case filed 7 September 2016;

   ·Application in a Case filed 26 September 2016;

   ·His Affidavit filed 20 June 2016;

   ·His Affidavit filed 7 September 2016;

   ·His Financial Statement filed 20 June 2016.

2. The wife relied upon the following material:

   ·Amended Response to Initiating Application filed 29 September 2016;

   ·Her Affidavit filed 5 September 2016;

   ·Her Affidavit filed 29 September 2016;

   ·Her Financial Statement filed 5 September 2016.

Applications to Review Registrar’s Decision

1. The husband’s First Application sought a review of the Registrar’s decision refusing to abridge time to list his Initiating Application filed 20 June 2016.  During discussion with the husband it was clear that he sought to agitate that issue. 

2. I invited the husband to consider his position with respect to that matter given that he had other substantive interim applications which he sought to argue sitting behind the application to review the Registrar’s decision.  I informed the husband that in circumstances where his substantive interim applications were before the Court, events had largely overtaken his application to review that decision.

3. Although the husband appeared to concede the point, he continued to complain of the Registrar’s decision during the course of his submissions. 

4. In circumstances where the substantive interim issues identified in both the interim orders sought in his Initiating Application and in his Amended Application in a Case filed 7 September 2016 were considered by me during the course of the hearing, in my view there is little utility in reviewing the original decision of the Registrar refusing the application to abridge times with respect to those interim applications.  In the circumstances, I made orders dismissing that application.

5. In the Third Application, the husband sought to review the orders of Registrar Rose made 13 September 2016. In particular, the husband sought a review of the Registrar’s decision to make orders pursuant to s 11F of the Act, directing the parties to attend an appointment with a Family Consultant for an intake meeting. That issue proceeded before me by way of hearing de novo.

6. The children who are the subject of the parties’ competing parenting applications are aged 17½ and 14½.  The parties’ eldest child, C is in Year 12 and was due to commence her final exams within weeks of the interim hearing.

7. It is common ground between the parties that the children have lived with the wife since the parties’ separation in August 2015.  Further, it is common ground between the parties that save for limited special days, the children have spent no time with the husband since the separation. 

8. In his Second Application the husband seeks interim parenting orders as follows:-

   ·that the husband should take the children to school and bring them home if the wife is unable to do so;

   ·that each party inform the other of any serious illness, injury or accident suffered by the children whilst in their care and forthwith up receipt provide the other party with copies of any medical certificates and reports;

   ·that the wife authorise the principals of the school at which the children attend to release copies of the school report directly to the husband;

   ·that both parties be at liberty to attend the children’s school and liaise with the children’s school and their teachers.

9. The wife also seeks interim parenting orders in her Amended Response to Initiating Application filed 29 September 2016. The orders sought by her include:-

   ·that the parties have equal shared parental responsibility;

   ·that the children live with the wife;

   ·that the children spend time with the husband as agreed;

   ·that the husband communicate with the children at any reasonable time by telephone.

10. The wife also seeks orders for the preparation of a family report as well as orders requiring the parties to exchange information and notify the other with respect to significant issues affecting the children.

11. The husband in his Affidavit filed 20 June 2016 provides a detailed history of the parties’ relationship since prior to the marriage. As to the circumstances since separation the husband deposes at paragraph 58 as follows:-

    There is no arrangement in place. I am denied access to my children. In the 10 months of being away from home, I have spent time with my children only on father’s day, Christmas day last year and New Year’s day for few hours

12. At paragraph 59 of that Affidavit the husband confirms that currently he has no interaction with the children at all.

13. The wife’s evidence as to the current parenting arrangements is set out at paragraph 9 of her Affidavit filed 5 September 2016. She deposes that “[b]oth the girls have made it clear to me that they do not wish to spend overnight time with the [husband]. C is currently completing year 12 which is an extremely stressful year and the [husband] should take this into consideration”.

14. In that Affidavit, the wife alleges a history of family violence, which is denied by the husband. The wife proposes that there be a family report to ascertain the wishes of the children, having regard to their ages and maturity. She confirms in that Affidavit that she will facilitate time between the children and the husband in accordance with the children’s wishes.

1. In determining the parties’ competing interim applications, I must have regard to the best interests of the children. The determination of what is in the children’s best interests requires that I consider the provisions of s 60CC of the Act.

2. Section 60CC(3)(a) of the Act requires that I must have regard to any view expressed by the children and any factors that the Court thinks are relevant to the weight that should attach to those expressed views.

3. As the evidence currently stands, I am left with the evidence of the wife who maintains that the children do not wish to spend time with the husband.

4. Pursuant to the orders made by the Registrar, the parties have an appointment with a Family Consultant on 1 December 2016. That process will likely provide the parties with an opportunity to discuss the issues with a family consultant. Further that family consultant will likely meet with the children and discuss any views they may have with respect to the issues before the Court. The report of that family consultant will likely illuminate the Court as to any views expressed by the children.

5. In the absence of any independent evidence as to those views, I am satisfied that orders that the parties engage in the Child Responsive Program are an appropriate course. This is particularly so having regard to the ages of the children and in circumstances where the parties’ eldest child is undertaking her final year 12 exams. I am satisfied that there should be no disruption to existing arrangements at this crucial time in her school life.

6. Accordingly, I am satisfied that the husband’s application to review the Registrar’s decision ordering the parties to engage in the Child Responsive Program should be dismissed.

7. The balance of the orders sought by the husband in the Third Application are complaints rather than orders sought by him. The orders sought by him are as follows:-

   …

   2. Registrar ignoring all of my concerns raised at the case Conference – therefore seeking Review.

   3. The Registrar, unable to provide me with the copy on 13/09/2016. It was received on 19/09/2016 in the Mail.

   4. Full Orders will be provided after discussions with case coordinator

   …

   6. I was seeking Judicial Hearing in the Matter.

   7. Seeking order for the matter to go to trial.

   8. Seeking order for Case Management.

8. The matters raised in paragraphs 2 to 8 in the Third Application (with paragraph 5 of those orders having been deleted by the husband) highlight the husband’s lack of understanding of court process rather than orders properly sought from the Court.

9. I informed the husband that whilst interim applications remained on foot, his application for final orders would not be placed in the list of cases awaiting allocation to a judicial docket.

10. The husband does not clearly articulate what concerns raised by him were ignored by the Registrar. Further, whilst the husband complains that he did not receive a copy of the orders made on 13 September 2016 until 19 September 2016, on the face of it, that complaint is unreasonable and is not a matter properly the subject of orders in any application for review of the Registrar’s decision. Having regard to all of those circumstances, I dismissed the husband’s Third Application.

Interim Orders for Financial Support

1. The husband in his Second Application seeks orders for interim financial support, including that the wife pay outgoings on properties held by the parties, and periodic spousal maintenance in the sum of $300 per week. Further, the husband seeks orders for a stay of the current assessment of child support. Those applications are opposed by the wife. Prior to the commencement of the hearing, I stood the matter down to read the material relied upon by the parties.

2. Upon reading that material, at the commencement of the hearing I expressed concerns to the husband as to the merits in proceeding with his interim financial applications having regard to the paucity of evidence placed before the Court by him. This was particularly so in circumstances where the wife alleges, and the husband concedes, that he unilaterally withdrew the sum of $1,140,000 from a joint account of the parties on 7 August 2015, being either the day of the parties’ separation or shortly prior to the separation. The husband does not address that issue in any part of the affidavit material filed by him and provides no explanation as to how those funds have been applied.

3. Upon considering his position, the husband elected not to proceed with his interim financial applications before me. Accordingly, I made orders adjourning that application to the Conciliation Conference listed on 15 December 2016. In the event that the parties are unable to resolve their competing applications for final property orders at that conference the husband can seek to have his application for interim financial relief listed before the Senior Registrar at a later date.

Injunctions Sought By The Wife

1. The only parts of the wife’s interim applications pressed before me related to the withdrawal by the husband of the sum of $1,140,000 from the parties’ joint loan account. That withdrawal occurred on 7 August 2015. The wife sought orders that the husband be required to repay the monies withdrawn by him to that loan account and further that he provide disclosure with respect to his withdrawal of the funds and application of them. The wife also sought orders restraining the husband from further dealing with the loan account, as well as orders for disclosure.

2. As noted earlier, the husband concedes that he withdrew the sums alleged.

3. In her Affidavit filed 29 September 2016 in support of her application for interim orders, the wife deposes at paragraph 16 as follows:-

   …

   In relation to the $1,140,000.00 I believe that this money maybe in the care of [the husband’s] brother and accountant [Mr B]. When Orders were made by the Registrar at the conclusion of the Case Assessment Conference, [the husband] declined to provide my solicitors with an authority to seek written and verbal information in relation to these monies from [Mr B] or consent to an order that he do so.

4. The complaint made by the wife is that the husband withdrew the moneys without her knowledge or consent at or about the time of the parties’ separation. Further, the wife complains that the husband has made no disclosure as to how he has applied those funds.

5. It is against that backdrop that she seeks that the funds be repaid to the loan account until further order.

6. During discussion with the husband he conceded that he had withdrawn the funds as alleged. Further, the husband confirmed that he had paid those funds into an account held by his brother, Mr B. He also conceded that he had not produced bank statements evidencing his application of those funds. The husband also stated that part of those funds had been applied to repay loans alleged to be payable to members of his family.

7. The matter was adjourned for lunch. Prior to the adjournment I invited the husband to attend his bank to obtain bank statements to evidence how he has applied the funds withdrawn by him. After the luncheon adjournment, the husband tendered to the Court copies of statements evidencing his withdrawal of the sum of $1,140,000 (Exhibit H3) and the deposit of those funds into his Smart Access Account (Exhibit H2). The Smart Access Account Statements disclose that on 10 August 2015 the husband withdrew the sum of $1,100,000 from that account. The husband has produced no statements to the Court evidencing how that sum has been applied by him.

8. Section 114 of the Act provides an injunctive power which enables the Court to make such orders as it considers proper for the protection of property. The wife seeks orders for the repayment of monies withdrawn by the husband so as to protect those funds pending a final determination of the parties’ competing property applications.

9. The Full Court considered the circumstances where injunctions should be made in the decision of Waugh & Waugh [2000] FamCA 1183. There the Full Court held that in order to impose an injunction on a party, the Court must be satisfied that such injunction was necessary and that the risk of disposal of property in order to defeat a judgment is evident.

10. Having regard to the husband’s unilateral actions in withdrawing the funds without the wife’s knowledge or consent and his failure to disclose to the wife and the Court how he has applied those funds since their withdrawal, I am satisfied that it is appropriate for orders to be made for the repayment of those funds to the parties’ joint account.

11. The sums withdrawn by the husband from the parties’ joint account are substantial. The Financial Statements filed by the parties disclose that their legal and equitable interests comprise of the former matrimonial home in which the wife and children reside and two investment properties. In addition there is a modest share portfolio and accumulated superannuation entitlements.

12. In his Financial Statement filed 20 June 2016 the husband estimates the parties’ net assets to be approximately $2.5 million. For her part, the wife in her Affidavit filed 5 September 2016 estimates the parties’ net assets to be valued at approximately $2,042,000. Hence on any view the sums withdrawn and retained by the husband represent a significant proportion of the parties’ pool of assets available for division. Accordingly, I am satisfied that the orders sought by the wife that the husband repay the monies withdrawn by him to the parties’ joint account and that he be restrained from further dealing with those funds pending a final determination of the matter are appropriate.

13. Further, I am satisfied that it is appropriate in all of the circumstances that the husband file and serve an affidavit providing an explanation as to how the funds withdrawn by him have been applied.

14. During the course of his submissions the husband conceded that he had paid the sum of $1,100,000 into an account controlled by his brother. The husband is a beneficiary of a trust controlled by his brother. Accordingly, the wife sought orders that the husband authorise his brother to disclose documents related to his dealings with the monies paid to him by the husband and further that the husband’s brother provide a copy of the trust deed and documents detailing distributions made by that trust to the husband in the last five years. Given the concessions made by the husband with respect to the payment of sums by him to his brother and as to his position as beneficiary of his brother’s trust, I am satisfied that orders in those terms are appropriate.

15. Otherwise, I have adjourned the balance of the wife’s application to the Conciliation Conference. Again in the event that the matter does not resolve at that conference, the parties will be at liberty to seek to have the remaining parts of their interim applications relisted for hearing.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 November 2016.

Associate:

Date: