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FAMILY LAW – INJUNCTIONS – Application by the wife that the husband repay moneys withdrawn from a joint loan account and be restrained from further drawing down on the joint account or from disposing of the withdrawn moneys – where the husband concedes he withdrew a sum from the parties’ joint loan account representing approximately half of the parties’ assets – where the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

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

That the husband’s Applications in a Case filed 22 July 2016 and 26 September 2016 be otherwise dismissed.
That the husband forthwith repay the sum of $1,140,000 (the withdrawn sum) together with any interest accrued thereon into the joint loan account of the parties held with the Commonwealth Bank of Australia account number … (“the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”).
That in the event that the husband does not repay the whole of the withdrawn sum pursuant to Order 2 hereof, on or before 19 October 2016 the husband file and serve on the wife’s solicitors an affidavit which provides details of the use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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: CHOPRA & CHOPRA [2016] FamCA 967
Case: [2016] FamCA 967
Decision Date: 11 November 2016

CaseChat Overview and Summary

In the Family Court of Australia, Johns J considered applications by both the husband and the wife. The husband sought to review two decisions of a Registrar: one refusing to abridge his application, and another ordering the parties to attend appointments with a family consultant concerning interim parenting orders for their children, who were nearing the age of majority. The wife sought injunctions restraining the husband from further drawing on a joint loan account and from disposing of moneys he had already withdrawn, which represented approximately half of the parties' assets.

The court was required to determine whether the husband's applications to review the Registrar's decisions had any utility, particularly in light of the limited evidence before the court regarding the children's views on parenting arrangements. Additionally, the court had to assess whether the injunctions sought by the wife were necessary to prevent the dissipation of assets and to preserve the marital estate pending final resolution.

Johns J dismissed the husband's applications to review the Registrar's decisions, finding no utility in reviewing the refusal to abridge his application and noting that independent evidence would assist in assessing the interim parenting applications, thus upholding the Registrar's direction for family consultant appointments. Regarding the wife's application, the court found that the husband had conceded withdrawing a significant sum from the joint loan account and had failed to disclose its application. Satisfied that the injunctions were necessary and that there was a clear risk of property disposal to defeat a judgment, the court made orders as sought by the wife.

The court ordered the husband to repay the withdrawn sum of $1,140,000 into the joint loan account, with provisions for disclosure of the sum's use if repayment was not made by a specified date. The husband was also restrained from further encumbering assets, drawing from the joint loan account or other accounts, or disposing of the withdrawn sum, save for specified living expenses and mortgage repayments. By consent, the wife was similarly restrained from drawing from joint accounts, except for living expenses and mortgage repayments. Further orders required the husband to provide his accountant with authority to release documents relating to the withdrawn sum and his financial affairs, and to disclose trust deed details and distributions. The wife was granted leave to issue a subpoena to the husband's brother. The wife's costs were fixed and reserved, and outstanding interim parenting applications were adjourned.

Orders

Orders of the court

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

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”).

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

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

BY CONSENT IT IS ORDERED:-

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:-

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.

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.

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

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

10.

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

11.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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