Cole and Cole

[2016] FamCA 398

FAMILY COURT OF AUSTRALIA

COLE & COLE [2016] FamCA 398

FAMILY LAW – INJUNCTION – INTERIM ORDERS – Application by the wife to restrain the husband from leaving the jurisdiction or from disposing with shares – where the purpose of the husband’s travel is not business related – where an undertaking is offered by the wife to meet any loss sustained by the husband due to a delay in his travel arrangements – orders made restraining the husband from leaving the jurisdiction or from disposing of shares for a limited period

Family Law Act 1975 (Cth)

Anstis & Anstis& Anor (2000) FLC 93-013; [1999] FamCA 841

APPLICANT: Ms Cole

RESPONDENT: Mr Cole

FILE NUMBER: MLC 3073 of 2016

DATE DELIVERED: 11 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 11 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Humphries

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT: No appearance

Orders

1. That all necessary times be abridged to facilitate the urgent hearing of the wife’s application for interim orders including injunctions, on an ex-parte basis on Monday 11 April 2016.

2. That until further order the husband Mr Cole born … 1964 be and is hereby restrained from departing the Commonwealth of Australia AND THE COURT REQUESTS that the Australian Federal Police give effect to this order by placing the name of the said Mr Cole on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the name of Mr Cole on the Watch List until the Court orders his removal.

3. That until further order the husband by himself his servants and agents, whether personally or as a director or shareholder of a company or as a trustee of a trust or in any other capacity be restrained from taking any step or steps whatsoever to sell, transfer, dispose of, encumber or further encumber or otherwise deal with:

   a.Any share or shares held in B Pty Ltd (ACN …) whether directly or indirectly by the husband and/or by Company C (org no ….) and or by any other person, company or trust whatsoever;

   b.All proceeds from the sale or disposition of shares whether to B Pty Ltd or any other person, entity or trust, including as a result of any buy-back by B Pty Ltd; and

   c.The proceeds from the sale of the motor vehicle (registration no …); and

   d.All other assets in his power, possession or control.

4. That as soon as practicable the wife do all acts and things as may be required to serve copies of these orders, her application filed 11 April 2016, her affidavit and financial statement filed 11 April 2016 and the affidavit of Ms D filed 11 April 2016 upon:-

   a.The husband personally;

   b.Mr F of G Lawyers together with a request that he bring to the husband’s attention the documents served;

   c.B Pty Ltd.

5. That all extant applications be adjourned for further hearing before me at 10.00am on Wednesday 13 April 2016.

6. That the ex tempore reasons for judgment be transcribed and placed upon the Court file with copies to be made available to each of the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cole & Cole 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 3073 of 2016

Ms Cole

Applicant

And

Mr Cole

Respondent

REASONS FOR JUDGMENT

1. I have before me this afternoon an application made on behalf of the wife, Ms Cole, seeking orders restraining the husband from leaving the Commonwealth of Australia and further orders injuncting him from dealing with assets of the parties.  That application was filed today.  It is an application that is supported by an affidavit of the wife affirmed this day, an affidavit of Ms D sworn and filed this day, and a financial statement of the wife affirmed and filed this day.

2. It is an application that is made on an ex parte basis.  The wife’s solicitor, Ms Humphries, appears on her behalf today.  There is no appearance by the husband.  He is not aware of the application made today. 

3. The principal issue for determination by me today is the question of whether or not I should restrain the husband on an interim basis from departing from the Commonwealth of Australia and, further, whether I should restrain him from dealing with the parties’ assets pending an adjourned hearing.

4. These are my ex tempore reasons for judgment in relation to those issues. 

5. The background to the application is as follows.  The wife is aged 48 years.  She is an American citizen who has permanent residency in Australia. She is engaged in part-time employment and has an income of approximately $47,000 per annum.  She lives in rental accommodation in East Hawthorn with the two children of the marriage.

6. The husband is aged 51 years.  He is also an American citizen and has permanent residency in Australia.  Until recently, he was engaged in employment as the chairman and CEO of an entity known as B Pty Ltd and had an income of approximately $250,000 per annum.  The husband has been living in rental accommodation at the former matrimonial home in Suburb E.  The lease on that premises is due to end shortly.  The husband has informed the children of the marriage that he proposes to leave Australia on 12 April 2016 and will be overseas indefinitely.  He proposes to travel tomorrow.

7. The parties commenced cohabitation in 1995.  They married in 1996 in the United States.  They lived in the United States until late 2012.  They relocated to Australia at that time.  The wife has not re-partnered.  The husband has formed a relationship with a woman who is named in the wife’s affidavit and who currently lives in Europe.  The wife deposes that it is her understanding that the husband proposes to travel to Europe to spend time with his new partner in Europe after travelling to visit the United States of America.

8. Since the parties’ separation, they have been engaged in a process of negotiation with the assistance of collaborative lawyers.  They were in negotiation as recently as last week.  Those negotiations have broken down.  The wife has engaged other lawyers to commence proceedings on her behalf in this Court. 

9. The application is brought by the wife in circumstances where it is alleged that the husband has taken steps to relocate or to return to live permanently in America and to leave this jurisdiction.  He is not an Australian citizen.  He has arranged for a shipping container to be placed at his residence, it being the wife’s understanding that he is arranging to ship his belongings to the United States.  He has placed his motor vehicle on the market for sale. 

10. The wife relies upon the affidavit of Ms D.  Ms D deposes in her affidavit that she attended upon the husband for the purposes of test driving his motor vehicle.  During that meeting, she was informed by the husband that he was travelling to the United States.  Ms D noted the large shipping container in the driveway of the husband’s property.  Further, Ms D deposes at paragraph 5 of her affidavit that, during discussion with the husband, the husband stated that he was going through what he described as “a messy breakup”, that he was desirous of returning to the United States to live.  He also indicated to Mr D that he had recently sold his company and that was why he was moving. 

11. The wife in her affidavit deposes as to her concerns that the husband has disposed, or is about to dispose of, shares held on his behalf in an entity known as B Pty Ltd.  The shares in that entity are held on the husband’s behalf by a company based in the United States of America.  The wife deposes as to recent changes or developments in the operation of B Pty Ltd.  Previously, the husband was a chairman and CEO of that entity.  His position was terminated on 11 March 2016. 

12. Searches of the ASIC register indicate that on 17 March 2016 a notice of meeting and documents re buyback were received by ASIC.  Those documents have not been provided to the wife.  As a consequence, she has no understanding of what arrangements, if any, have been made in relation to a share buyback and whether or not that buyback includes shares held in B Pty Ltd on behalf of the husband by his American based company.  The ASIC records also indicate that on 29 March 2016 there was a change to the share structure in B Pty Ltd and notification of share issue in that entity.

13. The ASIC register indicates that on 5 April 2016 the husband ceased his role as a director and secretary of B Pty Ltd.  The wife deposes that the husband did not disclose the changes in the structure or operation of B Pty Ltd to her, notwithstanding that the parties have been participating in a collaborative family dispute resolution process for the period October 2015 until 5 April 2016. 

14. As a result of those undisclosed changes and the fact that the husband has indicated that he proposes to travel overseas on a indefinite basis, the wife holds grave concerns that the husband will not submit to the jurisdiction of this Court and, further, that he may actively take steps to thwart the wife’s application for property settlement by transferral of assets out of the jurisdiction of this Court.  It is on that basis that the wife seeks orders restraining the husband from leaving the jurisdiction.

15. The orders sought on behalf of the wife are orders pursuant to s114 of the Family Law Act1975 (Cth) (“the Act”). Section 114(3) of the Act provides:-

    A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (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.

16. In determining the issue of whether or not the husband should be restrained from leaving the jurisdiction, I have considered carefully the decision of Mullane J in Anstis & Anstis& Anor (2000) FLC 93-013; [1999] FamCA 841. I have also taken into account the detailed references there to the International Covenant on Civil and Political Rights where it is provided in article 12 that everyone shall be free to leave any country, including his own. That convention highlights the requirement for due care to be exercised prior to restraining a person from leaving this country, and further requires the applicant to satisfy an onus of proof.

17. The wife offers an undertaking to the Court to meet any loss sustained by the husband due to a delay in his travel arrangements.  Unlike other cases determined by this Court, the husband is not seeking to travel for business or income earning purposes.  His position currently is that he is unemployed.  The orders proposed are, at this stage, of short duration only.  I will make orders requiring that this matter be relisted before me in a matter of days.  That will then afford the husband the opportunity to engage lawyers and to respond to the allegations of the wife insofar as her concerns that the husband is either attempting to dissipate or dispose of assets, or otherwise transfer them out of the jurisdiction.

18. I will make orders requiring the wife to serve her application, the affidavits in support and these orders upon the husband, and also upon the lawyer who represented him in the collaborative law process.  Service should be effected as soon as practicable.

19. I am satisfied that there is a basis in this case for the granting of the interim injunctions sought by the wife restraining the husband from leaving the jurisdiction, and also restraining him from dealing with the assets.  There is sufficient evidence before me to satisfy me on an urgent interim basis that there is a sound basis for the wife’s concerns.  The actions of the husband in taking steps to leave the jurisdiction, coupled with the apparent failure by him to inform the wife of the changes in the structure and ownership of B Pty Ltd, in my mind, form a sound basis for interim orders as sought.  In making orders, I need to balance the prejudice to the husband against the prejudice to the wife if orders are not granted.  The balance of convenience on an urgent interim basis for the period under consideration favours the wife.  It is but a short delay in the husband’s proposed travel arrangements.  That short delay will afford him an opportunity to inform the wife and her lawyers of the circumstances of his proposed travel and also the circumstances with respect to B Pty Ltd. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 April 2016.

Associate: 

Date:  11 April 2016