Daniels & Findlay (No 3)

[2012] FamCA 509

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY (NO. 3) [2012] FamCA 509

FAMILY LAW - INJUNCTIONS – restraint from leaving the Commonwealth of Australia - Ex-parte Application

Family Law Act 1975 (Cth)

APPLICANT: Mr Daniels

RESPONDENT: Ms Findlay

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 29 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 29 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Combes

SOLICITOR FOR THE APPLICANT: Holt & Macdonald Pty Ltd

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. The applicant husband have leave to proceed with his application filed this day on an ex parte basis.

2. Until further order the respondent wife MS FINDLAY born … February 1947 be and is hereby restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories give effect to these orders by placing the respondent’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watch List until the Court orders its removal.

3. The Court forward a copy of this order to the Australian Federal Police.

4. The husband’s application filed this day be adjourned for Mention before Justice Macmillan at 12 noon on Wednesday 30 May 2012 and the wife be permitted to attend the said Mention by telephone subject to her notifying my Associate by email at … of any change to the telephone number previously provided to the Court by 11:00am on 30 May 2012.

5. Sealed copies of the following documents be served upon the wife by email at the following email addresses … and … :

   a.the husband’s application filed 29 May 2012;

   b.the affidavit of the husband filed 29 May 2012;

   c.the affidavit of Donald Keith Ryan filed 29 May 2012; and

   d.a sealed copy of this order.

6. The husband’s costs of this application be reserved.

7. The engrossment of this order be expedited forthwith.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels & Findlay (No. 3) 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 1996 of 2008

Mr Daniels

Applicant

And

Ms Findlay

Respondent

REASONS FOR JUDGMENT

1. I have before me today an application by the husband seeking to restrain the wife from leaving the Commonwealth of Australia, pending her compliance with orders made for property settlement.  The matter clearly has a long history.  In summary, her Honour Dessau J made final orders for property settlement on 9 March 2010.  Paragraph 9 of those orders provides as follows:

   That forthwith after conformance of order 6 of, the husband shall do all acts and things and sign all documents necessary to transfer any funds remaining in the accounts of the [A] superannuation fund in to the Holt & McDonald trust account for the parties, to be dispersed as follows.

2. The order then sets out how those funds are to be disbursed.  There have been numerous hearings with respect to paragraph 9 of these orders and in particular, in relation to the funds held in a Westpac account in the name of A-P Proprietary Limited, the trustee of the superannuation fund.  As found by her Honour in her judgment delivered on 17 February 2011:

   …… acts, omissions or applications since then have mostly placed obstacles and created issues that have interfered with the orders. 

3. The evidence before me today is that on 14 December 2010, the wife removed the husband as a director of A-P Proprietary Limited.  As a result of which, Westpac refused to accept the husband’s directions to pay out the funds in accordance with the orders.  The husband was briefly reinstated by N Firm appointed by the Court to assist in winding up the parties’ various corporate entities, but was again removed as a director by the wife, who thereafter appointed third parties without the husband’s knowledge or consent, it is submitted, in a further attempt to frustrate the orders.

4. On 11 May 2012 Dessau J ordered as follows:

   That the wife by herself, her servants or agents shall be, and is hereby restrained from either directly or indirectly making or attempting to make any change to the shareholders, directors, secretary, addresses or any other office bearers or registered details of the company [A-P Pty Ltd] or interfering and/or moving moneys or providing any directions to Westpac Bank in relation to account number […55] or any account in the name of A-P Pty Ltd] save for an order of this Honourable Court or direction from [N Firm].

5. In anticipation of a hearing on 24 April 2012, the husband’s solicitor issued a subpoena to Westpac Bank to ensure that the funds the subject of the enforcement proceedings, were still held in a term deposit at Westpac’s Suburb 2 branch.  When he inspected those documents, the husband’s solicitor ascertained or deposes that he ascertained that those funds had been transferred to the Suburb 1 branch of Westpac.  The matter was subsequently adjourned to 11 May 2012 and in anticipation of that hearing, a further subpoena was issued to Westpac Head Office and the Suburb 1 branch.  On 11 May 2012 when her Honour made the order previously referred to, the wife and a Ms H, objected to the release of those subpoenas.  There was a hearing of those objections on 25 May 2011 and her Honour made orders on that date releasing the documents for inspection. Ms H did not appear.

6. When the husband’s solicitor inspected the documents, he discovered that the account referred to in her Honour’s order had been closed and funds paid to a Commonwealth bank account.  This occurred on 29 April 2012.  This was not disclosed by the wife during the course of either the hearing on 11 May or the hearing on 25 May 2012.  The husband deposes on Friday, 28 May 2012 he attended the Suburb 2 branch of the Commonwealth Bank and spoke to a bank officer.  He asked her to confirm the existence of the account with the Commonwealth Bank into which he believed those funds had been transferred and was advised that the account had been established but that the funds were recalled on 23 May 2012 by Westpac and there were no longer any funds in the Commonwealth Bank account.

7. I have also been directed to documents which were produced pursuant to the subpoena dated 4 May 2012 and released pursuant to her Honour’s order on 25 May 2012, which disclosed correspondence passing between Westpac Bank and what is described as the directors of A-P Proprietary Limited.  That correspondence also refers to [name omitted], which I note is the wife’s given name.  There is also correspondence in which the wife describes herself as secretary, company secretary on behalf of the board of directors of A-P Proprietary Limited.  The husband’s solicitor deposes to the wife having advised her Honour Dessau J that she planned to leave Australia for Europe on 1 June 2012. 

8. It is the husband’s Counsel’s recollection that her departure date was 31 May 2012. 

9. It is submitted on behalf of the husband that I should restrain the wife from leaving the Commonwealth of Australia, pending her compliance with her Honour’s order.  I am asked to make those orders on an ex parte basis and whilst I cannot make findings that the wife has in fact breached paragraph 2 of her Honour’s orders made on 11 May 2012, there is certainly prima facie evidence which would suggest that to be the case.  It seems highly unlikely in the context of what would appear to be the wife’s strenuous objection to the release of the subpoenaed documents, that she was not aware of the transfer of the moneys from the account which was the subject of that subpoena. 

10. I am proposing to make the injunction sought by the husband pursuant to section 114 (3) of the Act, in aid of the enforcement of her Honour’s orders, and to secure and preserve the moneys which are the subject of the hearing in July

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 29 May 2012

Associate: 

Date:  6 July 2012