Deanes and Coopers

[2007] FamCA 1054

FAMILY COURT OF AUSTRALIA

DEANES & COOPERS [2007] FamCA 1054

FAMILY LAW – PROPERTY – Injunctions and costs of application

APPLICANT: MS DEANES

RESPONDENT: MR COOPERS

FILE NUMBER: MLC 7450 of 2007

DATE DELIVERED: 15 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.I. Strum

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr P. Indovino

SOLICITOR FOR THE RESPONDENT:

Orders

1. That until further order, or the prior written agreement of the parties, the husband, by himself, his servants or agents be and is hereby restrained by injunction from:-

   (a)disposing, encumbering, pledging or in any manner otherwise dealing with the assets held by A (Australia) Pty Ltd ("A Pty Ltd") as trustee for the Deanes & Coopers Family Trust ("the Trust") or attempting so to do or abiding the doing of same and, without limiting the generality of same, all funds held in the Macquarie Investment Management Limited account ("the Trust Account") save as provided by paragraph 3 hereof;

   (b)resigning as director of A Pty Ltd;

   (c)appointing any additional directors to the board of A Pty Ltd;

   (d)relinquishing or exercising his powers of appointment and/or guardianship in the Trust;

   (e)in any manner seeking to vary, amend or alter the terms of the Trust.

2. That the husband personally and in his capacity as:-

   (a)appointor and/or guardian of the Trust;

   (b)director of A Pty Ltd;

   (c)controller of the shareholders of A Pty Ltd

   do all acts and things and sign all documents as may be necessary to reinstate the wife as and/or make her the sole other signatory but at all times jointly with him to the Trust Account such that the said account be only operated by them jointly and at all times subject to these injunctions and orders.

3. That, notwithstanding paragraphs 1 and 2 hereof, the husband and the wife forthwith sign all documents and to all acts and things necessary to cause the sum of $100,000 to be withdrawn from the Trust Account and paid in two equal amounts of $50,000 to the solicitors for each of the husband and the wife, with the ultimate categorisation of such payments reserved to the Trial Judge.

4. That the husband forthwith and in any event by not later than 26 September 2007 do all acts and things necessary to:-

   (a)complete and submit all outstanding taxation returns for himself personally and for the Trust; and

   (b)otherwise reinstate his income protection insurance payment from ING.

5. That pursuant to Rule 19.50 of the Family Law Rules, this matter reasonably required the attendance of Counsel.

6. That the parties and their legal representatives attend a Conciliation Conference after 7 November 2007 on a date to be advised to the parties.

7. That the husband pay the wife's costs of this application, such costs to be agreed between solicitors within 14 days or otherwise to be taxed.

8. That the wife's amended Form 2 Application in a Case filed 7 August 2007 and the husband's Form 2A application filed 7 August 2007 shall be otherwise dismissed insofar as they relate to property/financial matters.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as DEANES and COOPERS.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7450 of 2007

MS DEANES

Applicant

And

MR COOPERS

Respondent

REASONS FOR JUDGMENT

1. I heard the wife's application earlier today for injunctive relief in relation to a pending property case.  In the course of discussion I made it clear that I proposed adopting a course whereby each party would receive a payment of $50,000 to be characterised by the trial Judge, and the restraints sought by the wife would in one way or another come into effect.  Mr Strum for the wife now seeks costs.  I propose acceding to that request. 

2. Costs are dealt with under s 117 of the Family Law Act. Each party shall bear their own costs, but at the discretion of the court, costs can be ordered, taking into account the various matters set out in s 117(2A) of the Family Law Act. 

3. I am conscious that both parties at this stage do have access to monies.  I take that into account.  Otherwise, I cannot overlook the similarity between the proposals put by the wife through her solicitors, to the husband through his solicitors, within the last week, and the outcome today.  Mr Indovino for the husband has skilfully tried to persuade me that there are some differences in the ultimate orders.  In my view those differences are really quite small.  The upshot of the orders is almost identical to the major part of the proposal put by the wife's solicitors in a genuine effort to resolve the matter without any costs being incurred on this application.  According, I am going to grant costs in her favour.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate: 

Date:  15 August 2007