Docarmo and Docarmo and Ors

[2019] FamCA 266

FAMILY COURT OF AUSTRALIA

DOCARMO & DOCARMO AND ORS [2019] FamCA 266

FAMILY LAW – INJUNCTIONS – Ex parte and Interlocutory – Whether the husband should be restrained from dealing with property – Whether the husband should be restrained from leaving the Commonwealth of Australia – Where the wife has filed an application for property adjustment orders pursuant to s 79 with reasonable prospects of success – Where the injunctions sought against the husband are granted upon the undertaking of the wife to pay any damages suffered as a result of the injunctions – Where the husband must provide an accounting of funds received by him from the sale of the former matrimonial home.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Anstis & Anstis & Anor (2000) FLC 93-013

APPLICANT: Ms Docarmo

FIRST RESPONDENT: Company A Ltd

SECOND RESPONDENTS: Ms B and Ms C

THIRD RESPONDENT: Mr Docarmo

FILE NUMBER: BRC 4434 of 2019

DATE DELIVERED: 17 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 17 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Cameron

SOLICITOR FOR THE APPLICANT: Hetherington Family Law

FOR THE RESPONDENT: Matter heard on ex parte basis

Orders

1. The first and second named respondents be removed as parties in the proceedings.

2. The third named respondent be substituted as the first and only respondent in the proceedings and the service copies of the Initiating Application and supporting material show the first and second respondents’ names struck through.

3. The respondent is restrained and an injunction hereby issues restraining him from:

   (a)       Encumbering, charging, dealing with or disposing of the interests of the parties or either of them, or authorising, directing or otherwise participating in the selling, encumbering, disposing, charging, transfer or dealing with the property of the parties or either of them, including but not limited to the following:

   (i)The proceeds of sale derived from the sale of D Street, Suburb E in the State of Queensland (“the D Street, Suburb E property”); and

   (ii)Any funds held in any account with a financial institution within the Commonwealth of Australia, including but not limited to Bank A, save for such sums as may be necessary to meet his day to day living expenses.

4. The respondent shall, within 7 business days of the date of this Order:

   (a)       Provide a true and faithful written accounting of all monies received by him arising out of the sale of the D Street, Suburb E property and any other property disposed of by him since 1 November 2018; and

   (b)       Advise the applicant by her solicitors in writing as to the present whereabouts of any monies paid to the husband or to any person or entity at his request or direction, or with his authority in respect of the sale of the D Street, Suburb E property, or any other property since 1 November 2018, including the name of the bank or financial institution, the name of the account holder, BSB and account number into which any monies derived from the sale of the D Street, Suburb E property or other property has been deposited into.

5. The respondent is restrained and an injunction hereby issues restraining him from leaving the Commonwealth of Australia and the Court requests that the Australian Federal Police give effect to this Order by placing the name of the respondent, Mr Docarmo, on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said respondent’s name on the Family Law Watchlist until the Court orders his name be removed.

6. The applicant be granted leave to issue a subpoena to Company A Ltd to produce documents.

7. Service of the Initiating Application and supporting material and this Order be effected upon the husband forthwith by email.

8. The Initiating Application (final and interim orders) filed 17 April 2019 be adjourned for further hearing before Senior Registrar Spink on 30 May 2019 at 10.00am.

9. Notwithstanding the preceding paragraph, each party be at liberty to apply for the re-listing of the matter on the giving of 48 hours’ notice.

10. Costs be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Docarmo & Docarmo and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:       BRC 4434 of 2019

MS DOCARMO

Applicant

And

COMPANY A LTD

First Respondent

And

MS B AND MS C

Second Respondents

And

MR DOCARMO

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought by Ms Docarmo on an urgent ex parte basis seeking to restrain her husband from dealing with the proceeds of sale of the former matrimonial home and any other property that might be the subject of her application for final orders for a property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).

2. The Initiating Application names Company A Ltd as the first respondent and it was conceded that the sole purpose of doing so was to obtain from that entity certain documents.  It was readily conceded by counsel for the applicant wife that a subpoena to issue documents would achieve the outcome desired and hence it was agreed that Company A Ltd should be removed as a named party in the proceedings.

3. Likewise, the second named respondents, Ms B and Ms C, should be removed as named parties, it being conceded that on the evidence currently before the Court there is no basis upon which Ms C could be joined and the connection between the husband and Ms B is only that they have a joint shareholding in a company, but the husband does not own his shareholding beneficially.  Again, without objection, Ms B and Ms C will be removed as parties to the proceedings, which will leave Mr Docarmo as the sole respondent in the proceedings.

Background

1. The background circumstances are that the applicant and respondent are husband and wife.  They married in 2004 and separated under the same roof in November 2017, according to the wife, and physically separated in November 2018.  It seems that the husband disputes the date of separation but that is not relevant for today’s purposes. 

2. There are no children of their marriage. 

3. The parties purchased what was then the former matrimonial home at D Street, Suburb E, Queensland in 2004 for $350,000.  Of the purchase price, the wife says that she contributed $200,000 initially and then, subsequent to purchase, a further $50,000 towards renovations.  The parties needed to borrow the balance purchase price and the property and the mortgage were registered in the husband’s sole name.

4. When the parties physically separated, the wife says that there was an agreement reached between them that the home would be sold, that the husband would keep the wife informed as to the progress of the sale and that upon sale, he would pay to her the $200,000 which she had initially contributed to the purchase price. 

5. Quite fortuitously it seems, the wife discovered on Facebook that the husband sold the property without consultation with her and the results of various searches undertaken on her behalf confirm this and that the mortgage to Company A Ltd has been released and the sale of the property has settled.

6. Doing the best she can, the wife estimates that around $345,000 or $350,000 should be remaining from the sale of the property after payment of the amount due to Company A Ltd. 

7. The wife last had contact with the husband on 22 February 2019.  Since then he has failed to respond to her numerous text messages.  The wife says that in the last conversation she had with the husband he said to her, “I want you out of my life as soon as possible”.

8. The husband has both a Country H and Country J passport and, given the husband’s actions, it would seem to me that the wife has a reasonable basis to be concerned about what the husband intends to do with the remaining funds from the sale of their home. 

9. The wife deposed to the possibility of a sale of a business but I am not satisfied on the evidence that that has occurred.  No doubt that issue will be subject of further inquiry and evidence at a later stage.  In any event, it is not material for the purposes of this application. 

10. The wife is unemployed. She has little in the way of assets and only a very modest sum invested in superannuation. She has filed with this application an application seeking a property adjustment order under s 79 of the Act and prima facie, she would seem to have reasonably good prospects of achieving an order.

Relevant Legal Principles

1. The application for an injunction is brought pursuant to s 114 of the Act, which provides as follows:

   (1)    In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

   …

   (e)   an injunction in relation to the property of a party to the marriage; or

   …

   (3)    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.

2. ‘Matrimonial cause’ is defined in s 4(1) of the Act to include:

   …

   (e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of sections 114AB); or

   …

3. Prior to granting an injunction, the following matters need to be considered:

   (a)whether there is a serious issue to be tried;

   (b)the balance of convenience;

   (c)whether there is an objective risk of disposal of assets if the injunction is not granted; and

   (d)if it is considered appropriate to issue injunctions, the Court should fashion the injunctions to the minimum extent required.

4. When an application is brought without notice r 5.12 of the Family Law Rules 2004 (Cth) must be considered.

Discussion

1. In the circumstances of this case (as set out above), I am satisfied that it is appropriate to proceed on an ex parte basis. 

2. While the applicant offers an undertaking as to damages, she is a person of few means. However, if she is successful in her application for property settlement pursuant to s 79, one would expect that she would have funds from which to make good any undertaking as to damages if she were ordered to pay them.

3. The wife has, in my view, established that there is a serious issue to be tried in that she has a prima facie entitlement under s 79.

4. If the injunction is not granted, then the prejudice to her would be significant in that if the property was disposed of she would have no ability to succeed in her application.  Given the unusual behaviour of the husband in failing to comply with what the wife says he promised to do, namely, keep her informed as to the progress of sale of the home, and that it would seem the husband is in possession of the proceeds of sale, I am satisfied that there is an objective risk of the disposal of those proceeds and indeed any other property that he is solely in control of.

5. The wife has agreed to amend the proposed injunction against the respondent husband so as to enable him to access sufficient funds to meet his day-to-day living expenses. 

6. In those circumstances, I consider that the injunction restraining the husband from dealing with assets and, in particular, the net proceeds of sale of the former matrimonial home to be soundly based. 

7. The second part of the application seeks to restrain the applicant from departing the Commonwealth of Australia.  The order sought for the respondent to surrender his passports is not pressed given there is an order proposed requesting the Australian Federal Police to place the husband’s name on the Family Law Watchlist. 

8. I have been referred to a decision of Mullane J in Anstis & Anstis & Anor[1] which refers to the International Covenant on Civil and Political Rights which has been ratified by Australia and, in particular, reference is made to the following paragraphs:

   35.Clearly, quite apart from the Covenant, the Court should not lightly exercise a power to restrain a party's freedom to leave the jurisdiction, as to do so is a serious restraint on any citizen. Whilst article 12.2 of the International Covenant on Civil and Political Rights has not been incorporated in Australian Municipal Law, it has been ratified by Australia and incorporated for the limited purposes that I referred to earlier. The same provision is also part of the Universal Declaration of Human Rights passed unanimously by the United Nations. The ratification of the Convention by Australia gives rise to a legitimate expectation that in exercising the power under Sec114(3) a Court will act in accordance with the convention.

   36.Whilst Article 12.2 is in absolute terms, it should not be interpreted in that way, as such interpretation would exclude even restrictions on the freedom of convicted criminals to leave the jurisdiction.

   37.The provisions of Article 12 of the convention reinforce the need for care in exercising the power under the Section to restrain a citizen from leaving the country and require the applicant to satisfy a heavy onus.

   38.In any event the onus on the applicant is not satisfied merely by evidence which establishes that if the respondent left the jurisdiction permanently, the applicant could be denied a remedy which the proceedings are otherwise likely to provide.  The onus on the applicant is to establish a likelihood that the applicant will be denied a remedy if the respondent’s freedom to leave the jurisdiction not limited or suspended.

   [1] (2000) FLC 93-013.

9. In the event that the order as sought by the wife is not made, it is likely she will be denied the fruits of a property adjustment order. Even if the husband has already sent the proceeds of sale overseas, the wife’s prospects of having the money repatriated from overseas would only be likely if the husband were in Australia and subject to personal mandatory injunctions. Any restraint on the husband’s travel will be short term and subject to his right to urgently relist the matter.

10. In those circumstances, it seems to me appropriate to grant the injunctions as sought.

11. Accordingly, I make the above order subject to the wife, by her counsel, undertaking to the Court to pay any damages assessed as suffered by the respondent as a result of these injunctions.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 17 April 2019.

Associate:

Date:  29 April 2019