EMSDEN & EMSDEN - [2015] FamCA 1031

FAMILY COURT OF AUSTRALIA

EMSDEN & EMSDEN

[2015] FamCA 1031

FAMILY LAW – INJUNCTIONS – Property – application by the wife for an interlocutory injunction to restrain the husband from disposing of property – where final property orders were made by consent in 2008 – where the wife seeks to have the final property orders set aside pursuant to s 79A of the Family Law Act 1975 – where the wife has established a prima facie case for relief under s 79A with respect to non-disclosure of the husband – interim orders made ex parte as sought by the wife – further listing of matter to allow the husband to file responding material

Family Law Act 1975 (Cth)

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46
M & DB [2006] FamCA 1380
Waugh & Waugh [2000] FamCA 1183

APPLICANT:

Ms Emsden

RESPONDENT:

Mr Emsden

FILE NUMBER:

MLC

4374

2007

DATE DELIVERED:

24 November 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

20 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wood

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

Orders

IT IS ORDERED THAT

Until further order the Respondent, by himself, his servants, employees and agents be and is hereby restrained from selling, encumbering, transferring or disposing of any interest held by him in any and all real and personal property, whether held in Australia, or elsewhere, including but not limited to any chose-in-action and/or financial resource, and any and all interest in the following assets:
(a)the real property of B Street, Suburb A or the proceeds of sale of same (save and except to complete settlement of the sale of such property and to complete settlement of the purchase by him personally, or any Australian entity he controls, of any alternative real property within Australia, which the Respondent personally, or any Australian entity he controls, has contracted to purchase);
(b)C Pty Ltd and C Business Trust, save in the ordinary course of business;
(c)D Limited, save in the ordinary course of business;
(d)C Superannuation Fund; and
(e)any cash at bank, whether held in Australia or elsewhere (including but not limited to Country I) save that the Respondent be permitted to access such sum as is necessary for the purpose of meeting his ordinary living expenses.
The Applicant forthwith cause her lawyers to personally serve on the Respondent sealed copies of the following documents:
(a)these orders;
(b)her Initiating Application filed 5 November 2015;
(c)her Affidavit affirmed 4 November 2015 and filed 5 November 2015;
(d)her Financial Statement affirmed 4 November 2015 and filed 5 November 2015; and
(e)the Affidavit of Mr E affirmed 20 October 2015 and filed 5 November 2015.
The Applicant’s Initiating Application be adjourned to the Judicial Duty List at 10.00 am on 2 December 2015 for hearing in relation to paragraph 2 of the interim orders sought in that Application.
The reasons for judgment of the…

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.

Continue reading EMSDEN & EMSDEN

Details

AGLC: EMSDEN & EMSDEN [2015] FamCA 1031
Case: [2015] FamCA 1031
Decision Date: 24 November 2015

CaseChat Overview and Summary

The case of *Emsden & Emsden* involved an application by the wife seeking to set aside final property orders made by consent on 15 December 2008. The wife's central assertion was that the husband had failed to make full and frank disclosure of material information during the negotiations leading to those orders, thereby causing a miscarriage of justice. Specifically, the wife alleged that the husband had failed to disclose the establishment of an entity known as D Limited in Country I in February 2008, which was used to receive royalties that would otherwise have been paid to C Pty Ltd.

The legal issues before the court included whether the husband's alleged failure to disclose the establishment and use of D Limited to divert royalty income constituted a ground for setting aside the final property orders under section 79A of the *Family Law Act 1975* (Cth). The court was required to determine if this non-disclosure amounted to a miscarriage of justice and if the wife's consent to the original orders was obtained as a consequence of this material omission, despite her repeated requests for information and documentation.

In its reasoning, the court considered the principles governing the exercise of its power to grant injunctions under section 114(3) of the *Family Law Act 1975* (Cth), which permits injunctions where it is "just or convenient to do so." The court emphasised that determining the just and convenient outcome requires an overall assessment of various factors, acknowledging that different weightings of these factors can lead to different results. The court distinguished between establishing a probability of a risk of disposal of property intended to defeat an order and proving, as an independent issue, that a scheme to defeat an order exists. While evidence of intention or a scheme can contribute to establishing the objective risk of disposal, it is one factor among others relevant to that risk. The court cautioned against commencing with a rigid focus on proving specific factors to a particular standard of proof, as these are subsidiary to the ultimate question of whether an injunction should be granted.

The court ordered that the respondent husband be restrained from selling, encumbering, transferring, or disposing of any interest in real or personal property, both within Australia and elsewhere, including specific assets such as property at B Street, C Pty Ltd, C Business Trust, D Limited, C Superannuation Fund, and cash at bank. Exceptions were made to allow for the completion of the sale of the B Street property and the purchase of alternative real property, as well as transactions in the ordinary course of business for C Pty Ltd and C Business Trust. The respondent was also permitted to access funds for ordinary living expenses. The applicant wife was ordered to serve sealed copies of the court's orders, her Initiating Application, and supporting affidavits on the respondent. The Initiating Application was adjourned for further hearing, and liberty to apply on short notice was reserved to the respondent.

Orders

Orders of the court

IT IS ORDERED THAT

Until further order the Respondent, by himself, his servants, employees and agents be and is hereby restrained from selling, encumbering, transferring or disposing of any interest held by him in any and all real and personal property, whether held in Australia, or elsewhere, including but not limited to any chose-in-action and/or financial resource, and any and all interest in the following assets:

(a) the real property of B Street, Suburb A or the proceeds of sale of same (save and except to complete settlement of the sale of such property and to complete settlement of the purchase by him personally, or any Australian entity he controls, of any alternative real property within Australia, which the Respondent personally, or any Australian entity he controls, has contracted to purchase);

(b) C Pty Ltd and C Business Trust, save in the ordinary course of business;

(d) C Superannuation Fund; and

(e) any cash at bank, whether held in Australia or elsewhere (including but not limited to Country I) save that the Respondent be permitted to access such sum as is necessary for the purpose of meeting his ordinary living expenses.

The Applicant forthwith cause her lawyers to personally serve on the Respondent sealed copies of the following documents:

(a) these orders;

(b) her Initiating Application filed 5 November 2015;

(d) her Financial Statement affirmed 4 November 2015 and filed 5 November 2015; and

(e) the Affidavit of Mr E affirmed 20 October 2015 and filed 5 November 2015.

The Applicant’s Initiating Application be adjourned to the Judicial Duty List at 10.00 am on 2 December 2015 for hearing in relation to paragraph 2 of the interim orders sought in that Application.

The reasons for judgment of the Honourable Justice Macmillan be reserved.

The Applicant forthwith cause her lawyers to personally serve on the Respondent a copy of those reasons for judgment upon the Respondent forthwith upon receipt of same.

Liberty to apply on short notice be reserved to the Respondent.

IT IS CERTIFIED THAT

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Full Court went on to say in conclusion as follows:46.Finally, we think it helpful to recognise that the essential power being exercised in this case is simply described in s 114(3).“A court…may grant an injunction…in any case in which it is just or convenient to do so…”47. Ultimately, each case will involve an overall assessment of a number of factors to determine the just or convenient result. Not all cases with the same identity of factors will necessarily produce the same result because of varying weight individually and comparatively.48. We perceive that a real, though perhaps subtle, difference exists between, on the one hand, establishing on the balance of probabilities a risk or danger of a disposal of property intended to defeat an order and, on the other hand, proving to the civil standard and as an independent issue that a scheme to defeat an order exists.49. In some cases, the possibility (based on some evidence) of an intention or scheme may, with other factors, be sufficient to establish the probability of an objective risk of disposal with intent to defeat an order.50. It follows that we do not say that, in addressing the question of whether there is a risk of disposal of assets to defeat an order, it is unnecessary to enquire whether there is any evidence of an intention, plan or scheme to dispose of assets. But in an enquiry into the risk of disposal, the question of intention or scheme is but one of a number of factors relevant to the objective risk of disposition to defeat an order.51. Moreover, while ultimately a particular factor may overwhelm others, it is generally unwise to commence with a rigid focus on finding, to a particular standard of proof, one or more of a number of factors relevant only at a discretionary level and subsidiary to the ultimate question.(Original emphasis) The wife in her Initiating Application filed 5 November 2015 seeks orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) setting aside the final property orders made by consent on 15 December 2008 on the ground that, as a consequence of the husband’s failure to disclose relevant information, there has been a miscarriage of justice. The wife’s case is that the husband failed to make full and frank disclosure during the negotiations which lead to the final property orders being made, information that she asserts was material to obtaining her consent to those orders. She says this is notwithstanding repeated requests for information and documentation which she would say the husband resisted. In particular the wife asserts that the husband failed to disclose that in February 2008 he established an entity know as D Limited (“D”) in Country I or caused that entity to be established to receive royalties from J Pty Ltd in the USA that would have otherwise have been paid to C. On 5 November 2015 the wife filed and relied upon the affidavit of Mr E in support of her assertion that the husband used D to divert royalty income paid by J Pty Ltd to C to D in Country I.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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