EMSDEN & EMSDEN

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.