Field and Kingston (No 2) - [2017] FamCA 1071

FAMILY COURT OF AUSTRALIA

FIELD & KINGSTON (NO. 2)

[2017] FamCA 1071

FAMILY LAW – PROPERTY – Interim proceedings – Where the wife seeks a “dollar for dollar” costs order – Where such an order is sought under section 117 of the Family Law Act – Where the wife alleges the order is needed to “level the playing field” – Where neither party has made full disclosure as to their financial circumstances – Where a finding cannot be made that the husband has far greater access to funds than the wife – No order made for litigation costs – Where the wife seeks that the husband be restrained from dealing with the former matrimonial home – Where the husband has shown a propensity to shift and dispense of matrimonial assets – Where the injunction sought by the wife is not onerous – Injunctive order made – Where the husband seeks that the wife be restrained from bringing further proceedings until her pending appeal is finalised – Where the husband sought that such an order be made under section 114 of the Family Law Act or Rule 1.09 of the Family Law Rules – Where the appropriate section under which such an order may be made in section 102QB of the Family Law Act – Where both parties have brought numerous applications before the court – Where the wife does not meet the threshold of a vexatious litigation – No order made restraining the wife from bringing further applications.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 80, 102Q, 102QB, 114, 117
Family Law Rules 2004 (Cth) r 1.09

Bernieres and Anor & Dopal and Anor (2017) FLC 93 -793
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Glover v Walters (1950) CLR 172
In the Marriage of BA and RS Waugh (1999) 27 FamLR 63
Jackson v Sterling Industries Ltd (1987) 162 CLR 612; 71 ALR 457
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Penfold v Penfold (1980) 144 CLR 311
Poletti & Poletti (Unreported, Family Court of Australia, Nygh J, 2 March 1990)
Strahan & Strahan [2009] FamCAFC 166
The Estate of Parke and Anor & Parke [2017] FamCA 454
Wilson & Wilson (1989) FLC 92-033
Zschokke & Zschokke (1996) FLC 92-69

APPLICANT:

Ms Field

RESPONDENT:

Mr Kingston

FILE NUMBER:

PAC

2095

2014

DATE DELIVERED:

21 December 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

13 June 2017 & 14 August 2017 & 14 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dart on 13 June 2017

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC on 13 June 2017 and 14 November 2017, Mr Elliott on 14 August 2017

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

That Orders (1) – (4) sought by the Wife in her Amended Application in a Case filed 7 June 2017 are dismissed.
That upon the Wife’s undertaking as to damages the Husband, Mr Kingston, be restrained from selling, charging, mortgaging, encumbering, alienating, disposing of or in any other way dealing with the property known as and situate at D Street, Suburb B being the whole of the land contained in folio identifier … without first providing to the lawyer for the Wife 90 days notice in writing.
That Order (2) sought by the Husband in his Response to an Application in a Case filed 14 August 2017 be dismissed.

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 Field & Kingston 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 PARRAMATTA

FILE NUMBER: PAC 2095 of 2014

Ms Field

Applicant

And

Mr Kingston

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment concerns numerous applications made by both parties as to costs, injunctions and other specific orders. Specifically this judgment concerns:
a)Two applications for costs made by the husband, the Respondent in the substantive proceedings, (“the husband”) in Applications in a Case filed 14 July 2016 and 30 August 2016.
b)An application for orders dispensing with a conciliation conference in favour of listing the matter for trial made on behalf of the husband orally on 13 June 2017.
c)An application for a specific costs order (known as a “dollar for dollar order”) made by the wife, the Applicant in the substantive proceedings, (“the wife”) in an Application in a Case filed 7 June 2017.
d)An application made by the wife in her Amended Application in a Case filed 7 June 2017 for an order that the husband be restrained from dealing with a particular property registered in the husband’s name without giving 90 days notice to the wife.
e)An application made by the husband in his Response to the wife’s Amended Application in a Case filed 14 August 2017 for orders restraining the wife from making further applications to the court until her appeal, which is currently pending, is finalised.
In Applications in the Case filed 14 July 2016 and 30 August 2016 the husband sought orders that the wife pay his costs of and incidental to applications [a) above]. On 13 June 2017 an oral application was made by the husband for the conciliation conference to be dispensed with and the matter listed for trial [b) above]. On the same date the parties were directed to provide directly to chambers written submissions as to the costs applications and the oral application as to dispensing with the conciliation conference.
Judgment was subsequently reserved on receipt of those submissions on 7 July 2017.
On 7 June 2017 the wife filed an Amended Application in the Case seeking a “dollar for dollar” order for the payment of her legal costs and an injunction restraining the husband from dealing with a particular property owned by him [c) and d) above].
In his Response to the wife’s Amended Application in a Case filed 14 August 2017 the husband sought an order that the wife be restrained from bringing further applications until her appeal against orders I had previously made in the proceedings is finalised [e) above].
The applications referred to in c), d) and e) were listed for hearing on 14 August 2017 and after hearing submissions I reserved judgment.
After the applications heard on 14 August 2017 were adjourned for reserved judgment to be delivered, by Application in a Case filed 20 September 2017 the husband sought to reopen the proceedings and rely upon a further affidavit. The proceedings were reopened and each of the parties was permitted to rely upon a further affidavit in relation to the various applications. The proceedings were then further adjourned and judgment reserved on 14 November 2017.
For reasons which shall be explained shortly relating to events that have transpired in the substantive proceedings I am of the view that it is now not appropriate at this stage to determine the first two applications, being costs applications made on behalf of the husband filed 14 July 2016 and 30 August 2016 [a) above] and that it is no longer necessary to deal with the application to dispense with a conciliation conference [b) above]. For these reasons I am concerned only in this judgment with the applications set out in paragraphs [1c)], [1d)] and [1e)] of these Reasons.

Background

On 7 April 2017 I delivered a judgment[1] (“the April 2017 judgment”) in these proceedings dismissing the wife’s application for a certificate under section 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”). That judgment sets out the relevant history of the matter, paragraphs [3]-[14] and [17]-[19] of which are repeated here:
[1]Field & Kingston [2017] FamCA 208.
3. The husband, who is 49, and the wife, who is 42, were married in 2002 and have three children who primarily live with the husband in the former matrimonial home.
4. The parties separated on a final basis in January 2011 and were divorced in July 2014.
5. The wife commenced property settlement proceedings by Initiating Application filed 4 May 2015.[2] The matter has progressed very little since the initiation of proceedings.
[2] The wife seeks orders that would see her receive 50 per cent of the matrimonial property and the husband seeks that her application be dismissed. (footnote added)
6. It appears that the matrimonial property broadly consists of the former matrimonial home in Suburb B, a business owned by the husband and a business owned by the wife.
7. During the marriage the husband ran his own business. In 2008 the husband established a business in which he asserts the wife was not involved.
8. The wife is the owner and operator of a business which includes among other activities training given by the wife. The business was established by her in 1994 and was run by the wife alone throughout the marriage.
9. There is no dispute that the former matrimonial home was used by the wife for the purposes of her business from early 2002. However there are factual disputes between the parties as to who paid for various expenses associated with running the business from the matrimonial home.
10. The wife deposes in her affidavit filed 8 December 2016 that she cannot and does not currently work due to a physical injury and is unable to operate the business from the former matrimonial home due to the conduct of the husband. The wife still operates the business but currently employs a replacement to attend the matrimonial home and conduct the business.
11. There are significant matters in dispute between the parties regarding financial and non-financial contributions to the relationship.
12. The husband contends that the wife indulged in an extravagant lifestyle during the marriage and that there are significant discrepancies between the wife’s expenditure and the financial losses of the wife’s business outlined in her business records.
13. The husband further contends that the wife may have sources of income outside her business that she has not disclosed that allowed her to maintain this high level of expenditure.
14. In 2015 the parties were ordered to obtain valuation of each of the businesses prior to a conciliation conference being held.
…
17. In June 2016 the parties received correspondence from the single expert engaged for the purposes of valuation requesting further information and documents in relation to each of their businesses in order to progress his valuation.
18. It appears to be common ground that the wife needs to disclose the information and documents requested by the expert in order to provide full disclosure.
19. On 14 July [2016] the husband filed a Response to the wife’s Application in a Case opposing the orders sought by the wife and seeking orders as to costs. The husband asserts that the wife has failed to provide full and frank disclosure of her financial circumstances.
The decision in the April 2017 judgment related to an application brought by the wife that she be granted a certificate pursuant to section 128 of the Evidence Act relating to particulars she had been requested by the husband to provide by way of disclosure of her financial circumstances. It was the wife’s contention that such disclosure may tend to prove that she has committed an offense against or arising under Australian law or is liable to a civil penalty. I dismissed the wife’s application for the certificate for the reasons given in the April 2017 judgment.
The wife appealed the orders in the April 2017 judgment by filing a Notice of Appeal on 4 May 2017. That appeal is still pending and is yet to be determined.
On 23 May 2017 the parties were before the Registrar who noted the pending appeal and that there were three outstanding interim applications before the court. The matter was stood over noting it could not proceed in any meaningful way until the wife provided full disclosure.
On 13 June 2017 the matter was before me in the judicial duty list. On that date orders were made by consent for the wife to provide to the husband certain documents sought by the husband in his Response to an Application in a Case filed 14 July 2016. Parties were also ordered to file written submission in relation to the two costs applications.
On 7 July 2017 both parties’ written submission as to costs had been received and judgment was reserved in relation to the applications set out in paragraph [1 a)] and [1 b)] of these Reasons.
On 25 July 2017 the matter was again before the Registrar who noted the wife had filed an Amended Application in a Case and was advised that the wife’s appeal of the April judgment was likely to be determined in 2017. The parties were ordered to file particulars of documents said to have not been disclosed and the matter was listed in the judicial duty list on 10 August 2017.
On 10 August 2017 the wife pressed for her Application in a Case to be given an interim hearing. Over objections of the husband, who sought the matter be adjourned pending determination of the appeal and disclosure by the wife, the matter was listed for interim hearing on 14 August 2017.
On 14 August 2017 the matter was before me for interim hearing for a “dollar for dollar” costs order (originally sought by the wife in an Application in a Case filed 31 August 2016) and injunctive relief against the husband.
As explained earlier the husband had also made application for an order restraining the wife from making further applications to the court until her appeal was finalised and that application was dealt with on the same date.
On 14 August 2017 counsel for the parties made oral submissions and I subsequently reserved judgment.
As explained earlier the proceedings were then reopened on 14 November 2017 and each of the parties was given leave to rely on a further affidavit that had been filed by the husband, the wife and the wife’s solicitor respectively. The husband also sought on 14 November 2017 that the proceedings be listed for a final hearing. The wife opposed the husband’s application that trial directions be given for the purposes of proceeding to a final hearing.
In summary it was contended on behalf of the husband on 14 November 2017 that although the proceedings have been on foot since May 2015 virtually no progress has been made to prepare the matter for trial. He has at all times maintained that the wife is yet to provide adequate disclosure and rather than incur further costs through ongoing interim applications it would be appropriate to give trial directions in preparation for the final hearing. The husband submitted that if the matter proceeds to trial his ongoing contention about the wife’s alleged failure to provide disclosure will simply be a matter to be dealt with at a final hearing.
It was submitted on behalf of the wife that in order for her to comply with the trial directions she would be placed in the same position she was in when she sought a section 128 certificate in relation to documents that she was previously required to disclose. She contends that until the appeal concerning the April 2017 judgment is determined then the matter ought not progress.
On 14 November 2017 I expressed the view that as the section 128 certificate related to matters that the wife was required to disclose which has now been superseded by other events the refusal of a s128 certificate in those circumstances will not necessarily preclude the wife complying with trial directions or once again seeking a similar certificate.
In the circumstances I was of the view that it was appropriate to make directions that the parties file affidavits and necessary reports for the purposes of fixing a trial date after the trial directions had been complied with. In these circumstances the application for orders dispensing with the conciliation conference and listing the matter for trial made on behalf of the husband orally on 14 June 2017 (paragraph [1b)] of these Reasons) is otiose.
Further, the final hearing of the property settlement application is now likely to occur reasonably soon. In these circumstances I am of the view that it is appropriate for the two applications for costs made on behalf of the husband (paragraph [1a)] of these Reasons) and the further application of costs related to the husband’s Application in a Case filed 20 September 2017 to be dealt with at the completion of those substantive proceedings.
Accordingly, this judgment will determine only the wife’s application for a specific costs order, the wife’s application that the husband be restrained from dealing with a specific property without notice to her and the husband’s application that the wife be restrained from making further applications to the court until her appeal is finalised.

The Applications

Litigation Costs

The wife seeks an order that the husband pay the same amount of money to her lawyers as he pays from time to time to his lawyers or other experts engaged by him in respect of the proceedings and other associated orders. Such an order is commonly known as a “dollar for dollar” order.
It is submitted that the purpose of such an order is to help fund the wife’s legal fees and to pay expert witnesses who she submits are required by the parties to value matrimonial assets including the parties’ two businesses. The general tenor of the wife’s argument is that she is seeking an opportunity to present her case on a level playing field and that the husband is in a much stronger financial position than she is.
In seeking an order of this type the wife relies upon the broad power given to the court to make a costs order in section 117 of the Family Law Act 1975 (Cth) (“the Act”). The wife is not seeking an interim property payment.
It is contended on behalf of the husband that the wife’s application (which he describes as an application for interim property orders) cannot fairly be heard or determined at this time and should be adjourned or alternatively dismissed. He contends this position on the basis that as at 14 August 2017 when this application was heard and submissions were made the wife had not properly disclosed her financial position and continued to withhold relevant information. In particular it is submitted that she has not provided disclosure about her income and other sources of funding to meet expenses and has argued that she cannot do so as she may incriminate herself by making such disclosure. The husband maintains that the wife must generate “large cash sums” in her business to fund her high personal expenditure and those funds still remain available to her.
The husband’s contention that the wife had not provided appropriate disclosure sufficient for the court to make any findings about her financial position was amplified by the fact that the day after the “dollar for dollar” application was heard, 15 August 2017, the wife’s solicitor sent to the husband’s solicitor a number of additional documents. It is submitted that these documents were available to the wife and could have been provided prior to the hearing and demonstrate that the wife has other sources of income available to her such that the court could not find that the husband is in a much stronger financial position than her.

The Law

It was observed in Paris King Investments Pty Ltd v Rayhill[3] that there are a number of juridical bases for an order of the type sought by the wife. The Full Court in Zschokke & Zschokke[4] had observed that there was some uncertainty as to the source of jurisdiction to make the orders of the type sought but were of the opinion that the decisions in Wilson & Wilson[5] and Poletti & Poletti[6] established that where there are pending proceedings under s 79 of the Act for property settlement, an order for funds for litigation expenses may be made pursuant to s 80(1)(h) or s 117(2).
[3] [2006] NSWSC 578
[4] (1996) FLC 92-693
[5] (1989) FLC 92-033
[6] (Unreported, Family Court of Australia, Nygh J, 2 March 1990)

In Strahan & Strahan[7] at [84] the Full Court said:
In Paris King Investments Brereton J, with whom on this point we agree, at [30] said that Zschokke “establishes that it is important, when contemplating an order for interim provision for litigation expenses, to identify the relevant source of power because it is the source of power that determines the necessary preconditions and relevant considerations for making the order”.
[7] [2009] FamCAFC 166
The Full Court went on to say at [86]:
… If the source of jurisdiction is s 117(2) of the Act then the court may make such order as it considers just provided there are justifying circumstances. If the order is sought under s 79 of the Act then the court may make such an order as it considers appropriate provided it is satisfied that it is just and equitable to make the order. …
And further:
If the source of jurisdiction is s 117 of the Act, in Zschokke at 83,217 the Full Court said:
If the order is to be made under s.117(2) then, in our view, the matters contained in s.117(2A) must be addressed, and this would seem to have been recognised, if not expressly at least by implication, by the Full Court in Poletti. In saying this we acknowledge that a number of the paragraphs in the sub-section (notably paragraphs (d) failure by one party to comply with court orders; (e) total lack of success by one party in the proceedings; and (f) existence and terms of an offer for settlement) may not have relevance in an application for an order of the type in question. We also acknowledge that it may well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the sub-section, as is permitted by paragraph (g).
Section 117(1) of the Act sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to subsection (2) which gives a Court a discretion to make an order for costs if there are circumstances that it in the opinion justify it in doing so. Any such order for costs is to be pursuant to section 117(2) “as the Court considers just”.
The High Court in Penfold v Penfold[8] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[8] (1980) 144 CLR 311
Although much of the submissions filed on behalf of the wife are directed to the issue of whether the court has the power to make a “dollar for dollar” order pursuant to section 117(2) it was not argued by the husband that the court did not have such power. The husband’s submissions were directed to the contention that there are not circumstances that would justify the court in making such an order in this case.

Section 117(2A) matters

Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.Few of the considerations in section 117(2A) are relevant at this stage in the proceedings other than the financial position of each party and the conduct of the parties to the proceedings.
So far as the financial circumstances of each of the parties is concerned it is the wife’s position that the husband has access to significant financial resources compared to the wife and that the “dollar for dollar” order sought by her will “level the playing field” given this large disparity between their income and financial resources.
It is submitted on the wife’s behalf that the husband’s Financial Statement filed 15 June 2017 does not reliably reflect the husband’s income. In that Financial Statement deposes to earning an average weekly income of just over $2,000 and an average weekly expenditure of just over $4,000.
The wife contends that the husband’s income which is far greater than the amount set out in his Financial Statement can be gleaned from documents tendered on her behalf at the interim hearing. Bank statements produced on subpoena show large deposits made into the husband’s business account in 2013 and 2014 and credits to his account for rent of over $12,000 during 2014. It is submitted that this demonstrates that the husband’s income in the past has significantly exceeded his income as stated in his Financial Statement.
It is also submitted that transactions in various bank accounts controlled by the husband do not support his contentions about his level of indebtedness and demonstrate that he has had and likely continues to have access to significant funds. In a Financial Statement filed 13 August 2015 the husband deposed to property including a credit union account with a balance of $310,000. Bank records relating to the husband’s business account (Exhibit 2) indicate that on 12 January 2016 $294,000 was deposited into this account. Records of a line of credit in the husband’s name (Exhibit 3) indicate that transfers totally $294,000 were made from the husband’s business account into the line of credit account.
In the husband’s Financial Statement filed 15 June 2017 upon which he relied in this application the husband deposes to having a liability of $99,660 and only $497 in his credit union account.
The wife contends that the husband has provided no explanation for transferring $294,000 from his credit union account into his business account and then into the line of credit account. The husband also had $152,295 in his line of credit account which by the time of his June 2017 Financial Statement was in debit in an amount of $99,660. In general it is submitted on the wife’s behalf that the husband has engaged in a pattern of moving funds around through various accounts that he controls to increase his indebtedness. In relation to the issue of the husband’s financial position there are indications that he has had access and is likely to have access to significant funds.
The wife’s contention about the husband’s source of undisclosed income and access to significant funds also arises from a comparison of his tax returns and Financial Statements filed in these proceedings.
In relation to the husband’s financial position it is also contended on behalf of the wife that he has paid at least $112,805 (to 30 November 2016) in legal fees to various lawyers engaged on his behalf. In other words he has had resources available to him to fund these fees.
The husband’s contention in relation to the wife’s financial circumstances is very similar to the position taken by the wife with respect to his financial circumstances.
As previously indicated the husband contends that as the wife’s business operates on a cash basis it is very difficult to ascertain her actual income. He contends that the wife has an extravagant lifestyle since separation including extensive domestic and overseas travel. According to the husband’s affidavit in 2017 alone the wife has had four overseas trips as well as domestic trips, has expended significant sums on cosmetic surgery and the purchase of luxury items and cars and on regular gambling which he contends must be funded by undisclosed sources of income. The husband also relies upon the wife’s tax returns which indicate that her business operates at a loss or a very small net income. The husband also relies upon the wife’s credit card statements which reveal significant expenditure on personal items.
It is the husband’s contention that the wife’s failure to make complete disclosure so that her true financial position is not known is highlighted by the fact that the day after the interim hearing the wife through her solicitor provided further documents by way of disclosure. Those documents include records in respect of a bank account in the name of the wife’s mother in relation to the period May 2013 to 11 August 2017 and this bank account has not been disclosed in the wife’s Financial Statement of August 2015 or her Financial Statement filed 28 April 2016 upon which she relied at the interim hearing.
The husband contends that this bank account, albeit in the name of the wife’s mother, is utilised by the wife and provides her with a steady source of income that she has not previously disclosed. The husband refers to deposits to that account which I understand him to contend relate to the wife’s business and withdrawals for her expenses. Transactions on this account are not insignificant. For example between 12 December 2013 to 10 November 2016 there are total deposits of almost $400,000.
The documents provided by the wife’s lawyers to the husband’s lawyers on 17 August 2017 also include leases for premises in the wife’s name from January 2015 to January 2017 but the wife’s Financial Statements do not disclose any rental payments in relation to this property. These leases disclose that during this period the wife was the tenant of rental premises with a fortnightly rent of $1,400. In the wife’s affidavit she deposed to living in different rented premises and she then moved to live with her parents during the time that the leases provided by her lawyers were current. Letters exchanged between the parties’ respective lawyers also indicate that copies of all leases in respect of premises occupied by the wife since separation were sought but these leases were not provided until after the interim hearing in August 2017.
Further, on 25 August 2017 the husband received from the wife’s lawyers a further letter enclosing statements for an “e-trade” cash investment account in the wife’s mother’s name for the period March 2013 to March 2017 though no explanation was provided as to how this account related to the wife. The husband was not previously aware of the “e-trade” account and it had not previously been declared in the wife’s Financial Statements. During this period there were deposits totalling $175,653 into that account.
The husband contends that the bank statements provided by the wife reveal transactions between her personal accounts, accounts in the name of her business and accounts held in the name of her parents. The husband also contends that a bank account in the joint name of the wife’s parents which includes transactions such as repayments towards a Visa account over nine months of over $104,000 are unlikely to relate to the wife’s parents who are old age pensioners. It is his contention that the Visa card account paid from this account is operated by the wife.
The husband has also always contended in the proceedings that the wife received a considerable sum of money for the sale of a particular item. The purchaser of this item who has sworn an affidavit in the proceedings deposed to purchasing the item from the wife for $10,000. The husband has identified transactions on a bank account in the wife’s mother’s name which are described as relating to “[purchaser of a particular item]” totalling $60,000 which he contends is at least the sum the wife received on that particular sale.
Overall the husband continues to maintain that the wife’s application should be dismissed as the wife continues to withhold information relating to her financial position so her financial position is unable to be determined.
I accept the submission made on behalf of the husband that although many of the documents forwarded to the husband by the wife on 15 August 2017 are in the name of the wife’s mother the fact of their disclosure by the wife as documents relative to the wife’s assets or financial resources and the absence of an explanation on behalf of the wife gives rise to an inference that the documents relate to the financial position of the wife.
In summary, both the husband and the wife contend that the other has not properly disclosed their own financial circumstances. It appears on the documents available to me that it is likely that such a finding is open with respect to both parties. At this stage in the proceedings and for the purposes of this application I am unable to make any definitive findings with respect to the parties’ financial circumstances except to say that each of them seems to have access to sufficient funds to pay for their legal fees in these proceedings and it appears that they have done so to date.
I am not able on the available evidence to make a determination that the husband has access to a greater portion of the parties’ financial resources and that the “dollar for dollar” order sought by the wife is required to “level the playing field” for the purposes of the litigation.
The parties’ failure to make full disclosure concerning their financial circumstances is also relevant to the consideration contained in section 117(2A)(c) being the conduct of the parties to the proceedings in relation to the proceedings. In particular, in my view, it is relevant in this application that the wife provided to the husband documents which appear to have been in her control and which are relevant to the issue of her financial circumstances one day after the proceedings in relation to the order sought by her were heard. This necessitated the husband seeking to reopen the proceedings and incurring further legal costs.
The wife’s disclosure of some further documents just days after judgment was reserved following the interim hearing is suggestive of the wife providing disclosure only when it suits her to do so and that there is merit to the husband’s contention that the wife has further sources of income.
While I cannot find, as the husband submits, that the wife has access to significant assets or financial resources on the evidence available, I also cannot find, as the wife submits, that there is a significant disparity between the financial resources of the husband and those of the wife.
Accordingly the wife’s application for the husband to pay her costs of litigation is dismissed.

Restraints in relation to property

The wife also seeks an order that the husband be restrained from dealing with the major asset of the parties being their former matrimonial home which is unencumbered and has an agreed current value of $2.7 million. The husband continues to reside in this property and operate his business from it and the wife’s business is also operated from that property.
The order sought by the wife is that the husband be restrained from dealing with this property without first providing to her lawyer 90 days notice in writing. The wife submits she will make the usual undertakings as to damages.
The husband seeks that the wife’s application be dismissed.

The Law

Section 114(3) of the Act provides that a court may grant an injunction “in any case in which it appears to the court to be just or convenient to do so”.
The Full Court in In the Marriage of BA and RS Waugh[9] dealt with interlocutory injunctions under this section which had been made by a trial judge restraining the husband from dealing with property, rental income, trusts, business entities or ventures pending the determination of a property settlement between him and his former wife. In granting leave to appeal and allowing the appeal against these injunctions, the Court set out the principles of law to be applied in such a case.
[9] (1999) 27 FamLR 63
Firstly, it was noted [at 32] that “it is important to bear in mind that the jurisdiction to grant interlocutory injunctions under the Act is a statutory jurisdiction derived from s 114(3) and/or s 34(1) of the Act”. In this regard the Court considered the principles enunciated and explained by the High Court when considering a very similar grant of power to the Federal Court in Jackson v Sterling Industries Ltd[10]. In Waugh extracts from Deane J’s judgment in Jackson include when discussing the purpose of a Mareva injunction the following, [at 37]:
It is to prevent a defendant from disposing of his actual assets (including claims and expectancies) so as to frustrate the process of the Court by depriving the plaintiff of the fruits of any judgment obtained in an action.
[10] (1987) 162 CLR 612; 71 ALR 457
It was noted [at 53] in Waugh (supra) that the wife’s affidavit in support of her application in that case had many statements about her fears that the husband would deal with property under his control but there were no assertions that he had, in fact, disposed of anything or incurred any liability other than in the ordinary course of his business operations.
Another High Court case dealing with Mareva injunctions referred to in Waugh is Cardile v LED Builders Pty Ltd[11]. In Cardile the plurality referred referred to the observations of Dixon J in Glover v Walters[12] who referred to a Mareva injunction as a “drastic remedy” and said “its purpose is to preserve the status quo”. In Cardile Kirby J (concurring with the result reached by the plurality) said “the plaintiff must establish a real risk of assets being disposed of”.
[11] (1999) 198 CLR 380
[12] (1950) CLR 172 at [175-6]
The wife submits that the husband has shown a propensity to “shift assets” by disposing of over $300,000 in a credit union account subsequent to her filing an application for interim costs in January 2016, effectively defeating her claim.
The wife further submits that the husband’s unilateral lapsing of a caveat on the property in question which had been in place for three years is suggestive of a scheme by the husband to dispose of the property in order to frustrate her application for property orders.
At the interim hearing on 14 August 2017 it was submitted on behalf of the husband that he seeks to retain the property in question and has no intention of disposing of it. Further, it was submitted on his behalf that the wife’s business, which is the subject of significant dispute between the parties in the substantive proceedings, has yet to be valued and in circumstances where the business operates from the property in question it would be against the husband’s own interest to dispose of the property and place the wife’s business in jeopardy.
It is the husband’s position that the $300,000 the wife claims has been dissipated without notice to her has been utilised in the normal course of the husband’s business to pay off company debts. It is submitted on his behalf that the dissipation of these funds is in no way suspicious and, in any event, not indicative of any risk that the husband will dispose of the real property the subject of the wife’s application.
It is the wife’s position that the husband’s lapsing of the caveat without notice to her and his disposal of the money in his credit union account are factors relevant to the making of injunctive orders notwithstanding that they are past and actions taken by the husband in relation to funds rather real property.[13]
[13]The Estate of Parke and Anor & Parke [2017] FamCA 454
I accept the wife’s submission that the husband has demonstrated a propensity to shift potential matrimonial assets in the past and an inference could be drawn from the timing of his actions that these actions were taken in an effort to frustrate the wife’s claims for property orders.
I also accept the wife’s submission that an injunction that requires the husband to provide the wife’s lawyers with 90 days notice before dealing with real property is not onerous as it restrains the husband only to the minimum extent required and should not cause the husband any inconvenience particularly given his stated position is that he seeks to retain the property that would be subject to the injunction.
For the foregoing reasons, I make the injunctive order as sought by the wife and set out at the forefront of this Judgment.

Restraint on the wife bringing further applications

The husband seeks an order that the wife be restrained from making further applications to the court until her appeal from the April 2017 judgment has been determined.
The wife opposes such an order being made.
At the interim hearing on 14 August 2017 it was submitted on behalf of the husband that the application to restrain the wife is not brought under section 102QB of the Act concerning vexatious litigants. Rather, it is sought that the court make such an order under the general injunctive power provided for in section 114 of the Act or the power under Rule 1.09 of the Family Law Rules 2004 (Cth) (“the Rules”) to make orders as are considered necessary in cases of doubt or difficulty as to matters of practice or procedure.

Dealing with the second of those purported powers first, an order can only be made under Rule 1.09 if the court is satisfied that a legislative provision does not provide a practice or procedure to deal with the issue that has arisen. In circumstances where section 102QB makes specific provision for an order of the nature sought by the husband it cannot be said that there is no legislative provision that deals with the issues raised by the husband.
Section 114 of the Act provides that a court may grant an injunction as it considers proper. While that section does not expressly preclude the making of an injunction restraining a party from making further applications to the court, the following comments from the Full Court in Bernieres and Anor & Dopal and Anor[14] are instructive:
… The answer to that question is assisted by the rule of statutory construction known as generalia specialibus non derogant. That provides that if there is a specific section or sections of the Act that apply, then that section or those sections prevail, particularly where, as here, the specific sections, namely s 60HB and the amended s 60H were enacted after the general (Commissioner of Taxation v Hornibrook (2006) 156 FCR 313).
[14] (2017) FLC 93 -793
As the Act was amended in 2013 to include section 102QB, among others, and makes specific provision for an order restraining a party from making further application to the court without leave, section 102QB, and not section 114, is the appropriate section of the Act to be applied to the husband’s present application.

The Law

The provisions of s 102QB of the Act allow the Court to make an order which has the effect of restraining a party from filing any further application without first obtaining the leave of the Court. The provisions of that section are set out below:
Making vexatious proceedings orders
(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.

(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

The definition of vexatious proceedings is found at s 102Q of the Act:
"vexatious proceedings " includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Both parties have brought numerous applications in these proceedings that have caused delay in the resolution of their matter.
As stated earlier in these Reasons, the wife’s application for an injunction against the husband has been successful and while the wife’s application for litigation funding has been dismissed this does not mean there was no merit to the application.
In my view the wife’s conduct does not reach the threshold of being an abuse of process or the institution of proceedings for a wrongful purpose particularly in circumstances where the husband himself has also made applications to the court while the wife’s appeal of the April 2017 judgment is still pending.
Accordingly, the husband’s application for an injunction restraining the wife from making further applications to the court while her appeal of the April 2017 judgment is pending is dismissed.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 December 2017.

Legal Associate:

Date: 21 December 2017