Foster and Foster

[2018] FCCA 1006

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOSTER & FOSTER [2018] FCCA 1006

Catchwords:
FAMILY LAW – Interlocutory injunction – order to deliver up contents of safe deposit box by third party – application pursuant to s.114 of the Family Law Act 1975 and rr.5.01 & 16.01 of Federal Circuit Court Rules 2001.

Legislation:

Family Law Act 1975, ss.106A & 114

Federal Circuit Court Rules 2001, rr.5.01 & 16.01

Cases cited:

Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55

Talbot & Talbot (1995) FLC 92 – 586

Wei & Huan [2015] FamCA 938

Tassinari v Pesalaccio [2018] FamCA 12

Applicant: MS FOSTER

Respondent: MR FOSTER

File Number: BRC 1484 of 2017

Judgment of: Judge Egan

Hearing date: 20 April 2018

Date of Last Submission: 20 April 2018

Delivered at: Brisbane

Delivered on: 20 April 2018

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: O'Neill Family Law

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the Applicant wife is granted leave to make an urgent application to the court for ex parte orders pursuant to Rule 5.01 of the Federal Circuit Court Rules 2001.

2. That the Applicant wife forthwith cause a copy of this Order to be served by email upon the company Guardian Vaults Sydney Pty Ltd at both its registered office and at its principal place of business, and that for such purpose, the Applicant have leave to effect substituted service of this order by emailing a sealed copy of it to one Ms K at the email address: (omitted).

3. That Guardian Vaults Sydney Pty Ltd, forthwith upon service of this Order upon it as provided for in Order 2 hereof, do all such things and take all such steps so as to cause the contents of a safe deposit box (whatever they may be) held by it for or on behalf of the Respondent, MR FOSTER, to be delivered into the possession of a Solicitor named Michael Carroll of LHD Lawyers for his safe keeping, and that thereupon the said Mr Carroll is authorised to take such contents into his possession for their safe keeping until otherwise directed by court order.

4. That upon Mr Carroll taking possession of the contents of the said safe deposit box, Mr Carroll is to prepare an inventory of the contents of such safe deposit box, and he shall thereafter provide to the Applicant wife and to her solicitors in this matter an itemised receipt for his having so received such contents.

5. That the Applicant wife shall cause a copy of this Order, the Court’s reasons, the Applicant’s application in a case filed on 18 April 2018, the Applicant’s affidavit filed on 18 April 2018 and the inventory and the receipt referred to in Order 4 hereof to be served upon the Solicitors for the Respondent husband at a time not more than one (1) day after Mr Carroll has taken possession of the contents of the said safety deposit box.

6. That this matter be adjourned to chambers.

7. That each party have liberty to apply upon the giving of five (5) days’ notice each to the other.

IT IS NOTED that publication of this judgment under the pseudonym Foster & Foster is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1484 of 2017

MS FOSTER

Applicant

And

MR FOSTER

Respondent

REASONS FOR JUDGMENT

1. I have before me an application in a case filed on 18 April 2018 made returnable today 20 April 2018. The matter was listed before Her Honour Judge Purdon-Sully but has been transferred to my list because of her workload. The application, in effect, is an application for Anton Piller type orders, but as against a third party. The application is expressed to be made pursuant to s.106A of the Family Law Act 1975 (“the Act”), but rather, I consider that there is power for me to make orders of the nature sought in the application in a case pursuant to r.16.01 of the Federal Circuit Court Rules 2001 and s.114 of the Act.

2. When considering the making of an order pursuant to an application seeking Anton Piller type relief, the Court has to be satisfied of a number of criteria. As was held in Anton Piller KG v Manufacturing Processes Ltd (1976) 1 All England Reports 779 at [62] by Lord Denning M R:

   “First, there must be an extremely strong prima facie case.  Secondly, the damage, potential or actual, must be very serious for the Applicant. Thirdly, there must be clear evidence that the Defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such material before any application inter partes can be made.”

3. The decision of Lord Denning MR has been followed in a number of Australian cases including Talbot v Talbot (1995) FLC 92 – 586,

   
   Wei v Huan

   (2015) FamCA 938, and Tassinari v Pesalaccio (2018) FamCA 12. The case of Wei v Huan is on point.  In that case the wife had outlined her concerns that the husband had concealed assets in a safe deposit box. Most of the matrimonial assets were in the husband’s sole name.  The husband had the capacity to transfer funds outside of the Australian jurisdiction and there was found to be a real risk that if an Anton Piller order was not made, the contents of the safe deposit box would be depleted.

4. In the present case, the husband is a (occupation omitted) who carries on a (business omitted) in partnership in (omitted), New South Wales. He is 49 years of age. The wife is 46 years of age. The parties married in 1995 in circumstances where the wife initially was the sole income earner whilst the husband studied to obtain his (omitted) degree. The wife inherited a sum of approximately $387,000.00 from her paternal grandmother’s estate in or about 2011.  The parties separated in April 2016.

5. After proceedings had been commenced by the wife for property adjustment, such initiating application having been filed on 16 February 2017, the husband has made limited disclosure.  Part of the disclosure made by the husband constituted American Express statements. Those statements respectively recorded that on 17 July 2015, the husband paid by American Express the sum of $578.10 to a company called “Guardian Vaults Sydney Pty Ltd” and that a similar payment in the amount of $278.80 was made to that company on 25 July 2016. 

6. In her affidavit filed on 18 April 2018, the wife, in paragraph 7 – 15 inclusive, sets out the reasons why she believes that the husband may be secreting matrimonial property in a safe deposit box held on his behalf by Guardian Vaults Sydney Pty Ltd.  I was informed by Counsel for the wife that the issue of non-disclosure by the husband not only encompasses non-disclosure as was the subject of complaint in correspondence recorded in Annexures F-06 and F-07 to the affidavit of the wife filed on 18 April 2018 but also that there has been no specific response by either the husband or his solicitors in Tamworth to the request for details concerning reference to the Guardian Vault in Sydney as set out in the wife’s solicitor’s letter to Everingham Solicitors dated 25 July 2017. 

7. This particular marriage lasted for 21 years.  It is on the face of it surprising that the assets which have accumulated over that period of time are said by the husband to be limited to an amount of approximately $313,000.00 by way of superannuation and other property totalling approximately $150,000.00.  It is the case that the wife lives in a property registered in her name in (omitted) valued between $400,000.00 and $500,000.00, but again, even if one adds that into the disclosed pool, it is of a surprising result. 

8. Having looked at the relief sought in the wife’s initiating application, I am satisfied that the wife has a strong prima facie case against the husband for relief of the kind sought by her in that initiating application.  I think she has very good prospects of success, and that she has demonstrated that she has a serious question to be tried. I am satisfied that the wife has made substantial contributions toward the acquisition, maintenance and conservation of matrimonial assets during the course of the relationship, both in a financial and non-financial context. The wife deposes to a conversation between her and her husband shortly before separation whereby she asked the husband where an inheritance of hers in the amount of approximately $350,000.00 had gone in which case the husband replied “it is gone”.

9. I consider that the existence of what would on the evidence appear to be a safe deposit box in a vault controlled by a company in Sydney is somewhat suspicious in circumstances where the wife deposes to her having no real knowledge of how the finances of the marriage were dealt with, the wife asserting that the husband had such control.

10. Therefore, I am satisfied, based on the material before me that there is a potentially serious risk that the husband could secrete or otherwise dispose of assets contained in the safe deposit box in Sydney, I am prepared to make orders. 

11. I also consider that, in circumstances where the husband has failed to make proper disclosure as disclosed in the material read by Counsel for the wife, that further supports the proposition that the husband may be trying to secrete assets from his wife and that he has done so for the purpose of preventing her from obtaining a just entitlement by way of property adjustment order.

12. Accordingly, I am satisfied that orders ought to be made enabling the wife to ascertain the contents of the safe deposit box.  I have been handed a draft order by Counsel for the wife, Mr Gordon.  I am prepared to make orders of the kind sought by the wife, but I would ask for the draft to be sent to my Chambers for my further consideration before I make final orders and I stand the matter down for that purpose. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date:  23 April 2018