Fowles and Fowles (No 5) - [2018] FamCA 929

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES (NO 5)

[2018] FamCA 929

FAMILY LAW – INJUNCTION – where wife seeks to enjoin husband from travelling overseas during part-heard final property proceedings
FAMILY LAW – INJUNCTION – where husband opposes restraint but has no immediate plans to travel
FAMILY LAW – INJUNCTION- the test for exercising the power to grant an injunction is whether it is both just and convenient to do so – requirement to balance the utility of the order sought by the wife against the possible detriment to the husband and the curtailment of his liberty – regard to uncontroversial facts including husband’s non-compliance with certain orders – inability to make any clear findings about facts in issue
FAMILY LAW – INJUNCTION - the right to travel internationally is not immutable; it must yield in the interests of justice and, in particular, when the court balances competing considerations and finds that the injunctive relief sought “is just and convenient”
FAMILY LAW – CASE MANAGEMENT – where practitioners and parties cannot expect consecutive days for hearing if the estimates of the time for hearing are grossly inaccurate
FAMILY LAW – INJUNCTION – interim injunction granted restraining the husband from travelling internationally
FAMILY LAW – COSTS – irrespective of basis for calculation of any costs claimed (or opposition thereto), any application for costs must be accompanied by a memorandum of itemised costs drawn in accordance with Schedule 3 to the Family Law Rules 2004

The Family Law Act 1975 (Cth)
Bankruptcy Act 1966 (Cth)
International Covenant on Civil and Political Rights
Universal Declaration of Human Rights

Talacko & Talacko (2010) FCAFC 54
Shan & Prasad [2018] FamCAFC 12

APPLICANT:

Ms Fowles

RESPONDENT:

Mr Fowles

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms M Lonergan (Excused from attending)

FILE NUMBER:

MLC

8587

2015

DATE DELIVERED:

16 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

27 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Sheales with Dr Smith

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr T North SC

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

Orders

(1)The wife have leave to make an oral application for orders to restrain the husband from leaving Australia pending the conclusion of these financial proceedings and for the husband to deliver up all of his passports to the Registrar of this Court for safekeeping.
(2)Until further order, the husband be and is hereby restrained by injunction from departing from the Commonwealth of Australia without further order of the Court.
(3)Until further order, the husband’s passports which were deposited in the Registry pursuant to the Order made 5 July 2018 continue to be held in the Registry.
(4)Any party wishing to make an application for costs file and serve a submission of not more than 5 pages within 21 days and, without limiting the costs orders which may be sought, the written submission be accompanied by a memorandum of itemised costs drawn in accordance with Schedule…

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.

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Details

Case: [2018] FamCA 929
Decision Date: 16 November 2018

CaseChat Overview and Summary

In the matter of *Fowles and Fowles (No 5)*, Bennett J of the Family Court of Australia considered an application by the wife for orders to restrain the husband from leaving Australia and to deliver up his passports pending the finalisation of financial proceedings.

The primary legal issue before the Court was whether to grant an injunction restraining the husband from departing the Commonwealth of Australia and to continue holding his passports in the Court's registry. The Court also addressed the procedure for the parties to make submissions regarding costs.

Bennett J granted the wife leave to make an oral application for the restraining orders. The Court reasoned that such orders were necessary to ensure the husband's presence within Australia for the conclusion of the financial proceedings. Consequently, the husband was restrained by injunction from departing Australia without further order, and his passports, previously deposited with the Court, were ordered to remain in the registry for safekeeping. The Court also established a detailed process for the parties to file written submissions concerning costs, including specific page limits and requirements for itemised costs, with a provision for oral submissions or clarification if sought.

Orders

Orders of the court

(1) The wife have leave to make an oral application for orders to restrain the husband from leaving Australia pending the conclusion of these financial proceedings and for the husband to deliver up all of his passports to the Registrar of this Court for safekeeping.

(2) Until further order, the husband be and is hereby restrained by injunction from departing from the Commonwealth of Australia without further order of the Court.

(3) Until further order, the husband’s passports which were deposited in the Registry pursuant to the Order made 5 July 2018 continue to be held in the Registry.

(4) Any party wishing to make an application for costs file and serve a submission of not more than 5 pages within 21 days and, without limiting the costs orders which may be sought, the written submission be accompanied by a memorandum of itemised costs drawn in accordance with Schedule 3 to the Family Law Rules 2004.

(5) Any party who receives a submission seeking costs against them, file and serve submission of not more than 3 pages in response thereto within 21 days which submission must include details of any opposition to the quantum of costs drawn under Schedule 3 to the Family Law Rules 2004.

(6) Following receipt of written submissions in accordance with this Order, my Associate enquire of the practitioners whether either party seeks that the costs issue be listed for oral submissions in reply or for clarification.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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