Fowles & Fowles (No 2) - [2021] FedCFamC1F 209

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fowles & Fowles (No 2) [2021] FedCFamC1F 209

File number(s): MLC 8587 of 2015

Judgment of: WILLIAMS J

Date of judgment: 19 November 2021

Catchwords: FAMILY LAW – INJUNCTION – Application by the husband to discharge an injunction preventing him from leaving the jurisdiction – Relevant orders made in 2018 to preserve the integrity of the trial process – The substantive proceedings have now been completed – The wife seeks the continuance of the injunction to preserve her capacity to enforce orders ultimately made in the substantive property proceedings – Assets outside the jurisdiction are controlled by the trustee of a family trust and related corporate entities in circumstances where they are not parties to the substantive proceedings – Consideration of relevant authorities – Balancing of the husband’s rights of movement and the length of time the injunction has been in place with the wife’s assertions that she will be unable to enforce orders made in the property proceedings – Timeframe of judgment for property proceedings uncertain – Wife seeks security if the injunction is discharged – Held orders made discharging the injunction and consequential watch list order

Legislation:
Child Support (Registration and Collection) Act1988 (Cth)

Family Law Act 1975 (Cth) ss 4, 79, 114

Cases cited:
BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496

Damberg v Damberg & Ors [2001] NSWCA 87

Fowles & Fowles (No. 2) [2019] FamCA 1027

Fowles & Fowles (No. 5) [2018] FamCA 929

In the Marriage of Saad [1992] FamCA 44

Morrison v Hudson [2006] QCA 170

Division: Division 1 First Instance

Number of paragraphs: 81

Date of hearing: 28 September 2021

Place: Melbourne

Counsel for the Applicant: Mr North SC

Solicitor for the Applicant: Pullos Lawyers

Counsel for the Respondent: Dr Smith

Solicitor for the Respondent: Lander & Rogers
ORDERS

MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR FOWLES

Applicant

AND:
MS FOWLES

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

19 NOVEMBER 2021

THE COURT ORDERS THAT:
1.Paragraph 2 of the Orders made 16 November 2018 and paragraph 5 of the Orders made 12 December 2019, by Bennett J are discharged as from 26 November 2021.
2.The husband’s name be removed from the watch list at all Australian international departure points as from 26 November 2021.
3.The husband be permitted to obtain his passports from the Melbourne Registry of the Court as from 26 November 2021.
4.All extant interim applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 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.

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Details

Case: [2021] FedCFamC1F 209
Decision Date

CaseChat Overview and Summary

The case of Fowles & Fowles (No 2) involved a contentious property dispute between a husband and wife, with the primary issue being whether various trusts and other interests, primarily located in the United States, were property of the husband under s 79 of the Family Law Act 1975 (Cth). The wife claimed that the husband controlled these entities, alleging they were shams or mere puppets, which he denied. The dispute reached the Family Court of Australia, where the wife sought to prevent the husband from leaving Australia during the proceedings. The legal issues revolved around the application of s 114 of the Act to restrain the husband from departing Australia and the validity of the husband's arguments for travel.

The court considered the implications of restraining the husband's freedom of movement, balancing the need to protect the integrity of the court's process against the husband's right to travel. The wife's initial application for an injunction was granted, with the husband ordered to surrender his passports to the Court. The husband subsequently applied for the discharge of these orders, seeking permission to travel to the United States. The court examined the husband's reasons for travel, including attending a memorial and burial service for his father, and weighed these against the necessity of his continued presence in Australia for the proceedings. Ultimately, the court found that the husband's evidence raised concerns about his intentions and compliance with orders, justifying the restrictions on his movement.

In its decision, the court recognised the husband's need to travel for personal reasons but concluded that the restrictions were necessary to ensure the integrity of the court process. The court suspended the injunction to allow the husband to travel to the United States and Country U for a limited period, acknowledging the husband's compelling reasons for travel while maintaining the importance of his attendance in the proceedings. The final orders allowed the husband to travel under specific conditions, reflecting a balanced approach to the competing interests at play.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Prior to commencement of submissions, I was informed by Senior Counsel for the husband that the intervener in the preceding, a firm which had recently been joined as an intervener, was aware of the application, did not seek to participate and would abide the order of the Court.Background The substantive property proceedings between the husband and the wife commenced as a final hearing on 19 March 2018 and continued for 45 days, with evidence being concluded on 10 September 2021. The principal dispute between the parties in the substantive proceedings is whether or not various trusts and other interests primarily located in the United States are property of the husband for the purposes of s 79 of the Family Law Act 1975 (Cth) (“the Act”). The wife asserts that the husband has control of a family trust and various other entities and that the entities are shams or mere puppets of the husband. The husband denies that assertion. On 27 March 2018, on the seventh day of the trial, the wife made an oral application seeking an injunction pursuant to s 114 of the Act, to prevent the husband leaving Australia. On 5 July 2018, when the matter was adjourned for further hearing, the wife made an oral application to renew her application that the husband be restrained from leaving Australia and that he hand up his passports. On that day, Bennett J made interim orders restraining the husband from departing Australia without further order of the Court and for the husband to deliver his passports to the Registrar of the Court. The husband agreed to the surrender of his passports to the Court without admitting the necessity for such an order. On 22 August 2018, the husband filed an Application in a Case seeking the discharge of the order of 5 July 2018 or in the alternative that he be permitted to travel to the United States for specified periods. That application was set down for hearing on 10 September 2018. On that day the application was adjourned. On 16 November 2018, Bennett J handed down her reasons pertaining to the hearings on 27 March 2018 and 5 July 2018 (Fowles & Fowles (No. 5) [2018] FamCA 929 (“Fowles & Fowles (No. 5)”)). In December 2019, the husband made a further application to the Court seeking to dissolve the restraint against him leaving the jurisdiction and for his passports to be returned to enable him to do so. The basis of that application was so that the husband could travel to the United States, his country of origin, for various reasons including attending a memorial and burial service for his father. On 23 December 2019, Bennett J delivered reasons and made orders suspending the injunction to enable the husband to travel to the United States and Country U for a limited period. At paragraph 18 of her reasons in Fowles & Fowles (No. 2) [2019] FamCA 1027 (“Fowles & Fowles (No. 2)”), Bennett J said:The extant Orders of 27 March and 5 July 2018, which operate to restrict the husband’s freedom of movement, were made for the purpose of protecting the integrity of the court’s process, in particular, to secure the continued attendance of the husband whilst his evidence was tested by cross examination and otherwise. It should be apparent from my reasons for decision on 16 November 2018 that the husband’s evidence gave cause for concern vis a vis his intention to divest himself of offices within entities and power over certain assets, his compliance with orders was being criticised but, most importantly, he did not have any firm proposal to travel or pressing reason to travel.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 8587 of 2015
Judgment of:	WILLIAMS J
Date of judgment:	19 November 2021
Catchwords:	FAMILY LAW – INJUNCTION – Application by the husband to discharge an injunction preventing him from leaving the jurisdiction – Relevant orders made in 2018 to preserve the integrity of the trial process – The substantive proceedings have now been completed – The wife seeks the continuance of the injunction to preserve her capacity to enforce orders ultimately made in the substantive property proceedings – Assets outside the jurisdiction are controlled by the trustee of a family trust and related corporate entities in circumstances where they are not parties to the substantive proceedings – Consideration of relevant authorities – Balancing of the husband’s rights of movement and the length of time the injunction has been in place with the wife’s assertions that she will be unable to enforce orders made in the property proceedings – Timeframe of judgment for property proceedings uncertain – Wife seeks security if the injunction is discharged – Held orders made discharging the injunction and consequential watch list order
Legislation:	Child Support (Registration and Collection) Act1988 (Cth) Family Law Act 1975 (Cth) ss 4, 79, 114
Cases cited:	BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496 Damberg v Damberg & Ors [2001] NSWCA 87 Fowles & Fowles (No. 2) [2019] FamCA 1027 Fowles & Fowles (No. 5) [2018] FamCA 929 In the Marriage of Saad [1992] FamCA 44 Morrison v Hudson [2006] QCA 170
Division:	Division 1 First Instance
Number of paragraphs:	81
Date of hearing:	28 September 2021
Place:	Melbourne
Counsel for the Applicant:	Mr North SC
Solicitor for the Applicant:	Pullos Lawyers
Counsel for the Respondent:	Dr Smith
Solicitor for the Respondent:	Lander & Rogers

MLC 8587 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR FOWLES Applicant
AND:	MS FOWLES Respondent

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	19 NOVEMBER 2021