FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fowles & Fowles (No 6) [2024] FedCFamC1F 554
File number: MLC 8587 of 2015 Judgment of: HARTNETT J Date of judgment: 21 August 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Injunction – Ex parte application by the wife for an injunction to prevent the husband from leaving the jurisdiction – Where the substantive proceedings have concluded – Where the wife seeks the injunction to preserve her capacity to enforce orders made in the substantive proceedings – Where the wife has no capacity to give an undertaking as to damages – Where assets outside the jurisdiction are controlled by the trustee of a family trust – Orders made granting the injunction and consequential Airport Watchlist order. Legislation: Family Law Act 1975 (Cth) s 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.11, 6.06, 11.07
Cases cited: Fowles & Fowles (No 2) [2021] FedCFamC1F 209
Fowles & Fowles (No 4) [2023] FedCFamC1F 819
Fowles & Fowles [2023] FedCFamC1A 238
Fowles & Fowles (No 2) [2024] FedCFamC1A 115
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 9 August 2024 Place: Melbourne Counsel for the Applicant: Mr Sheales Solicitor for the Applicant: Lander & Rogers The Respondent: No appearance required ORDERS
MLC 8587 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FOWLES
Applicant
AND: MR FOWLES
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
9 AUGUST 2024
THE COURT ORDERS, EX PARTE, THAT:
1.This application be heard without notice to the husband.
2.Pursuant to rule 11.07(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and until further order made by the Court to the contrary:
(a)the husband be and is hereby restrained by injunction from departing from the Commonwealth of Australia;
(b)the husband within 4 days of service of these orders upon him deliver up his current passports issued by Australia, Country U, and Country FF, to Division 1 of the Federal Circuit and Family Court of Australia; and
(c)the respondent named MR FOWLES born 1962 be placed on the Airport Watchlist and is to remain on the Airport Watchlist pending further orders made by the Court (“Orders for Restrain of Travel”).
3.It is requested that the Australian Federal Police give effect to this order by placing the name MR FOWLES on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watchlist pending further orders made by the Court.
4.The wife forthwith arrange for the husband to be personally served with sealed copies of:
(a)this Enforcement Application;
(b)the Affidavit in support of this Enforcement Application;
(c)the Orders made this day at the Ex Parte Hearing by the Honourable Court; and
(d)a Court-approved brochure entitled ‘Enforcement Hearings’.
5.Otherwise, the Enforcement Application filed 8 August 2024 be adjourned for hearing before Justice Hartnett on 12 September 2024 at…
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- Case
- [2024] FedCFamC1F 554
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
MLC 8587 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS FOWLES
Applicant
AND:
MR FOWLES
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
9 AUGUST 2024
THE COURT ORDERS, EX PARTE, THAT:
1. This application be heard without notice to the husband.
2. Pursuant to rule 11.07(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and until further order made by the Court to the contrary:
(a) the husband be and is hereby restrained by injunction from departing from the Commonwealth of Australia;
(b) the husband within 4 days of service of these orders upon him deliver up his current passports issued by Australia, Country U, and Country FF, to Division 1 of the Federal Circuit and Family Court of Australia; and
(c) the respondent named MR FOWLES born 1962 be placed on the Airport Watchlist and is to remain on the Airport Watchlist pending further orders made by the Court (“Orders for Restrain of Travel”).
3. It is requested that the Australian Federal Police give effect to this order by placing the name MR FOWLES on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watchlist pending further orders made by the Court.
4. The wife forthwith arrange for the husband to be personally served with sealed copies of:
(a) this Enforcement Application;
(b) the Affidavit in support of this Enforcement Application;
(c) the Orders made this day at the Ex Parte Hearing by the Honourable Court; and
(d) a Court-approved brochure entitled ‘Enforcement Hearings’.
5. Otherwise, the Enforcement Application filed 8 August 2024 be adjourned for hearing before Justice Hartnett on 12 September 2024 at 10.00am.
6. There is liberty to the parties to apply on short notice.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The wife relied upon:(1)her Enforcement Application filed 8 August 2024;(2)her affidavit filed 8 August 2024;(3)Fowles & Fowles (No 4) [2023] FedCFamC1F 819;(4)Fowles & Fowles (No 2) [2021] FedCFamC1F 209;(5)Fowles & Fowles [2023] FedCFamC1A 238; and(6)Fowles & Fowles (No 2) [2024] FedCFamC1A 115.CONSIDERATION The background of this proceeding is lengthy, as set out in the Reasons for Judgment of Bennett J dated 6 October 2023. Only those matters relevant to this enforcement proceeding and the limited orders sought on an ex parte basis are set out hereafter. On 6 October 2023, Bennett J made final property orders (“the final orders”) in the parties’ substantive property proceedings. Those orders were as follows:THE COURT ORDERS THAT:1.As and by way of alteration of property interests, within 90 days, the husband do all things and sign all documents to:(a)repay any loan secured by the property situate at [X Street], Melbourne, Victoria […] and otherwise cause the discharge of the mortgage […] registered to the Westpac Banking Corporation ("the mortgage"); and (b)transfer to the wife all of his rights, title and interest in the [X Street Property] free of encumbrance ("the transfer").2.In the alternative to paragraph 1 of this Order within the lesser period of 30 days from the making of this Order, the husband be at liberty to:(i)repay any loan secured by the [X Street] and otherwise cause the discharge of the mortgage; and (ii)to gift all of his rights, title and interest in the [X Street] property to the wife free of any encumbrance in lieu of and in satisfaction of any order for the transfer of the [X Street Property] to the wife pursuant to paragraph 1 of this Order.3.By way of further alteration of property interests, within 30 days the husband pay to the wife the sum of $1,240,231 ("the Payment").4.Within 90 days the husband pay to the wife all amounts due by way of outstanding spousal maintenance due pursuant to paragraph 2 of the Order made on 5 October 2015 ("the 2015 Order") or paragraph 6 of the Order made on 5 July 2018 (“the 2018 Order”).5.If the whole of any payment, including the Payment and/or arrears due under the 2015 Order and/or the 2018 Order due pursuant to this Order has not been made by the due date for such payment, then penalty interest at the rate specified in the Family Law Rules accrue in respect of so much of the payment as remains outstanding, such interest to be calculated with monthly rests.6.That pending the compliance by the husband with regard to any and all obligations pursuant to these Orders ("the Obligations"):-(a)the wife have sole use and occupation of the [X Street Property] and the husband to pay and be responsible for all mortgage repayments in respect of the loan secured over the title to the [X Street Property], owners levies, body corporate charges, rates taxes and like apportionable outgoings during the wife’s occupation;(b) paragraph 6 of the 2018 Order continue in full force and effect;(c)the wife retains a right of charge against any and all instruments of ownership (including shares) held by the husband in respect of the husband's interest in corporation or entity in Australia;(d)the husband is to execute a Resignation as Director or Secretary with regard to any entity referred to in the preceding paragraph, to be held in escrow pending any default by the husband with regard to such obligations.7.In support of the preceding paragraphs and pending compliance by the husband with regard to the Obligations then (at the option of the wife) the husband do all things and sign all documents (including any documents necessary pursuant to any exercise of power by the Husband as a Director or Trustee herein) as may be required to enable the wife her servants or agents to manage, liquidate or call in for sale the following entities:(a) [L Pty Ltd] […]; and(b) [T Inc].8. The proceeds of sale of any entity referred to above be applied as follows:(a) In payment of the costs commissions and expenses of such sale;(b) In payment of any costs owing to the wife pursuant to this Order;(c)In payment of any other obligations owing to the wife herein by way of property settlement, and lump sum or periodic spousal maintenance (see hereunder);(d)The balance to be held in trust pending further order by this Honourable Court 9.The wife retain all of her rights, title and interest in her share portfolio with [DS Ltd] to the sole exclusion of the husband.10. By way of costs and reimbursement of expenses:(a)The husband be liable for and pay the wife $40,000 on account of her costs of his recusal application;(b)The wife be liable for and pay the husband $20,000 on account of his costs of her application to tender documents;(c)The wife pay the husband $13,750 by way of reimbursement of valuation expenses – such payments to be effected by the husband paying to the wife the sum of $6,250 in 30 days with the effect that the liabilities referred to in (a), (b) and (c) of this Order are not recoverable independently of one another.11.Liberty be reserved to the parties to apply in relation to implementation of this Order.12.Pending full, final and complete compliance with this Order, each party do all acts and things necessary to ensure that his or her address for service, including an email address is notified to the court and service on the party to the email address is deemed to be effective service even if the document is returned marked “Not Delivered” or words to that effect.13.If the husband fails or neglects to comply with paragraph 1(a) and/or 1(b) of this Order, the wife may take a transfer of the title to [X Street Property] into her name without prejudice to her entitlement to enforce any part of this Order.14.In the event that the husband fails to comply with any paragraphs of this Order by failing or neglecting to execute a document necessary to give effect to this Order, a Registrar or any other appropriate officer of the Federal Circuit and Family Court of Australia be, and is hereby, appointed pursuant to section 106A to do all things and execute all documents necessary on behalf of the husband to comply with this Order.15.For the purpose of activating the preceding order under s 106A it is sufficient proof of the husband having failed or neglected to execute a document necessary to give effect to this Order if the solicitor for the wife provides an affidavit by himself or herself deposing:(a)to the necessity for a document to be executed to give effect to this Order;(b)details of how such document was provided to the husband for execution and return;(c)that not less than seven (7) days has elapsed since the document was provided;(d)the husband has not returned the document duly executed - such affidavit to be filed and served on the husband at his address for service as last notified to the court.16.Unless otherwise specified in this Order and save for the purposes of enforcing any monies due under these or any subsequent orders:(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders including but not limited to, their respective bank accounts and motor vehicles;(b)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;(c)Insurance policies remain the sole property of the beneficiary named therein; and (d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders or, in relation to any outstanding credit card balances or personal loan in their name or in which they are personally liable.17.The parties’ applications in relation to child support be and are hereby dismissed for lack of specificity as to orders sought and grounds relied upon and/or without submissions relevant thereto having been made by either party.18.Liberty be reserved to apply in relation to any slip rule application, implementation, enforcement of this Order and any such application may be listed before me in the event that I am reasonably available and without any intervening or preliminary listing of the enforcement application before a registrar or like officer exercising delegated judicial power.19.Otherwise, all extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.