GROHL & ACLAND
[2019] FamCA 261
•26 April 2019
FAMILY COURT OF AUSTRALIA
| GROHL & ACLAND | [2019] FamCA 261 |
| FAMILY LAW – PRACTICE AND PROCEDURE – INJUNCTIONS AS TO PROPERTY – Where application for injunctions and ancillary orders restraining husband from dealing with property – Where previous order made by consent that the husband give six weeks’ notice of any intention to deal with the property – Discussion of applicable principles – Where no proper basis for injunction – Where previous orders continued. |
| Family Law Act 1975 (Cth) ss 90RD, 114 |
| Martin & Martin and Ors [2013] FamCA 222 Waugh & Waugh [2000] FamCA 1183 |
| APPLICANT: | Ms Grohl |
| RESPONDENT: | Mr Acland |
| FILE NUMBER: | WOC | 692 | of | 2016 |
| DATE DELIVERED: | 26 April 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 April 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dart |
| SOLICITOR FOR THE APPLICANT: | Sydney Family Law Specialists Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Apex Legal |
Orders
That, pending further order, in the event the respondent husband seeks to sell, transfer, assign, encumber or otherwise deal with or dispose of in any manner his interest in Property E in the state of New South Wales he shall provide the applicant wife with not less than six weeks’ notice in writing of such intention together with:
(a) The full details and particulars of such intended dealing;
(b) Documents to verify the intended dealing; and
(c)Such other information related to the intended dealing as is reasonably requested by the applicant.
Liberty to either party to apply on short notice as to implementation or enforcement of the above order.
That, otherwise, the Application in a Case filed 17 January 2019 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 Grohl & Acland 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: WOC 692 of 2016
| Ms Grohl |
Applicant
And
| Mr Acland |
Respondent
REASONS FOR JUDGMENT
In the context of ongoing de facto property proceedings there arises a discrete issue for disposition.
On 17 January 2019 the de facto wife, the applicant in the primary proceedings, filed an Application in a Case seeking various injunctive and other orders relating to the de facto respondent husband’s interest in Property E, New South Wales.
In summary, the wife sought orders as follows:
a)that the respondent be restrained from selling, transferring, encumbering, assigning or, otherwise, dealing with or disposing of in any manner his interest in the subject property without first obtaining the written consent of the applicant or order of the Court;
b)that in the event that the respondent seeks to sell or, otherwise, deal with the said property he shall provide to the applicant not less than six weeks’ notice in writing of such intention together with details of such intended dealing, documents verifying the intended dealing and such other information as may be reasonably requested by the applicant;
c)that the applicant agrees that she will not unreasonably withhold her consent to the respondent dealing with the property subject to the applicant being provided the notice of information provided for in the previous order and the effect of such dealing not having the effect of defeating the applicant’s entitlements to property and in the event of a proposed sale the following orders be adhered to;
d)that in the event that the applicant and respondent are unable to agree as to any proposed dealing with the property following compliance with the previous orders they have liberty to relist the matter on short notice;
e)that notwithstanding the first order sought the respondent be permitted to sell his interest in the property on the following terms:
i)the applicant and respondent are to be appointed joint trustees for sale;
ii)the listing agent for the property shall be as agreed between the applicant and respondent or in default an agent appointed by the President of the Real Estate Institute of New South Wales with costs to be met by the respondent; and
iii)the sale price at which the property be listed shall be as agreed between the applicant and respondent and in the absence of agreement a price nominated as the fair market value by a valuer appointed by the NSW division of the Australian Property Institute or its equivalent with costs to be met by the respondent.
f)that the applicant and respondent shall:
i)not do or say anything to hinder or prevent a sale of the said property being affected;
ii)sign all documents requested to effect the sale;
iii)instruct such solicitor or conveyancer as they may agree to have conduct of the sale and in default of agreement a solicitor be appointed by the president of the Law Society of NSW; and
iv)not confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the said property or to any commission.
g)That upon settlement of the sale of the respondent’s interest in the property the proceeds of sale be disbursed as follows:
i)in payment of costs, commissions and expenses of the sale and payment of any outstanding council, water rates and levies in respect of the property;
ii)in discharge of any mortgage secured over the respondent’s interest in the property; and
iii)in payment of the balance to a controlled monies account in the name of the applicant and respondent.
h)That the respondent pay the applicant’s costs of and incidental to the application.
In support of her application the applicant relied upon:
a)her affidavit filed 9 January 2019;
b)the affidavit of Ms K as to service by registered post of the present application upon the respondent’s sister Ms L, the co-owner with the respondent of the subject property by registered post; and
c)the affidavit of Mr M filed with leave 15 April 2019 as to attempted service on the respondent’s sister.
For the purposes of the present application the respondent acknowledged that his sister had notice of the wife’s application.
The respondent for his part filed no documents in response, simply seeking that previous orders continue subject to a minor amendment as set out below.
The proceedings between the applicant and respondent were initially focused on the threshold issue as to whether there was a relevant de facto relationship between the parties such as to enliven in this Court’s jurisdiction to make property adjustment orders.
Proceedings as to that threshold question were heard and determined by Carew J with judgment delivered on 14 September 2018 that declared for the purposes of the Family Law Act 1975 (Cth) (“the Act”) that pursuant to s 90RD of the Act a de facto relationship existed between the applicant and respondent ending on 6 March 2016.
On 9 October 2018 the husband filed a Notice of Appeal to the Full Court of the Family Court of Australia. That appeal sought that the orders made on 14 September 2018 be set aside and that the matter be remitted for rehearing. On 12 April 2019 the appellant husband discontinued his appeal. Thus there remains a determination that a relevant de facto relationship existed between the parties such as to ground this Court’s jurisdiction as to property.
In support of the injunctions sought by her and, otherwise, her ancillary relief the wife asserts that the husband during the course of the jurisdictional hearing before Carew J made reference to “other court matters” and “some things that Ms Grohl don’t know about”. In the same proceedings when asked about other court matters the husband responded “none at present”.
The wife asserts that the subject property is worth a significant sum somewhere between $10 million and $30 million as a consequence of potential development.
The property is owned by the husband and his sister as tenants-in-common.
The wife asserts concerns that the husband will deal with the property in a manner that will jeopardise her property settlement because:
a)the husband disputed that this Court had jurisdiction to determine the question of property;
b)the comments referred to above during the jurisdictional hearing; and
c)the fact of his appeal to the Full Court.
Otherwise, the wife asserts that other than the subject property the parties have a jointly owned property at Suburb B having a value of about $700,000.00 and no other assets of substance.
The wife has no objection to the husband selling the property but seeks involvement in the process.
The proceedings pending determination as to jurisdiction were before Hannam J on 18 March 2019. On that day it was ordered by consent:
(1)The Application in a Case filed 17 January 2019 is listed for hearing in the Judicial Duty List at 10.00 am on 15 April 2019 so long as the Applicant has provided notice to be given by 22 March 2019 to the third party who holds an interest in the property which is the subject of the application.
(2)The Respondent is to provide to the wife through the respective legal representatives the details of the third party who holds an interest in Property E sufficient for the applicant to provide notice of these proceedings to that person forthwith or in any event within 24 hours.
(3)Pending further order, in the event the Respondent seeks to sell, transfer, assign or otherwise deal with or dispose of in any manner his interest in Property E in the state of New South Wales he shall provide the applicant with not less than six weeks’ notice in writing of such intention together with:
(a)The full details and particulars of such intended dealing; and
(b)Documents to verify the intended dealing; and
(c)Such other information related to the intended dealing as is reasonably requested by the Applicant.
The husband for his part consents to the orders made on 18 March 2019 to continue and to include the additional word “encumber” by way of amendment.
Injunctions
Section 114 of the Act provides that the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate.
The applicable law is found in s 114 of the Act, and the Full Court decision in Waugh & Waugh [2000] FamCA 1183. The Full Court of the Family Court identified "the fundamental question" as being:
"whether there was any evidence of an intention ... to dispose of any assets pursuant to any scheme to defeat any judgment which ... might be obtained in the substantive proceedings".
In Martin & Martin and Ors [2013] FamCA 222 Cronin J said:
14.In my view, the injunctive principles that apply to family law financial disputes should be seen as much the same as those concerning commercial disputes.
15.Section 114 of the Family Law Act 1975 (Cth) (“the Act”) enables the Court to provide a discretionary remedy. The fundamental principle is that an order should only be made if it is proper. Discretionary though the remedy may be, it is not unfettered and must be exercised according to law (see Stanford v Stanford [2012] HCA 52).
16.The Court must look to the facts of the particular case as well as the governing principles set out in Part VIII of the Act for the guidance of the exercise of that discretion. The facts in this case must fit within those provisions.
17.Counsel for the husband likened the injunction to a Mareva order because it operated to quarantine assets out of which the intervenors sought to be paid to recover a debt allegedly owed to them in their role as creditors of the wife. A Mareva order is a severe remedy, not to be made lightly because of the detrimental effects it has on the party it restricts (see Frigo v Culhaci [1998] MSWSC 383).
18.In Waugh and Waugh (2000) FLC 93-052 the Full Court cautioned against applying broad-brush principles regarding Mareva orders indiscriminately to injunctions over assets in family law disputes (see also Mullen & DeBry [2006] FamCA 1380).
The wife’s only evidence in support of such an order is her bland assertion as to her “concern” that the husband “may” it is to be inferred dispose of the subject property such as may defeat her claim. In the context of the present application the nexus of the subject property to her “claim” is not readily apparent save that it is clearly an asset of the husband.
It is trite to say that injunctive relief as sought by the wife needs more than just concern. At present she has the benefit of an order as to notification sufficient to facilitate any further application being made by her.
It is proper that the present orders continue subject to the amendment agreed to by the husband.
Otherwise, the application will be dismissed.
Orders will be made accordingly.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 April 2019.
Associate:
Date: 26 April 2019
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