HADLEY & HADLEY

[2019] FamCA 371

FAMILY COURT OF AUSTRALIA

HADLEY & HADLEY [2019] FamCA 371

FAMILY LAW – PROPERTY – Ex Parte Application to Preserve Assets – balance of convenience – usual undertaking as to damages – liberty reserved to each party to apply.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hadley

RESPONDENT: Mr Hadley

FILE NUMBER: MLC 7873 of 2017

DATE DELIVERED: 5 June 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Salce

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Ex-Parte the Respondent

SOLICITOR FOR THE RESPONDENT: Not applicable

Orders

1. Pursuant to section 114 of the Family Law Act 1975, the husband be restrained by injunction from transferring, selling, disposing of and/or further dealing with any matrimonial assets without first obtaining the wife’s consent in writing, including but not limited to:-

   (a) Any shareholdings including but not limited to shareholdings in the entity known as Company B;

   (b) Any funds in any bank account/s in which the husband has a joint or individual interest, save for reasonable day to day living expenses;

   (c)      The real property at C Street, Suburb A in the State of Victoria;

   (d)       The Hadley Self-Managed Superannuation Fund.

2. Pursuant to s 114 of the Family Law Act 1975, the husband be restrained by injunction from further encumbering any item of property in which the husband and/or the wife has a joint or individual interest, and/or increasing the liability/ies of the parties jointly or individually, without first obtaining the wife’s consent in writing.

3. The husband, Mr Hadley, date of birth … 1971 be restrained by injunction from departing from the Commonwealth of Australia until further order of the Court.

4. Mr Hadley, date of birth   1971 be and is hereby restrained from leaving the Commonwealth of Australia.

5. IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the husband on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the husband’s name on the Watch List until further order of the Court.

6. A copy of this order be emailed immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.

7. Within 7 days of this Order, the husband provide to the wife’s solicitors by way of financial disclosure:-

   (a) All documents and records in relation to the sale, transfer and/or disposal of shares in Company B by the husband, including the D Private Equity Fund, from 1 January 2018;

   (b) An explanation and accounting of all sale proceeds received from the husband from the sale of Company B shares since 1 January 2018;

   (c) All documents and records in relation to the husband’s interest in D Private Equity Fund, including all monies or distributions the husband has received from D Private Equity Fund;

   (d) Bank statements for all accounts in the husband’s joint or individual name for the period 1 January 2018 to date.

8. This matter be adjourned before me at 10.00 am on Friday 7 June 2019 (“the adjourned date”).

9. I reserve liberty to the husband to apply urgently to dissolve or vary the injunction or as he may be advised.

10. The applicant serve all relevant documents on the husband forthwith by email and be in a position to prove service on the adjourned date.

11. If served, the husband attend Court on the adjourned date.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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 Hadley & Hadley 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 MELBOURNE

FILE NUMBER: MLC 7873 of 2017

Ms Hadley

Applicant

And

Mr Hadley

Respondent

REASONS FOR JUDGMENT

REVISED EX TEMPORE

1. This matter comes before me as an urgent matter quite late in the afternoon, with the wife, who is the applicant, not being at court to give any viva voce evidence and the application relying upon her affidavit sworn this day.  Mr Salce informs me that the wife gives the usual undertaking as to damages. 

   RECORDED  :  NOT TRANSCRIBED

2. The wife is concerned that the husband may leave the country and/or dissipate assets before the final hearing of this matter where there are relatively modest assets to divide between them.  Of particular concern is a message that she received by text last evening, 4 June 2019, which is ambiguous, but, in its ambiguity, does have an ominous tone to it:

   “I have thought about this very carefully.  The best way to think is how your children will view it in the future.  When everything is known I am confident that at great sacrifice I have done the right thing.  They will understand why I couldn’t communicate and also they will understand why you have done what you have done.  This is the most important thing in our lives.  There is no solution and that is just that. 

   I am resigned to the course of action I must take and hope in the end it will be best for our children.

   We are both good people but different.

   Such is life.

   [Mr Hadley]”

3. This is an ex parte application.  It is a basic concept that parties have a right to know cases which are brought against them and to be accorded procedural fairness.  There are some instances, and the wife says this is one such instance, where that must give way to the greater good of ensuring that the Court’s processes will not be defeated or rendered nugatory, and assets need to be preserved. 

4. It seems to me that the balance of convenience is best served by making the injunction sought for the shortest time possible and giving the respondent husband liberty to apply before that to have the injunction varied or dissolved or as he is otherwise advised.  Accordingly, I will make orders in the terms of the minute which has been handed up.  It will set out in full the usual undertaking as to damages, which Mr Salce assures me has been explained to the wife and is given by her in the context of this ex parte application.

   RECORDED  :  NOT TRANSCRIBED

5. This Order requires provision of information by the husband.  The terms of the Order can be modified on application by the husband.  However, the final hearing is coming up and the information appears relevant and may go some way to alleviating the wife’s concerns about concealment of assets.  Having been sought and made without notice, the obligation imposed by the Order can be re-visited when the matter is next before me. 

6. I will allocate an early return date given that this is an ex parte determination.

7. This Order is made to preserve the assets which will or could also be altered between the parties under s 79 of the Family Law Act 1975 (Cth). This decision does not pre-judge the issue of whether the husband would leave Australia as feared by the wife. It merely recognises that the processes of the Court would be frustrated if he did so.

8. The husband has liberty to apply to vary this Order and any such application can be listed before me urgently if he considers that the return date is too long to wait.

9. The husband should attend Court on the adjourned date.

10. The prohibition against the husband’s travel will be implemented by a watch list order.  This will endure past the adjourned date unless specifically discharged. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 June 2019.

Associate: 

Date:  6 June 2019