Hemswold and Hemswold

[2020] FamCA 202

FAMILY COURT OF AUSTRALIA

HEMSWOLD & HEMSWOLD [2020] FamCA 202

FAMILY LAW – PROPERTY – restraint on dealing with moneys without prior written agreement of the other parties – temporary restraint on condition that undertaking as to damages is given.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hemswold

RESPONDENT: Mr Hemswold

SECOND RESPONDENTS: Mr Star and Ms Star

FILE NUMBER: CAC 584 of 2020

DATE DELIVERED: 31 March 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 31 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howard

SOLICITOR FOR THE APPLICANT: Averil Foster

SOLICITOR FOR THE RESPONDENT: Farrar Gesini & Dunn

SOLICITOR FOR THE SECOND RESPONDENTS: Dobinson Davey Clifford Simpson

Orders

1. The Husband is restrained from dealing in any manner with the sum of $1 million currently held in the B Trust Business Cash Reserve Trust, account number …76 without prior written agreement of the other parties.

2. The Husband is restrained from dealing with the sum of $495,000 in any manner currently held in the D Account, Westpac account number …49 without the prior written agreement of the parties.

3. The above two orders are contingent on the filing in the Canberra Registry of the Family Court of Australia by 4 pm today the Wife giving an undertaking as to damages that may flow as a result of these restraints.

4. The Second and Third Respondents are to file and serve a Response and a single consolidated affidavit from each witness they intend to rely upon in relation to the interlocutory matters by 4 pm on 3 April 2020.

5. The Husband is to file and serve a Response and a single consolidated affidavit from each witness he intends to rely upon by 4 pm on 6 April 2020. 

IT IS NOTED THAT

1. The Husband intends to commence a claim in relation to child-related proceedings in this matter on that occasion.

IT IS FURTHER ORDERED THAT

1. The Wife is to file and serve any Response to orders sought by the Husband along with any further affidavit material in the form of a single consolidated affidavit from each witness she intends to rely upon by 4 pm on 9 April 2020.

2. The proceedings are adjourned for further hearing in relation to the restraints, the support of the Wife and child related matters and further directions in the matters to 2 pm on 14 April 2020.

3. The proceedings, if the facilities are available, are to be conducted by video link on that occasion.

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 Hemswold & Hemswold 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 CANBERRA

FILE NUMBER: CAC 584 of 2020

Ms Hemswold

Applicant

And

Mr Hemswold

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. A restraint is sought in respect of particular funds referred to in orders 1 and 2 of the interim or procedural orders sought in the Wife's Initiating Application filed 26 March 2020.  The matter has been listed on an urgent basis.  The Husband has not yet had the opportunity to file and serve material and the matter will be adjourned for further determination of the ongoing freezing of the accounts referred to in orders 1 and 2 and what has been referred to as support of the Wife.  On that day it is anticipated that child-related matters will be dealt with as well, as it appears uncontroversial that the Husband has not spent time with the child of the relationship since separation occurred in February.  It will also be necessary to give further directions to deal with interlocutory matters and the general preparation of the matter.

2. In relation to the restraint, only limited material is before the Court today and I note that the nature of that material is such that it does not incorporate the Husband's position in relation to the matter.  He opposes a restraint.  Options were given on the indication that a restraint would be made for the relisting of the matter on 3 April or 14 April and he has indicated that 14 April is the preferable course of action for him. 

3. The restraint occurs in the circumstances where the Husband operates a business that was participated in by all of the parties in some form or another until recently. 

4. It appears on the material produced by the Wife that the Second and Third Respondents have in some way functioned as a funding entity for the operation of the business and have also provided professional services by way of accounting for the business.  The Wife has provided some professional services to the business as well. 

5. Following the ending of a relationship the Wife complains that she has been denied adequate disclosure in relation to transactions involving the business.  In particular, she claims that there have been a number of transactions conducted by the Husband whereby he has transfer the sum of $1 million into and out of various accounts.  There is an additional sum of $450,000 which she says has also been transferred and she denies knowing particularly where that sum of money has come from.  While the $1 million, it appears, has operated in a circular fashion on two occasions to return to whence it has come from, the combination of the movements of those moneys and the combination of the lack of disclosure, or alleged lack of disclosure, are such as to justify a temporary restraint on condition that an undertaking as to damages is given. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 31 March 2020.

Associate: 

Date:  1 April 2020