Henson & Marlin (No 3)
[2024] FedCFamC1F 657
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Henson & Marlin (No 3) [2024] FedCFamC1F 657
File number(s): BRC 10186 of 2020 Judgment of: HOGAN J Date of judgment: 19 September 2024 Catchwords: FAMILY LAW – INTERIM PROPERTY – Where the parties consented to the removal of caveats held by the Applicant against all real property – Where the Applicant sought that the Respondent be restrained, unless with the consent of the Applicant, from further encumbering the properties, giving any notice about or seeking or consenting to any order that affects any real property, making any agreement affecting any real property or dealing with them in any way – Where the Respondent opposed the injunction sought – Where an injunction is to issue in the terms roughly sought by the Applicant Legislation: Family Law Act 1975 (Cth) Cases cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Broadcasting Corporation & O'Neill [2006] 227 CLR 57; [2006] HCA 46
Division: First Instance Number of paragraphs: 21 Date of hearing: 18 September 2024 Place: Brisbane Counsel for the Applicant: Mr Drysdale of King’s Counsel with Mr Gordon of Counsel Solicitor for the Applicant: KLM Solicitors Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: Hirst & Co ORDERS
BRC 10186 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HENSON
Applicant
AND: MR MARLIN
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS BY CONSENT THAT:
1.The Applicant shall remove the caveats lodged on all real property within seven (7) days of the date of this Order at her expense.
IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT:
2.Upon the removal of caveats pursuant to Order 1 herein, and until further order, the Respondent is hereby restrained by injunction, unless otherwise with the consent of the Applicant, with such consent not to be unreasonably withheld, from:
(a)encumbering any real property/ies owned by him personally, or taking any steps to cause any corporate entity under his control to encumber any real property, without the prior written consent of the Applicant; and
(b)giving any notice or seeking or consenting to any order, either in his personal capacity or in his capacity as a director of any entity (either in relation to that entity itself or in its capacity as corporate trustee of any trust), that affects any real property/ies; and
(c)making any agreement, either in his personal capacity or in his capacity as a director of any entity (either for that entity itself or it acting in its capacity as the corporate trustee of any trust), affecting any real property/ies; and
(d)otherwise dealing with any real property/ies, either in his personal capacity or causing any corporate entity (whether for that entity itself or in its capacity as trustee of any trust) to deal with any real property/ies in any way.
3.The parties have liberty to apply on the giving of 24 hours’ notice in writing.
IT IS NOTED THAT
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Henson & Marlin has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
At the conclusion of the trial yesterday, the Applicant sought that a number of interim orders be made pending the delivery of Judgment in the matter.
The parties agreed that an order should be made requiring the Applicant to remove the caveats lodged on all real property within seven days at her own expense. The reference to real property is a reference to real property owned by the Respondent personally or by corporate entities under his control, whether in their own capacity or in the capacity as trustee of a Trust, in respect of which the Respondent is the appointor and primary beneficiary.
The Applicant also sought, though, that the Respondent be restrained by injunction until further order, unless otherwise with her consent (on the basis that such consent not be unreasonably withheld) from:
(a)encumbering any real property without her consent; and
(b)giving any notice about or seeking or consenting to any order that affects any real property; and
(c)making any agreement affecting any real property; or
(d)otherwise dealing with any real property in any way.
The Respondent opposed the making of any injunction.
The parties have, today, been advised – in the context of a query made by the Court about the likely receipt of updated capital gains tax liability information – that I intend to finalise this matter by making final orders and delivering Reasons for Judgment on 18 October 2024.
Under the Family Law Act 1975 (Cth) (“the Act”), the Court has power to grant an injunction in a de facto financial cause where it is necessary to do justice or where, in aid of enforcement, it appears just or convenient to do so.[1] A de facto financial cause is defined in s 4 of the Act as including proceedings between the parties to a de facto relationship with respect to the distribution of their property upon the breakdown of their relationship or any other proceeding relating to concurrent or pending proceedings of the type just mentioned.
[1] See s 90SS(1)(k) and s 90SS(5) of the Family Law Act 1975 (Cth).
The power invested in the Court to grant an injunction necessary to do justice, or where it appears just and convenient to do so, attracts the operation of particular principles derived from equity courts, although authority makes clear that the term "injunction" takes its colour from the statutory regime in question and the term "just and convenient" is not at large.[2] Here, s 90SS(1)(k) of the Act specifically provides that the Court may make any other order or grant any other injunction which it thinks necessary to make to do justice. Consequently, it is to such a test that regard must be had.
[2] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199.
Further, the Court should have regard, in determining whether or not to grant an injunction, to whether there is a serious issue to be tried: that is, whether an applicant for an injunction has established a prima facie case for the substantive relief sought and, if there is a serious question to be tried, then to turn to assessing where the balance of convenience lies.[3]
[3] Australian Broadcasting Corporation & O'Neill (2006) 227 CLR 57.
The trial involved the parties’ competing contentions about:
(a)whether or not the Court would be persuaded, as is required by s 90SM(3) of the Act, in the circumstances of this case, that it is just and equitable to make an order altering their interests in property – with the Applicant contending that the Court would be so satisfied and the Respondent contending that it would not be so satisfied; and
(b)if persuaded that it is just and equitable to make an order altering interests in property, the terms of any order to be made, having regard to the matters set out in s 90SM(4) and s 90SF(3) of the Act – with the Applicant contending that the Court would be persuaded, having regard to the relevant statutory considerations, that orders which would ensure that she received property valued at 40 per cent of the total net value of the property of the parties are orders which are just and equitable, and the Respondent contending that the orders which are just and equitable, if the Court was otherwise persuaded of the matter required by s 90SM(3) of the Act, are orders which would see the Applicant receive property valued at 20 per cent of the total net value of the property of the parties.
It is clear that there is a serious question to be tried as between these parties.
It is, I consider, sufficient for the purposes of the disposition of this application, in the circumstances in which it falls to be disposed of, to record that the total net value of the property of the parties may be regarded as being somewhere between about $14,500,000 and $25 million. It is also sufficient to note that, if orders were made to accord the Applicant property valued at 40 per cent of this, she would receive property valued at between about $5,800,000 and $10 million. If orders were made to accord her property valued at 20 per cent of this, she would receive property valued at between about $2,900,000 and $5 million.
The Applicant's property has a total gross value of about $893,708. She has an entitlement to superannuation of $92,211. She has received $290,051 by way of partial property settlement and has liabilities of about $350,000, exclusive of amounts owing to the children's school and extracurricular centre. Whilst there is disagreement about whether certain of the Applicant's liabilities should be deducted from the total gross value of the properties of the parties, for the purpose of considering the application, I have deducted the same when determining – for the purpose of this application, I emphasise – the range of the total net property of the parties.
On these bases, if orders were made for the Applicant to receive property valued at 40 per cent of the total net value of the property of the parties, she would have to receive property valued at between – very roughly speaking, and I, again, emphasise for the purpose of this application and no other purpose – about $4,800,000 and $9 million. If orders were made for her to receive property valued at 20 per cent of the total net value of the property of the parties, she would have to receive property valued at between nearly $2 million and about $4 million.
Counsel for the Applicant submitted, in essence, that the Court would be persuaded that the balance of convenience favours the making of the orders sought by her and, I infer, that making such orders is necessary to do justice because:
(a)given the Respondent’s past conduct in failing to deposit a cheque of more than $600,000 for a number of months, refusing to comply with his obligation to provide the Applicant with a copy of a contract for the sale of one of the properties (despite receiving advice that he was required to do so), asserting that he could not complete the contracts for sale of two properties because of the existence of caveats despite the Applicant advising that the same would be removed in order to facilitate settlement of the same, the Court would have no confidence that the Respondent may not act so as to adversely impact the applicant's capacity to receive the fruits of whatever judgment may be made; and
(b)given his conduct, the Court would have no confidence at all that, absent orders in the term sought by the Applicant, the Respondent would keep her informed about his actions vis-à-vis real property pending the finalisation of the matter such that, absent the same, there is a very real risk that she would be deprived of the capacity to receive whatever property it is ultimately ordered that she receive.
Counsel for the Respondent submitted, in essence, that the Court would not make the orders sought on behalf of the Applicant because to do so would impede the Respondent's capacity to deal with, amongst other things, the actions of the Australian Taxation Office in seeking the payment by an entity under his control of outstanding taxes, as well as the payment by him of his outstanding personal taxes.
It was also submitted, in essence, that the imposition of the orders sought by the Applicant would prevent the Respondent from seeking access to credit so as to manage the outstanding tax liability situation and other debt issues with the consequence that an entity under his control may be wound up. It was also submitted, in essence, that the terms of the orders sought by the Applicant are too wide, given their terms and reference to all of the Respondent's real property, despite the Applicant seeking only the transfer of real properties described as:
(a)1 DD Street, Suburb FF; and
(b)1 GG Street, Suburb FF; and
(c)2 GG Street, Suburb FF; and
(d)2 DD Street, Suburb FF.
Having regard to the evidence, which I have just heard, and the submissions made on behalf of each of the parties, I am persuaded that the balance of convenience favours the making of orders roughly in the terms sought by the Applicant and that the same are necessary to do justice. Such orders will not in my view, improperly prevent the Respondent from dealing with real property as they will enable this to occur provided that he has the Applicant's consent to such conduct. Such orders will also provide that the Applicant does not unreasonably withhold her consent if the same is sought by the Respondent.
I also note that when, relatively recently (namely, in August of this year) the Respondent sought that the Applicant agree to removing a caveat lodged over one of the properties so that he could borrow funds against it for purposes which included, as I appreciated it, paying lawyers and paying experts who had been engaged for the purposes of the proceedings, and given his evidence in his most recent affidavit with the intention of discharging his liabilities to the Australian Taxation Office and the liabilities of entities under his control, the Applicant consented to that course of action.
In addition, the parties will have the opportunity via a liberty to apply clause on the giving of 24 hours’ notice in writing to return the matter to Court should any issue arise which cannot be appropriately resolved as between them. In that way, I am confident that, should such an impasse arise, the matter will be able to be brought back quickly before me and I can give attention to it.
Absent restraints imposed upon the Respondent by orders of an injunctive nature, I am not at all confident that he would keep the Applicant appropriately informed about his financial situation pending the finalisation of the matter; I consider that, absent such orders, there is a very real risk that her interests may be in some way irreversibly adversely affected.
Consequently, I am satisfied that orders restraining the Respondent generally in the manner sought by the Applicant are necessary to do justice.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 28 October 2024
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