Hughes and Beddoe

[2013] FamCA 690

FAMILY COURT OF AUSTRALIA

HUGHES & BEDDOE [2013] FamCA 690

FAMILY LAW – Injunctive application pending contempt application – Little or no prospect of success of substantive application for contempt justifies the exercise of discretion against making the order for the injunction

Family Law Act 1975 (Cth)

APPLICANT: Mr Hughes

RESPONDENT: Ms Beddoe

FILE NUMBER: ADC 845 of 2010

DATE DELIVERED: 5 July 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 5 July 2013

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: David Hoskins Legal

Orders

1. That the application in a case filed 20 June 2013 is dismissed.

2. That the reasons this day be transcribed.

3. That the application for contempt filed by the applicant on 20 October 2012 is adjourned to the Judicial Duty List at Adelaide at 10.00am on 9 August 2013 (unless the parties are otherwise advised of an alternate date).

4. That there be no order for costs.

5. That the applicant file and serve any further affidavit upon which he intends to rely in respect of the contempt application by 4.00pm on 24 July 2013.

6. That the respondent file and serve any affidavit upon which she is so advised to file by no later than 4.00pm on 6 August 2013.

7. That no party file any further material in respect of the said contempt application other than in accordance with these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hughes & Beddoe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 845 of 2010

Mr Hughes

Applicant

And

Ms Beddoe

Respondent

REASONS FOR JUDGMENT

1. Mr Hughes (whom I will describe in these reasons as “the applicant”) and Ms Beddoe (to whom I shall refer as “the respondent”) had been litigating since 2010.  The Court file is in eight volumes. 

2. On 20 June 2013, the applicant filed an application in a case seeking an order that any money left over from the sale of a property in B Town be left with the property’s conveyancer until a completion of a contempt application against the respondent. 

3. The applicant has represented himself throughout these proceedings, and therefore it is understandable that the wording of his application for orders may not necessarily be in language that lawyers can quickly grapple with.  And indeed, it requires some interpretation.  In essence, he seeks an injunction against the respondent from accessing her entitlement until further order. 

4. In respect of the contempt application, I propose as a result of things that I have earlier dealt with this morning, to list that before a judge other than Dawe J in a judicial duty list in a couple of weeks time. 

5. In the proceedings before me today, Mr Jordan of counsel appears for the respondent.  The respondent has not filed anything, and whilst that may be a little dangerous, the reality here is that I am being invited to determine the matter on the basis of the evidence provided by the applicant.  The respondent has submitted that there is no basis to make the injunctive order. 

6. As a matter of background, the matter came before me today by an order made by Registrar Paxton on 25 June.  The Registrar directed that the applicant’s application be listed before me.  No other directions were made other than that the substantive issues be also listed.  I have indicated I will send them off to be heard. 

7. It is perhaps also sad to say that the history of this dispute could not be gleamed from the applicant’s affidavit.  To assist him, what I have endeavoured to do is to read a little bit more widely than I should so that I could understand what this case was about. 

8. On 7 May 2012, Fowler J made consent orders between the parties.  I hesitate here to say that those orders whilst made by the Court and enforceable by the Court, were drawn by the parties.  It may very well be in the fullness of time that the parties may be seen to have been the masters of their own drafting.  Under the orders of Fowler J, the applicant was to transfer to the respondent his interest in a home in B Town.  The applicant was to discharge an existing mortgage.  The order provided that if the mortgagee declined to discharge  the mortgage, then upon the request of the respondent, the applicant was to sign documents for the sale of the property, and upon that sale, the proceeds were to be paid to her.  It is those proceeds that the applicant seeks now to injunct. 

9. His Honour also made orders by way of a declaration that the applicant was the beneficial owner of a property in Country C and the respondent was to remove the caveat on the certificate of title to the Country C property.

10. That too has become a part of the contempt application against the respondent which the applicant filed on 23 October last year.  In addition to an allegation that the respondent has failed to remove the caveat, there is also an allegation that the respondent has failed to give effect to paragraph 6 of the orders of 7 May 2012.  Under the order, the respondent was to effect the claim for insurance on property that was said to belong to the applicant and the proceeds were to have been paid to him.  There are problems of proof ahead for the applicant in relation to those two issues, and I have already mentioned that this morning.

11. Whilst I am clearly not dealing with the contempt application today, it is relevant for the purposes of the exercise of discretion in an injunctive application, for the Court to look at whether or not it ought to exercise its discretion, bearing in mind the merits of the substantive issue which might give rise to a judgment. 

12. On 21 May 2013, the Court record discloses that Dawe J declined to deal with an oral application by the applicant for an injunction in relation to those same proceeds of sale of the B Town property.  I have concluded from the way in which her Honour drew the order that she was not refusing to make the order, but rather declining to hear the application.  There is therefore no basis to raise res judicata principles.

13. The affidavit in support of the discrete application was filed on 21 May.  It is brief.  It refers to the fact that there is a contempt case, to quote Mr Howell’s words, “running against the mother”.  He goes on in his affidavit to say that his personal possessions must be returned to him, or if damaged by the fire, he must be compensated for them from the home and content insurance by CGU who presumably are the insurers.  He says that the Registrar has given him leave to issue a subpoena to the insurance company for information, and he has apparently inspected that material.

14. He says that the insured stated that many of the items in the garage including tools which had been destroyed by the fire belonged to him.  He says that these items should have been claimed for by the respondent and/or replaced; she has either kept the money or spent it.  That is highly speculative and at this stage I am not in a position to say what the respondent’s position is because she has not filed any material.  The applicant goes on to say that the respondent chose to ignore the Court order on three occasions with regard to his personal belongings, and he therefore brought the contempt application.  That too, as I have indicated, may be a little presumptuous.  He then says that the respondent has made numerous statements saying she has no money, yet she seems to be able to afford lawyers. 

15. It is the submission of the counsel for the respondent that there is no suggestion that the respondent will not comply with Court orders. 

16. Finally, the applicant said that he had been without his personal property for over three years and the respondent had refused to return or comply with the Court orders, and the only way he could get those items back was by doing what he has done. 

17. Again, I hesitate to delve too far into that issue but I question whether a contempt application is the appropriate way to go, or for that matter seeking the injunctive relief that he has.  There is an alternate route and he might do well to get some legal advice about all of that. 

18. As with many applications by unrepresented litigants, the Court is obliged to discern what it is that the applicant seeks and then to see whether the jurisdiction and power of the Court can be exercised if indeed the affidavit evidence supports such relief.  Here, the applicant seeks injunctive relief on the basis that if he is successful in his contempt application against the respondent, he would want the respondent’s money controlled so that any compensation judgment could be executed.

19. There is a question as to whether or not, even on the basis of a finding of guilt on the contempt application, the applicant would achieve what he seems to be seeking out to do. 

20. The jurisdiction to make any injunctive order must come from within the Family Law Act 1975 (Cth) (“the Act”). Section 39 provides that a matrimonial cause may be instituted in this Court. Proceedings may be instituted if either party is an Australian citizen. It appears that the respondent is and was on the date the application was filed. Section 4 of the act defines matrimonial cause relevantly as proceedings between the parties to a marriage and that certainly applies here for an injunction in circumstances arising out of the marital relationship, or alternatively proceedings in relation to current, pending or completed proceedings of the nature of the injunctive relief sought.

21. The jurisdiction and power to make orders can clearly be seen in this particular case. Section 114(1) of the Act provides that a court exercising jurisdiction in proceedings relating to injunctive relief may make such order as it considers proper with respect to the matter relating to an injunction in relation to the property of a party to the marriage.

22. Section 114(3) provides that in proceedings other than that just mentioned, the Court may grant an injunction including in and for the aid of the enforcement of a decree in any case in which it appears just and convenient to do so.

23. In simple language, this is a Mareva type order, and in those types of cases, the applicant bears the onus of demonstrating by real evidence that a refusal to make the order involves a risk that judgment in his favour would remain unsatisfied because of concealment or dissipation of assets, but also that the balance of the convenience requires the making of the order. 

24. Here the s 79 power has been exhausted, and the applicant appears to be seeking contemplation rather than the alteration of any interest in the respondent’s property. 

25. In my view, the applicant has to show that not only is there evidence that he would not be able to recover a judgment because of some conduct by the respondent, but also that there was some probability that he would recover an amount that is within the jurisdiction of the Court to grant.  There must be, in the former situation, some real evidence of a danger of the removal of assets with an intention to thwart the applicant’s entitlement.  Here, the applicant certainly makes that assertion.  But the evidence does not support his assertion.  This is not a case where I can simply rely on his belief.  There must be some objective evidence that I can at least rely upon to find that the balance of convenience favours him.  There is no entitlement here, or likelihood in my view, that the applicant will succeed in relation to the contempt application. 

26. In addition, the balance of convenience militates against such an injunction being granted because of the matters that I have just mentioned. 

27. Accordingly, in the exercise of my discretion, the application fails and it is accordingly dismissed.  I propose otherwise, as I earlier indicated, to place the contempt application in the judicial duty list.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 July 2013.

Associate:

Date:  18 July 2013