Jane and Murray

[2013] FamCA 87

FAMILY COURT OF AUSTRALIA

JANE & MURRAY [2013] FamCA 87

FAMILY LAW – INJUNCTION – there must be some evidence upon which the Court can exercise its discretion to impose an injunction – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Jane

RESPONDENT: Ms Murray

FILE NUMBER: MLC 8147 of 2012

DATE DELIVERED: 24 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Hammett

SOLICITOR FOR THE RESPONDENT: Sam Holt

Orders

1. That the application filed in the response on 27 September 2012 is dismissed.

2. That the applicant for the interim orders pay the respondent’s costs fixed in the sum of $2800 and the payment of such costs be paid out of any entitlement to a property settlement.

3. That all interim applications be otherwise dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jane & Murray 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 MELBOURNE

FILE NUMBER: MLC 8147 of 2012

Mr Jane

Applicant

And

Ms Murray

Respondent

REASONS FOR JUDGMENT

1. This is an application seeking substantive property proceedings arising out of the ending of the parties’ de facto relationship of 12 years.  The application was filed on 6 September by the respondent to the proceedings that I am dealing with today.  In her responding material the respondent sought a number of interlocutory orders.  The only one that I have been asked to deal with today is the second and that seeks that the applicant (otherwise referred to as the husband and he is not), be restrained from selling, disposing, parting with possession, encumbering, mortgaging or further encumbering or mortgaging beyond the existing debts that exist in respect of the credit limits imposed by such encumbrances or mortgages or by diminishing the property in value.  The proposed injunctions relate to:

   (a)      the National Australia Bank account; 

   (b)      Mr Jane’s superannuation benefits, and

   (c)what is described as “the former matrimonial home” at Suburb A.

2. The respondent to these proceedings today simply seeks an order that the injunctive application be dismissed. 

3. The Court has to look not only at the power to make an order but also whether it ought to exercise that power based upon the evidence before it. 

4. There is little dispute in this case that the power exists. As I said in discussion, the power lies in s 114 of the Family Law Act 1975 (Cth) (“the Act”). It is an extremely wide power and it should only be exercised as the section provides, if it is proper to do so. I am satisfied that the power is there.

5. The applicant for these orders has filed two affidavits.  The first was filed at the time that she filed her response.  She swore an affidavit on 25 September 2012 and whilst there is some background to the material, the only paragraph that I can find that is relevant, is one in which she says:

   He has recently withdrawn $300,000 from the $700,000 mortgage account on the “ matrimonial home.”

6. That statement was more or less repeated in a second affidavit filed on 15 November 2012.  Again, looking at the evidence, the only paragraph that is relevant is the fifth one.  It reads:

   The applicant has placed a mortgage over the home we lived in and on 27 July 2012 has drawn $300,000 from that facility and lent it to the company, [J] Proprietary Limited.

7. There is a subsequent sentence which I refuse to take into account on the basis that it has no factual foundation.  It is therefore without any admissible substance. 

8. That is the evidence that the applicant seeks that I rely on to find it is proper to make the order.  We have had some discussion about what the Full Court said in Waugh and subsequently in Mullen v De Bry, but the bottom line is that I have to exercise my discretion in a very serious jurisdiction and make an order that imposes restrictions on parties’ liberties.

9. In Mullen v De Bry the Full Court certainly made clear that the tests set out in the Full Court’s decision in Waugh were not restrictive but there must be some objective evidence that – to use the Mareva injunction concept – the removal of assets or the alteration of assets in some way would have the effect of defeating the prospect that the applicant for the orders would ultimately benefit.  The paragraphs to which I have referred do not give me any indication that that is likely. 

10. As I indicated in discussion, the practitioners presumably sought from each other the reason why the $300,000 was withdrawn.  It seems from what I have been told, an explanation has been given and I am also told that discovery is taking place.  I am told that documents were requested and have been offered but they do not appear to have been examined.

11. In my view, looking at what I indicated as the evidence and the requirements of s 114, it would not be proper for me to make the orders sought. On that basis I propose to dismiss the application.

12. There is a further request made for discovery, but having regard to the fact that the respondent to these proceedings was not put on notice of that and he has the obligation under Chapter 15 of the Rules in any event, it is not appropriate that I make that order today.  The application is therefore dismissed.

13. I have an application now for costs arising out of the reasons I have just given. The power to make an order for costs lies in s 117 of the Act. It provides that each party in proceedings before this Court shall bear their own costs unless there are circumstances that justify departure from that principle.

14. In this case I consider there are justifiable circumstances on the basis that first and foremost, as I have indicated, the evidence was sparse, no doubt based upon a fear as Mr Hammett has described, but there was an open letter on 8 January 2013 indicating that costs would be sought if the matter proceeded. If a Court is going to depart from that principle, however, it must take into account the matters set out in s 117(2A) of the Act. Those matters include the financial circumstances of the parties. It would seem that the applicant’s financial resources are sparse, and I will accept that any person who is living on an aged pension is living as close to the poverty line as the community finds acceptable and the respondent to these proceedings has at least a business and some assets. But it is not just income that determines whether or not people have reasonable financial circumstances.

15. It is quite clear, although not set out in her application, that the applicant is seeking a lump sum of money of some description, and she already has a commitment from the respondent to these proceedings that he has to give her something because he consented to an order back on 26 November for a payment by way of a part-property settlement.  Whether there is more to come or not I am not sure.  In any event I could be satisfied that her financial circumstances are such that she is not impecunious.  She has chanced her arm and lost in circumstances where the open letter was sent.  She is not eligible for legal aid.  This is a case in which I ought make an order for costs because otherwise Mr Jane will be out of pocket.

16. I do not propose to make an order in the terms sought, having regard to the fact that in my view the scale is an appropriate order in this case, but having regard to her current financial circumstances and the fact that the order in November seems really to relate to her circumstances at that time.  I propose to make an order for $2800 costs and that payment is to be stayed until the resolution of the property proceedings to be paid out of her share.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 January 2013.

Associate: 

Date:  13 February 2013