Janvier & Domas
[2024] FedCFamC1F 687
•11 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Janvier & Domas [2024] FedCFamC1F 687
File numbers: HBC 523 of 2023 Judgment of: MCGUIRE J Date of judgment: 11 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by B Bank for removal of a Mareva Injunction – Where the parties are engaged in financial and children’s proceedings – Where ex parte orders were made by the Court on 4 September 2024 freezing two of the wife’s bank accounts – Application for removal of Mareva Injunction granted in circumstances where the Court is satisfied that there are two distinct customers and that the two bank accounts are not held in the name of the wife Legislation: Evidence Act 1995 (Cth) s 140 Cases cited: Cardile v LED Builders Pty Limited (1999) 198 CLR 380; [1999] HCA 18 Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 4 November 2024 Place: Hobart Solicitor for the Applicant: Litigant in Person Counsel for the Respondent: Mr McKenna Solicitor for the Respondent: Fumens Lawyers Counsel for the Third Party Objector: Ms Claassen Solicitor for the Third Party Objector: Dentons Australia Limited ORDERS
HBC 523 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JANVIER
Applicant
AND: MS DOMAS
Respondent
B BANK
Third Party Objector
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
11 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Order of this Court made 4 September 2024 pursuant to rule 5.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and made ex parte, freezing two bank accounts ending in “…4 and …0” held in the name of Ms E born in 1983 be discharged.
2.Any documents produced by B Bank of Australia as a result of the Mistaken Production Orders in respect of the accounts set out in Order 1 above be safely destroyed by the Registry of this Court.
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 of Janvier & Domas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J:
APPLICATIONS
The interlocutory application is brought by a third party objector namely B Bank in respect of ex parte orders made by me on 4 September 2024 providing for a freezing order (Mareva Injunction) in respect of two C Bank accounts ending “…4” and “…0” held in the name of the respondent.
Contemporaneously the husband issued subpoena to B Bank for the production of documents in respect of accounts held by the Bank in the name of the wife, Ms Domas. Objections were taken to that subpoena on the basis that the breadth of the subpoena captured a third party carrying the same Christian and surname as the wife and with an identical date of birth. Those objections were heard and disposed of by a Senior Judicial Registrar on 25 October 2024 in upholding the of the objections insofar as they are directed to the asserted third party. The issue of the lifting of the freezing order was listed before me on the 4 November 2024.
The husband, Mr Janvier, appears self-represented. He has some command of the English language and is particularly adept at written English but required at an interpreter in respect of spoken English.
The wife was represented by Mr McKenna of counsel. B Bank was represented by Ms Claassen of counsel.
The discrete issue for the Court’s consideration was the application by the third party objector being B Bank to lift the freezing order only in respect of accounts held by the third party, as distinct from accounts held by the Bank for the wife, also with the same name.
The wife did not oppose the application.
The husband did oppose the application and provided extensive written submissions supplemented by further submissions given orally and in writing on the day of the hearing.
THIRD PARTY OBJECTOR – B BANK ARGUMENT
The third party objector (“B Bank”) relied on affidavit of an employee, Ms D sworn 22 October 2024.
B Bank argues that upon receipt of the subpoena issued on behalf of the husband, a two (2) point identification check was conducted in respect of B Bank’s books and records in accordance with usual practice. That search identified four (4) customer profiles held by B Bank in the name of Ms Domas of a birthdate in 1983 a total of 15 accounts were identified under the Customer Profile however, a review of the books and records held by B Bank confirmed the following:
(i)that the bank has two (2) customers both having the same name and the same date of birth in 1983 and with differing Customer Profiles.
A closer review of personal details and identification records held by B Bank (including C Bank) for each of the Customer Profiles for the name Ms Domas (DOB 1983) included the following:
(i)different postal addresses for the two profiles;
(ii)different email addresses for the two profiles;
(iii)different phone numbers recorded for the two profiles;
(iv)review of true copies of passport details including photographs for the two profiles confirming different document numbers;
(v)review copies of driver’s licenses held for each of the two profiles confirming that:
(a)each of the driver’s licenses were issued in a different state;
(b)the addresses shown on each of the driver’s licenses is in a different state;
(c)the signature shows on each of the driver’s licenses are different; and
(d)the photographs shown on each of the driver’s licenses are noticeably different.
The deponent, Ms D, concludes that the Bank holds Customer/Profiles of two different real persons carrying the same name with the same birthdate. She deposes to being confident that the accounts are held by different people “and are not the same person”.
B Bank claims, therefore, that the freezing order made 4 September 2024 mistakenly captures the accounts held by the “wrong [Ms Domas]”.
Counsel for B Bank alerts the Court to a leading authority being Cardile v LED Builders Pty Limited[1] where the Court emphasised that:
…There are significant differences between an order protective of the court’s process set in train against a party to an action, including the efficacy of execution available to a judgement creditor, and an order extending to the property of persons who are not parties and who cannot be shown to have frustrated, actually or prospectively, the administration of justice. …
[1] (1999) 198 CLR 380 at [50]; [1999] HCA 18.
THE HUSBAND’S ARGUMENT
Generally, I understand the husband to argue that prima facie there is evidence by reason of the precise name and date of birth so as to satisfy the Court on the balance of probabilities that the two different profiles held by B Bank are in fact the same person namely the wife, Ms Domas. The inference flows from this submission, consistent with the evidence put by the husband at the ex parte hearing, that the wife, Ms Domas, has a history and propensity for movement of monies between real people and offshore.
Secondly, the husband argues a coincidence of residential address for Ms Domas in that the wife’s testimony for recent intervention order proceedings she claimed that the husband had mentioned “[Suburb F]”, during a phone call with their daughter, X. The husband disputes this assertion. The husband cites the coincidence of the address of a Mr G as “[Suburb F]” it follows that the husband argues that “[Ms Domas] aligns with her own subconscious knowledge and suggests that she may have direct connections to the frozen accounts”.
Thirdly, the husband argues that B Bank has failed to disclose email communications between the wife Ms Domas and C Bank (a subsidiary of B Bank) on the grounds of these accounts belonging to “another [person of the same name]”. He asserts that this lack of transparency by B Bank is in itself evidence of the asserted two people being the same and the one real person.
Finally, the husband emphasises that over the past eight years of the wife’s residency in Australia she has consistently used a complex foreign signature on documents even when an English name was used. He says that he himself would not be able to recognise the wife’s English signature. He questions, therefore, the reliance of B Bank on English signatures so as to apparently differentiate between the two people of the same name.
CONSIDERATION
The issue that I am to determine is a factual one with the standard of proof being one of on the balance of probabilities.[2]
[2] The Evidence Act 1995 (Cth) (“the Evidence Act”) s 140.
Relevantly, the third party objector (B Bank) is not an interested primary party in the property and children’s issues yet to be tried by this Court. As such, it has no reason to be otherwise than objective and transparent.
The arguments mounted by the husband are understandable in the sense of his suspicions in respect of the financial activities of his estranged wife.
His arguments, however, rest on suspicion, supposition and inference. He provides no facts of substance.
To the contrary, the disinterested Bank objectively offers details of its investigations showing what is indeed a coincidence of accounts held by apparently two real persons carrying the same names and date of birth. The evidence, however, includes evidence of photographs from passports and drivers licence required for the establishment of the bank accounts supplemented by different postal addresses, email addresses and telephone numbers. The signatures are observably different. The driver’s licenses were issued in different states. The passports hold different document numbers.
Consistent with s 140 of the Evidence Act I should consider the gravity of the ramifications of a continuing order should there be a relevant third party captured by the existing freezing order. The ramifications for that third party are obvious and onerous.
In consideration of the affidavit of Ms D find that the investigations by B Bank on receipt of the relevant subpoena and injunctive freezing order have been proper and extensive and, on the balance of probabilities, I accept the conclusions therein that there are two distinct customers of B Bank carrying the same name and with the same date of birth in 1983. As a result, the freezing order has mistakenly captured a disinterested third party and where the granting of a freezing order requires a high degree of caution on the part of the relevant judicial officer then I find that the freezing order should be set aside and vacated in respect of the accounts relevant to the third party Ms E. I note that the order remains in force and that, at this stage, is not contested in respect of the wife, Ms Domas.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 11 November 2024
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