Johanson & Johanson (No 2)
[2022] FedCFamC1F 1053
Federal Circuit and Family Court of Australia
(DIVISION 1)
Johanson & Johanson (No 2) [2022] FedCFamC1F 1053
File number(s): BRC 6694 of 2017 Judgment of: BAUMANN J Date of judgment: 22 December 2022 Catchwords: FAMILY LAW – PROPERTY – INTERIM – Injunctions Legislation: Family Law Act 1975 (Cth) Cases cited: Johanson & Johanson [2021] FamCA 609
Johanson & Johanson [2021] FedCFamC1F 148
Johanson & Johanson [2022] FedCFamC1A 74
Patton & Patton [2015] FamCA 1083
Tsiang & Wu & Ors (2019) FLC 93-911
Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 11 October 2022 Place: Brisbane Counsel for the Applicant: Ms Minnery Solicitor for the Applicant: Naughton McCarthy Family Lawyers Counsel for the First Respondent: Mr Coulsen Solicitor for the First Respondent: Morgan Mac Lawyers Counsel for the Second Respondent: Mr Gordon Solicitor for the Second Respondent: Wilsons The Family Lawyers ORDERS
BRC 6694 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JOHANSON
Applicant
AND: MR JOHANSON
First Respondent
MS R
Second Respondent
order made by:
BAUMANN J
DATE OF ORDER:
22 DECEMBER 2022
THE COURT ORDERS:
1.That until further order, Mr Johanson be restrained by injunction from selling, disposing of, encumbering, further encumbering or in any way dealing with the property situated at P Street, Suburb Q, in the State of Queensland (“the Suburb Q property”).
2.That pending further order the First Respondent be restrained by injunction from doing any act or thing to cause any of the following to occur without the written consent of the Applicant or by order of the Court:
(a)Causing any payments to be made by S Pty Ltd to the First Respondent or anyone acting on his behalf, except for recept payments of dividends or reimbursement of expenses due to the First Respondent and paid by S Pty Ltd;
(b)Causing any payments to be made from the First Respondent’s United Kingdom bank account to the First Respondent or anyone acting on his behalf except that direct debits may continue to occur pursuant to direct debit arrangements in place as at the date of this Order.
3.That the Second Respondent (in any capacity) be restrained by injunction to not transfer or deal with in any manner any funds held in the following accounts:
(a)T Bank term deposit account number …43;
(b)T Bank term deposit account number …51; and
(c)V Bank account number …19.
4.That the First Respondent and/or Second Respondent forthwith cause to be paid to his solicitors’ trust account all of the proceeds of sale of his sixty (60) ordinary shares in S Pty Ltd and any other money received by from S Pty Ltd (including dividends) (whether received prior to after the date of this Order) with such monies to then be held and not disbursed without the written consent of the Applicant or order of the Court.
5.That otherwise the Application in a Proceeding filed 15 June 2022 be dismissed.
6.That the costs of the parties are reserved to the trial to commence 16 January 2023.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Johanson & Johanson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 16 January 2023, the next instalment of this ongoing litigation between the Applicant, Ms Johanson (“the wife”) and her former husband Mr Johanson (“the husband”) will occur over three days – being in essence an application by the wife for enforcement of a debt she says is payable to her by the husband pursuant to a Binding Financial Agreement (“BFA”) dated 22 January 2014.
The parties separated in February 2013, and the husband has since remarried – his current wife, Ms R (“Ms R”) now also being a party to the enforcement proceedings.
Although the parties are well aware of the background to this unresolved dispute, a history is to be found in the Court’s Judgments published 19 August 2021 (Johanson & Johanson [2021] FamCA 609 and Johanson & Johanson [2021] FedCFamC1F 148) where effectively the Court found the BFA was binding.
An appeal subsequently filed by the husband was dismissed (see Johanson & Johanson [2022] FedCFamC1A 74).
After the appeal was dismissed, the wife filed an Application in a Proceeding on 15 June 2022 seeking a number of orders, including that Ms R be joined as a party; and various injunctions directed to both the husband and Ms R. The Application has been further amended, the most recent variation filed on 7 September 2022, also noting that the wife filed a further amended Initiating Application on 4 October 2022 effectively seeking enforcement of the provisions of the BFA pursuant to s 90KA(b) and (c) of the Family Law Act 1975 (Cth).
After some case management by a Registrar, the matter came before me on 17 August 2022 when the following orders were made, namely:
1.That [Ms R] be joined to these proceedings as the Second Respondent.
2.That the Second Respondent be restrained by injunction from selling, disposing of, encumbering, further encumbering or in any way dealing with the property situated at [P Street, Suburb Q] in the State of Queensland (“the [Suburb Q] property”).
3.That the Second Respondent be restrained by injunction from selling, transferring, disposing of, encumbering, or further encumbering her motor vehicle, being [Motor Vehicle 1] pending further order of the Court or written agreement of the Applicant.
4.That by 4.00pm on 31 August 2022, the Second Respondent file and serve a Response to the further amended Initiating Application filed 9 August 2022, and a Financial Statement.
5.That the costs of the Application in a Proceeding filed 15 June 2022 as between the Applicant and the Second Respondent be reserved.
6.That the First Respondent swear and file and serve a Financial Statement by 4.00pm on 31 August 2022.
7.That by 4.00pm on 31 August 2022, the First Respondent provide to the Applicant all disclosure requested in her correspondence dated 26 July 2022 and any other specific request.
8.That the First Respondent otherwise make disclosure by 4.00pm on 31 August 2022.
9.That the Applicant file and serve any amended Application in a Proceeding by 4.00pm on 7 September 2022.
10.That the Applicant file and serve any affidavit material upon which she intends to rely, by 4.00pm on 7 September 2022.
11.That the First Respondent and the Second Respondent file and serve any amended Response to the amended Application in a Proceeding by 4.00pm on 21 September 2022.
12.That the First Respondent and the Second Respondent file and serve any affidavit material in reply by 4.00pm on 21 September 2022.
13.That the Applicant have leave to issue more than five (5) subpoenae.
14.That the parties’ costs be reserved.
15.That these proceedings be adjourned for Interim Hearing at 9.00am on 11 October 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
16.That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 16 January 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
On 11 October 2022, the interim hearing was conducted with Ms Minnery of Counsel representing the wife; Mr Coulsen of Counsel representing the husband and Mr Gordon of Counsel representing Ms R. I had the benefit of oral submissions and some written submissions.
With the substantive trial imminent and whilst it had been hoped that these Reasons could have been delivered more quickly, rather than three days before Christmas, it is of little utility to now articulate substantial reasons for the dispute heard on 11 October 2022. The exchanges between the Bench and the bar table during the interim hearing, reflected in the transcript, would have made it clear to the wife that the Court was not persuaded to make a number of the extensive injunctions she sought.
The orders that appear at the commencement of these Reasons are, in the exercise of my discretion, sufficient to provide the necessary balance between the wife’s understandable contention that she needs to be protected from an inability to recover the debt due to her (together with interest and costs), which she claims will amount to around $800,000 by the time of the hearing in January 2023, and the rights of the husband and Ms R to continue to manage their financial affairs properly.
Principles
The principles that apply to the exercise of a discretion to grant interlocutory injunctions is well settled. I have, for example considered the statement of principles in Patton & Patton [2015] FamCA 1083 (a single Judge decision of Kent J) and the Full Court decision in Tsiang & Wu & Ors (2019) FLC 93-911.
The wife is unable to offer, because of her financial position at present, an undertaking as to damages – which although not a necessary precondition to every order for an injunction, it is a matter able to be considered in the exercise of my discretion.
Discussion
Although I have previously made findings in earlier contested hearings which the parties may assert touch on issues of credit, I am cautious that the following discussion, delivered in these Reasons less than one month before the final hearing, does not enliven any applications which could disrupt the trial – noting that all parties seek some finality in this matter – which does involve some complexities.
The Court makes the following findings which offer context to the pathway adopted in support of the orders now pronounced, namely:
(a)the injunction made 17 August 2022 from Ms R selling or otherwise dealing with the property at P Street, Suburb Q preserves the equity in that property. According to the affidavit of Ms R, the property is worth $3.9 million with a mortgage at October 2022 of approximately $3,071,410 – an equity of over $800,000. Considering mortgage repayments are being maintained by the husband and Ms R, the debt may now be slightly less. It is appropriate to extend a similar injunction to the husband;
(b)Order 3 made 17 August 2022 to preserve Motor Vehicle 1, which has an estimated value of $70,000;
(c)the application for proposed order 7 would require Ms R to pay to the wife’s solicitors monies which the wife claims the husband paid to Ms R which ultimately have been deposited into bank accounts, under the control of Ms R, in three separate bank deposits in City W or elsewhere. On an interim basis, it is not necessary to audit or trace some of the funds, as that will possibly be an exercise to be undertaken at the trial. However, Ms R in her affidavit at paragraphs 8 to 18 deposes as to a number of transactions, inter alia:
(i)Upon the husband’s retirement in mid-2022 (he having turned 60 years in 2022), the ability then to access some funds otherwise preserved in superannuation arose. She received monies directed to her by the husband, originating, it is claimed, from various sources including:
(A)funds totalling $138,431, in three separate deposits relating to the gross proceeds of sale by the husband of his interest in the entity S Pty Ltd (“the entity”);
(B)a payment of $10,206.70 from the entity being the husband’s personal account balance in his private business account; and
(C)a payment of $529,809.16 being from the offset mortgage account in respect of the Suburb Q property.
(ii)Ms R used $114,086 of these funds as set out at paragraphs 14 and 15 of her affidavit;
(iii)Having made a decision to maximise investment returns, at the time of the interim hearing, Ms R controlled (at least) the following accounts that are easily “traceable” to funds prima facie, being the entitlement of the husband, namely:
(A)T Bank term deposit…43 with an Australian currency equivalent of approximately $307,645;
(B)T Bank term deposit…51 with an Australian currency equivalent of approximately $76,911; and
(C)V Bank account…19 with a balance of $87,500.
(d)the response filed on behalf of Ms R on 6 October 2022 conceded an order restraining her from dealing with these three investments – having a combined balance of approximately $472,056. At least the term deposits are accruing interest;
(e)the wife’s application, and submissions, seek in effect to cause the funds deposited offshore to be brought back into Australia. No consideration as to possible financial disadvantages of doing so was the subject of evidence. Further, the wife seeks to recover the payments totalling $114,086, although no source for recovery, even if appropriate, was identified by the wife. Ms R deposes that $39,086 was paid to a company undertaking repair works to the Suburb Q property – so, in fact, those funds have already been returned to Australia.
conclusion
The basic calculation from the findings above is that the husband and/or Ms R have preserved funds and assets of over $1.2 million – which is more than sufficient to cover the alleged debt.
In circumstances where the husband continues to pay, albeit a reduced amount, for spouse maintenance of $6,000 per month and continues to work profitably as a health professional, in the exercise of my discretion, it is not proper to extend the injunctions further than the areas set out in the orders pronounced today at the commencement of these Reasons.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 22 December 2022
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