Josselyn and Josselyn and Ors

In *Josselyn and Josselyn and Ors*, Watts J of the Family Court of Australia considered an application for interlocutory injunctions concerning the Josselyn Family Trust. The parties involved were the wife (1st respondent), the husband, the husband's brother Mr N Josselyn (3rd respondent), and the trustee company M Pty Ltd (2nd respondent). The dispute arose in the context of family law proceedings, with the wife seeking to restrain actions that could potentially defeat orders made or to be made in those proceedings.

The central legal issues before the court were whether there was a real risk that the husband, or the 3rd respondent in his capacity as guardian, would take steps to dissipate or alter the Josselyn Family Trust or its assets. Specifically, the court had to determine if there was evidence of an intention or scheme to defeat potential orders, and if so, whether injunctive relief was necessary to prevent such actions. This involved examining the powers of the guardian and the trustee under the trust deed, and the recent changes to the directorship of the trustee company.

Watts J applied the principles articulated in *Mullen v De Bry*, which state that the possibility of an intention or scheme to defeat orders, supported by other factors, can establish a probability of an objective risk of disposal. The court noted that the guardian held significant power, including the ability to effectively veto capital distributions by requiring notice from the trustee and the power to replace the trustee. The court found it significant that the husband asserted his brother had been appointed guardian via a deed poll, the authenticity of which was contested, and that this appointment was communicated to the wife's lawyers shortly before the children were appointed as directors of the trustee company. The court also observed that the husband remained secretary of the trustee company and that the current shareholders were likely holding shares beneficially for the husband, raising concerns about control. The lack of explanation for the children's appointment as directors, coupled with the contested change of guardian, contributed to the court's assessment of risk.

Pending further order, the court granted injunctions restraining the husband and the 3rd respondent from making changes to the guardianship, trusteeship, beneficiaries, or terms of the trust deed. The husband was also restrained from resigning or accepting appointment as a director of the trustee company and from causing the trustee to make capital distributions or alter beneficiaries or trust terms. The trustee company, M Pty Ltd, was similarly restrained from accepting director changes, altering shareholdings, or exercising its discretion regarding capital distributions, beneficiaries, or trust terms.