Kachmar & Madero (No 2) - [2023] FedCFamC1F 121

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kachmar & Madero (No 2) [2023] FedCFamC1F 121

File number(s): MLC 8783 of 2020

Judgment of: WILLIAMS J

Date of judgment: 7 March 2023

Catchwords: FAMILY LAW – PROPERTY – Interim application – Freezing order – Injunction sought by the wife restraining the second respondent from dealing with matrimonial assets – Procedural fairness accorded to the second respondent – Where there is a real risk that the second respondent may dissipate or otherwise deal with particular matrimonial assets overseas in a way that would defeat the wife’s ability to recover them – Balance of convenience favours the making of the injunctions against the second respondent from dealing with the apartment and relevant bank account.

Legislation: Family Law Act 1975 (Cth) ss 79, 114

Cases cited:
Kachmar & Madero [2021] FedCFamC2F 616

Tsiang & Wu and Ors (2019) FLC 93-911

Division: Division 1 First Instance

Number of paragraphs: 40

Date of hearing: 14 February 2023

Place: Melbourne

Counsel for the Applicant: Ms Dellidis

Solicitor for the Applicant: Waterson Legal

Counsel for the First Respondent: Mr Mathews

Solicitor for the First Respondent: Jurisbridge Legal

The Second Respondent: Did not participate
ORDERS

MLC 8783 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KACHMAR

Applicant

AND:
MR MADERO

First Respondent

MS C

Second Respondent

order made by:

WILLIAMS J

DATE OF ORDER:

14 FEBRUARY 2023

THE COURT ORDERS THAT:
1.Until further orders in this proceeding, the second respondent be restrained by injunction from:
(a)dealing with and/or in any way encumbering or disposing of any of her rights and entitlements in the apartment located at L Street, City M, Country B, registered under the name Ms C; and
(b)accessing or otherwise dealing with any funds in any bank account in Country B under her name, Ms C or any other alias being used, including, but not limited to, account CB…23.

2.By 4:00pm on 27 February 2023, the second respondent provide the applicant copies of bank statements of all her bank accounts in Country B, under her sole name or jointly with another person, including account number CB…23, for the period from 1 August 2017 to date.
3.The wife's costs of the Application in a Proceeding filed 31 January 2023 be fixed in the sum of $5,939 and reserved.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kachmar & Madero (No 2)

Details

AGLC: Kachmar & Madero (No 2) [2023] FedCFamC1F 121
Case: [2023] FedCFamC1F 121
Decision Date

CaseChat Overview and Summary

Kachmar & Madero (No 2) involved the wife, who had separated from her husband in 2016 after 16 years of cohabitation, initiating proceedings for property adjustment against the husband. The wife alleged that the husband had failed to disclose his financial affairs fully and had transferred matrimonial funds to Country B, using them to purchase an apartment in City M. The wife sought freezing order injunctions to prevent the husband and his mother from dealing with the apartment and relevant bank accounts.

The primary legal issues the court had to decide were whether there was a serious issue to be tried regarding the wife's entitlement to a just and equitable property settlement and whether the balance of convenience favoured the making of injunctions to preserve assets. The court also needed to determine whether the husband's mother should be enjoined from dealing with the apartment and bank accounts.

The court found that there was a serious issue to be tried regarding the wife's entitlement to a just and equitable property settlement and her ability to satisfy her entitlements from assets transferred overseas. The court concluded that the balance of convenience favoured making injunctions to preserve assets. The court imposed injunctions to prevent the husband and his mother from dealing with the apartment and the relevant bank account.

The court ordered the husband and his mother to refrain from dealing with the apartment and bank accounts, and reserved the costs of the application for determination at trial.

Orders

Orders of the court

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Background

Background to the litigation

At the conclusion of submissions, I made the freezing order injunctions as sought by the wife and these are my reasons.BACKGROUND The husband and the wife separated on 18 November 2016 after a 16 year cohabitation, which included 11 years of marriage. There are two children of the relationship who are now aged 10 and 12 who live with the wife in Australia. Shortly after separation, the husband re-partnered with a Country B national and travelled between Country B and Australia on numerous occasions. In 2021, the husband left Australia permanently and migrated to Country B. He has not subsequently returned to Australia. On 12 August 2020, the wife initiated proceedings for property adjustment. On 20 October 2020, the husband filed a Response, which also sought equal time with the children. The wife alleges the husband has failed to provide full disclosure of his bank statements and financial affairs and she has had to issue subpoenas to banking institutions to obtain information. On occasions the husband has unsuccessfully objected to the release of his financial information produced to the Court pursuant to various subpoenas. The genesis for the current application is the wife’s assertions that the husband has transferred matrimonial funds to Country B, which have been applied to purchase an apartment in City M registered in the name of the second respondent. The wife discovered the asserted application of the funds from documents produced pursuant to a subpoena. In mid-2016, settlement of the sale of the parties’ former matrimonial home occurred. The wife asserts the proceeds of sale were controlled by the husband. In her affidavit, the wife deposes to the husband transferring large sums of money between various accounts, including withdrawing $300,000 from a Westpac account three days after the wife advised him she wanted to separate. Both parties agree that between 7 and 17 August 2017, the husband transferred $430,599 to Country B in five separate transactions. According to the husband’s chronology in his Outline of Case document, and his affidavit filed 21 January 2022, he transferred $300,000 of the funds to his grandmother to repay a historic debt owing to his deceased grandfather, made a payment to his mother of funds which he had held for many years for safekeeping and other funds used for living costs and legal fees. In mid-2017, the second respondent purchased an apartment in City M for EUR 265,500. The wife asserts the funds transferred to Country B were applied to the purchase of the City M apartment. The wife discovered the purchase of the apartment from narratives on the husband’s bank statements, which referred to the address of the property. The bank statements were obtained via subpoena. The wife subsequently conducted a title search, which is Annexure MK-3 to her affidavit of 23 December 2023 which confirms the property was purchased by the second respondent in mid-2017. On 10 November 2022, the wife applied to the Country B courts seeking an ex parte freezing order, which was granted on 25 November 2022. A copy of the order is Annexure MK-5 to the wife’s affidavit of 23 December 2023.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

At the hearing, the wife’s counsel asked for costs of the Application in a Proceeding to be fixed in the sum of $5,939. I consider those costs to be a reasonable sum and will make an order reserving costs for determination at trial.CONCLUSION I am comfortably satisfied that there is a serious issue to be tried between all parties to the litigation, that is the wife’s entitlement to a just and equitable property settlement and her capacity to satisfy her entitlements from assets which may have been transferred overseas or acquired overseas from marital funds. The balance of convenience must favour the making of injunctions to preserve assets, including the City M apartment, and funds in the relevant bank account. The only prudent course is to impose injunctions to prevent the husband’s mother dealing with the apartment and the relevant bank account.

Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 8783 of 2020
Judgment of:	WILLIAMS J
Date of judgment:	7 March 2023
Catchwords:	FAMILY LAW – PROPERTY – Interim application – Freezing order – Injunction sought by the wife restraining the second respondent from dealing with matrimonial assets – Procedural fairness accorded to the second respondent – Where there is a real risk that the second respondent may dissipate or otherwise deal with particular matrimonial assets overseas in a way that would defeat the wife’s ability to recover them – Balance of convenience favours the making of the injunctions against the second respondent from dealing with the apartment and relevant bank account.
Legislation:	Family Law Act 1975 (Cth) ss 79, 114
Cases cited:	Kachmar & Madero [2021] FedCFamC2F 616 Tsiang & Wu and Ors (2019) FLC 93-911
Division:	Division 1 First Instance
Number of paragraphs:	40
Date of hearing:	14 February 2023
Place:	Melbourne
Counsel for the Applicant:	Ms Dellidis
Solicitor for the Applicant:	Waterson Legal
Counsel for the First Respondent:	Mr Mathews
Solicitor for the First Respondent:	Jurisbridge Legal
The Second Respondent:	Did not participate

MLC 8783 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KACHMAR Applicant
AND:	MR MADERO First Respondent MS C Second Respondent

order made by:	WILLIAMS J
DATE OF ORDER:	14 FEBRUARY 2023