King and King and Anor

[2012] FamCA 185

FAMILY COURT OF AUSTRALIA

KING & KING AND ANOR [2012] FamCA 185

FAMILY LAW – INJUNCTIONS - s 114 orders

Family Law Act 1975 (Cth)

APPLICANT: Ms King

RESPONDENT: Mr M King

INTERVENOR: Mr B King

FILE NUMBER: MLC 9554 of 2011

DATE DELIVERED: 27 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berkivitch

SOLICITOR FOR THE APPLICANT: Kliger Partners

THE RESPONDENT: In person

COUNSEL FOR THE INTERVENOR: Mr Vlahos

SOLICITOR FOR THE INTERVENOR: Mr Peter Vlahos

Orders

1. That all outstanding applications are adjourned to 10.00am on 28 June 2012 for an oral examination of the husband.

2. That by 4.00pm on 17 April 2012, the wife provide to the husband a list of all documents required for discovery and inspection and those documents be made available by 4.00pm on 24 April 2012 subject to any objection on the grounds of privilege and to the extent that the husband says that he does not have possession, power or control of those documents, he advise in writing when he last (if ever) had that possession, power or control. 

3. That the husband do all acts and things in his power to return to the wife the 2007 Mercedes Benz motor vehicle.

4. That until further order, the husband is restrained by injunction from using the American Express Card in his name except in the ordinary course of business.

5. That the costs of the wife and the 2^nd respondent this day are reserved to the adjourned date.

6. That there be reasons for the order set out in paragraph 4 of these reasons as soon as practicable provided to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & King and Anor 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 9554  of 2011

Ms King

Applicant

And

Mr M King

Respondent

And

Mr B King

REASONS FOR JUDGMENT

1. On 27 March 2012 in the Duty List, I made a variety of orders including that the husband be restrained from using an American Express card in his name except in the ordinary course of business.  These are the reasons why I made the order.

2. The substantive proceedings relate to a property dispute.  The husband’s brother has been joined as a respondent.  The wife’s claim against the second respondent is that he is in control of assets which actually belong to the husband and wife.  There are currently issues in the hands of a liquidator investigating similar matters arising out of proceedings in the Supreme Court of Victoria.  The husband’s approach is that he has nothing and the wife is wasting everyone’s time.

3. The only application before me on 27 March 2012 was that filed by the wife.  She sought a variety of orders which after discussion with the husband, were not controversial.  The one issue which was controversial related to an injunction concerning the use by the husband of an American Express card facility.  The husband did not file a response nor seek an adjournment of the proceedings.  This is not the first time that the matter has been before the Court and the husband is an experienced litigant.

4. The wife relied upon an affidavit in support of the application which the husband disputed but upon which, he did not file any material.

5. At the commencement of the day, I released for inspection, documents produced by the American Express company pursuant to a subpoena issued by the wife.  Consistent with the evidence of the wife, counsel for the wife said the subpoenaed material showed credit cards in the name of the father of the husband and his sister but also the husband as a supplementary card holder.  Over a space of 12 months, the American Express card had been used to acquire $860,000 worth of liquor whilst during that same period, $1.278 million had been paid on the card.  It was accordingly asserted by the wife that the husband could meet a litigation funding order.

6. Prior to the luncheon break, the husband said that he had not been using the card exclusively and therefore I inferred that the card was being used by someone else and that the relevant purchases and debts had nothing to do with him.  However, after the court resumed the husband indicated that he was a “broker” and was using the credit card to acquire liquor which he then sold for a minimal profit.  He said that was his only source of income.  That was the first that I had heard of the occupation of the husband as such.  It appears that this sort of transaction has been going on for a considerable period of time.

7. The wife’s application was that I restrain the husband from using his credit card other than in the ordinary course of business.  The husband seemed to oppose that although I am satisfied that he understood that the only restriction was on the use of the card for activities other than business purposes.

8. The power to make an order restraining a party from taking steps which would dissipate or reduce the value of an asset lies in s 114 of the Family Law Act 1975 (Cth) (“the Act”). That provision requires the Court to consider whether or not it is proper to make an order which would otherwise infringe personal liberties.

9. I have no evidence from the husband.  I have the clear assertion by the wife that the husband has not been forthcoming with the production of documents and there is a very real argument in this case about who owns a liquor store which is run by a corporate entity.  It is not clear whether it is the same entity said to be using the credit card.  Having regard to the fact that these orders are directed solely to the husband and no other person, I see no prejudice to the husband in restraining him from using that credit card for any purpose other than that associated with his broking business.  To the extent that he did something outside of that activity, he would clearly breach the orders I propose to make.

10. I am satisfied in the circumstances that this is an asset protection order pending the determination of exactly what assets are owned by the husband and the wife and that it is proper to make the order in the circumstances.

I certify that the preceding Ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 March 2012.

Associate: 

Date:  27 March 2012