Knight & Alesi and Anor

[2007] FamCA 156

FAMILY COURT OF AUSTRALIA

KNIGHT & ALESI AND ANOR [2007] FamCA 156

FAMILY LAW - PROPERTY – Ex parte application for urgent interlocutory relief -  Husband sought leave to join Wife’s Mother to proceedings -  The Wife had conceded having transferred monies to her Mother, who in turn had transferred the funds to Greece -   Husband sought order requiring funds to be repatriated to Australia and that a caveat be lodged in the interim on property held by the Wife’s Mother in Australia

FAMILY LAW - PROPERTY – JOINDER – Section 114(3) – Third Parties – Proposed third party had received plenty of warning of Husband’s application to join her in the proceedings – No injustice – Third party to have liberty to apply

FAMILY LAW - PROPERTY – Interlocutory relief - Application for caveat treated as application for an injunction pursuant to s 114 of the Act to restrain the owner’s dealings with the property pending further Order - Evidence that monies held by third party in Greece form the major part of the matrimonial asset pool and emanated from the sale of the former matrimonial home - Third party had previously indicated that she would return funds in the same quantum - Reason for wife’s transfer of funds to Mother and subsequent transmittal of funds to Greece not clear - Procedural Fairness accorded to the third party – Liberty to apply on short notice to the third party

APPLICANT: MR KNIGHT

RESPONDENT: MS ALESI

THIRD PARTY: MRS ALESI

FILE NUMBER: MLF 2598 of 2006

DATE DELIVERED: 14 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bryant CJ

HEARING DATE: 14 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Eugenia Mitrakas and Co

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE THIRD PARTY: No appearance

Orders

IT IS ORDERED THAT:

1. [The wife’s mother] be joined as a party to proceedings number MLF2598/2006 between the husband and the wife.

2. The wife cause the Third Party [the wife’s mother] to be served with a sealed copy of this order as soon as practicable.

UPON THE UNDERTAKING of the husband given through his solicitor this day to pay as directed by the court to any person or affected by the restraints imposed by the injunction granted today or any continuation thereof such compensation as the court may in its discretion determine

IT IS ORDERED THAT:

1. [The wife’s mother] forthwith transfer the sum of $190,667.54 plus accrued interest since the funds were deposited by her in her bank account, to the trust account of the husband’s solicitor, Eugenia Mitrakas, and upon receipt of the funds into the trust account of the husband’s solicitors, such funds are to be placed in a trust account in the name of the husband, wife and Third Party to be held pending disposal of the proceedings or until further order.

2. Pending the Third Party’s compliance with paragraph four hereof or until further Order, the Third Party be restrained from dealing with the proceeds of any bank account in which the whole or any part of the amounts admitted by the respondent wife as having been transferred to her on or about 9 September 2004, being $190,667.54 and $40,000 on about 29 December 2004, including but not limited to accounts held with the National Bank in Greece being accounts […] and […].

3. The Third Party forthwith provide a copy of all bank statements and account details relating to all funds transferred to her by the wife including but not limited to the sums of $190,667.54 on or about 9 September 2004 and $40,000 on or about 29 December 2004.

4. The applicant husband have leave to serve a copy of this order upon the National Bank of Greece at its office in Melbourne situated at 326 Williams Street, Melbourne.

5. Until further order, the Third Party be restrained and an injunction be granted restraining her from disposing of, encumbering or otherwise dealing with the property registered in her name at C being the whole of the land contained in Certificate of Title, Volume […]; Folio […].

6. The husband be at liberty to bring the contents of this order and in particular the injunction granted in order 7 hereof to the notice of the Registrar of Titles for the State of Victoria and to lodge appropriate documents to protect the interest accorded to him by the injunction in paragraph seven hereof.

7. The Application otherwise be adjourned to the Judicial Duty List on 7 March 2007 at 10am with liberty to the Third Party to apply to vary or set aside these orders on seven days notice to the husband’s solicitors.

8. The question of the husband’s costs of this application be reserved.

9. All applicable time limits to enable the application to be heard this day be abridged.

IT IS DIRECTED THAT

1. The reasons for judgment be transcribed and a copy be made available to all parties as soon as practicable.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Chief Justice delivered this day will for all publication and reporting purposes be referred to as Knight & Alesi

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2598 of 2006

MR KNIGHT

Applicant

And

MS ALESI

Respondent

And

MRS ALESI

Third Party

REASONS FOR JUDGMENT

1. The application that comes before me today is an application by the husband filed on 31 January 2007.  The orders that he seeks are as follows:

   1.      That the Applicant Husband have leave to join [the wife’s mother] as a party to these proceedings.

   2.      That the Applicant Husband be given leave to lodge a Caveat over the interest of [the wife’s mother] over the property situated at C, being the whole of the land contained in Certificate of Title, Volume […]; Folio […], pending Final Orders being made in these proceedings and that the Registrar of Titles be directed to lodge such Caveat.

   3.      That [the wife’s mother] bring into Court or otherwise account to the Court’s satisfaction for all amounts transferred to her and transferred on her behalf by the Respondent wife during the period of the marriage (including but not limited to amounts of $190,667.54 admitted by the Respondent wife to having been transferred to the said [the wife’s mother] on or about 9 September 2004 and of $40,000 admitted by the Respondent Wife to having been transferred to the said [the wife’s mother] on or about 29 December 2004) and further bring into Court or otherwise account to the Court’s satisfaction of all interest earning thereon.

   4.      That pending the said [the wife’s mother’s] compliance with paragraph 3 hereof (and save for the purposes of compliance therewith) the said [the wife’s mother] be restrained from dealing with any bank or other account whatsoever and wheresoever held in which the whole or any part of the amounts admitted by the Respondent wife as having been transferred to her (referred to in paragraph 3 hereof) are held (including but not limited to accounts held with the National Bank of Greece, being accounts […] and […]).

   5.      That the Applicant have leave to serve the within Application upon the National Bank of Greece at its office in Melbourne situate at 326 William Street, Melbourne, Victoria.

   6.      That the Respondent wife pay the costs of the Applicant husband of this Application.

   7.      That any applicable time limits in respect of this Application be abridged and that this Application be first heard ex parte.

   8.      Such further or other orders as this Honourable Court may deem appropriate.

2. The husband's application is supported by an affidavit sworn by him and filed on 31 January, and an affidavit sworn by his solicitor, Eugenia Mitrakas, which was also filed on 31 January.  There is no appearance for the wife or from the wife's mother. 

3. As to the background, the proceedings between the husband and wife commenced when the husband filed an application on 1 September 2006 for final orders for property settlement.  The orders sought on a final basis were:

   1That the respondent wife provide to him a full accounting of the funds paid to her on about 21 February 2003, including interest, being the proceeds of sale of the former matrimonial home.

   2That the assets and liabilities of the parties be determined, and once determined, divided equally between the husband and wife. 

   3That, for the purpose of those orders, all moneys, including accrued interest, held by the wife in her name be brought to account.

4. Interim orders were sought but not on a separate application.  The interim orders then sought were:

   That, pending the making of final orders, the respondent wife file an affidavit setting out full particulars of the bank accounts to which the proceeds of sale of the former matrimonial home were deposited and exhibiting the relevant bank statements and that, pending the making of the final orders, the wife be restrained from any transaction in respect of bank accounts referred to above without the prior consent of the husband or the leave of the court.

   That application was supported by an affidavit filed on 1 September and a financial statement also filed on that date. 

5. The evidence by the husband contained in the affidavit indicates the following:

   a)that the parties were married in June 1999 in Melbourne and separated on or about […] December 2005;

   b)that there are no children of the marriage;

   c)that the parties owned a property at [W] which was sold in November 2002 with settlement occurring in early 2003.  The net proceeds of sale after discharge of the mortgage and selling costs amounted to $193,138.07;

   d)that the parties owned an investment property at [R] Queensland which was sold in December 2002 for approximately $205,000;

   e)that the whole of the net proceeds of sale of the former matrimonial home were paid over to the respondent wife by the former solicitor of the parties, D and Associates, on about 21 February 2003;

   f)that, as far as the husband understood, all of the proceeds of sale of the former matrimonial home went into a term investment account in the Commonwealth Bank of Australia (he says that the notices in respect of the term investment were sent to the wife care of her parents’ address in P and he never saw the notices); and

   g)that in late 2005 the wife informed him that she wanted to separate but refused to provide him with details as to the whereabouts of the funds.

6. The husband then deposed to his own financial arrangements, which were largely corroborated by the information in the financial statement, indicating that he was and is employed as a machine operator earning a modest salary; that he has a current net equity in Macquarie Margin Lending of some $21,000 and that he has two debts, one of $43,000 which is the subject of a garnishee order, and a loan from his mother of $50,000.  Although not made explicit, the inference that draw from these facts is that the proceeds of sale of the properties, particularly the matrimonial home, formed almost all of the assets of the parties.

7. The application which was filed was listed for a Case Assessment Conference on 16 October 2006.  A response was filed by the wife on 12 October 2006; that response sought simply the dismissal of the application and payment of the wife's costs of and incidental to it.  No affidavit was filed nor was there any response to the interim orders sought, which I infer was because there was no application in the case filed on behalf of the husband.

8. A financial statement was filed by the wife on 12 October 2006 which indicates that, excluding superannuation, the total gross value of the property owned by the wife was $19,500; liabilities were said to be $49,250, being a loan from the wife's mother for the property in W.  The wife's investments or bank accounts were said to be a CBA streamline account of $16,000, an investment of $3,000 in S Pty Ltd (Custodian) (as Trustee for the Employee Share Plan). 

9. On 16 October 2006 a Case Assessment Conference was held and both parties were represented at that conference.  The orders and directions that flowed from that provided for a Conciliation Conference to be held on 21 December 2006 at 9.15 am, an exchange of relevant documents prior to the Conciliation Conference and a number of orders, which I will describe in a moment.  There was a notation to the effect that:

   The parties agree that the wife contributed $40,000 towards the purchase of the home and the husband contributed $30,000.

   It is further noted that the husband asserts through his solicitor that there has been a failure by the wife to comply with the pre‑action procedures.

10. The annexure to the directions provides the following:

    Within 21 days the wife provide to the husband:

    1copies of bank account statements from the Commonwealth account from 21 February 2003 to date;

    2documents regarding the loan from her mother;

    3documents regarding quantification of her father's contribution to the real estate improvement;

    4quantification of the wife's assertion of loss of funds as a result of investments;

    5copies of tax returns since 30 June 1999;

    6copies of bank statements, including term deposits, since 1 July 2002;

    7if possible, copies of all bank statements regarding all moneys transferred by the wife into her mother's name.

11. The orders provided for the husband to provide to the wife:

    1copies of all documents relating to the debt owed to Mr E (?), including copies of court proceedings;

    2copies of all documents relating to the debt to the T Company;

    3copies of tax returns 30 June 1999 to date;

    4all copy statements from Macquarie Margin Lending investments, including all records of share trading;

    5documentation regarding the loan from his mother;

    6documentation regarding the C investment;

    7documentation regarding:

    a)   Mr H’s Investment source;

    b)     F Company;

    c)     A Company;

    d)     P Company;

    e)     N Company;

    f)   R Company; and

    g)     A T Company purchase.

    and the wife provide to the husband copies of any documents she may have in her possession regarding (a) to (f) above.

12. I note for the purposes of the application with which I have to deal that one of the orders provided for the wife if possible to provide copy bank statements regarding all moneys transferred by the wife into her mother's name.  The affidavit of the husband's solicitor, in paragraph 2 thereof, indicates that at the Case Assessment Conference counsel for the respondent wife, Ms Dellidis:

    orally conceded that the respondent wife had transferred the moneys to the second respondent and the second respondent, the mother, had in turn transferred those moneys to a bank in Greece.

13. The parties then attended a Conciliation Conference on 21 December 2006.  The husband's solicitor appeared and again Ms Dellidis of counsel was briefed.  It does not appear that the parties reached any agreement at that conference.  It was noted that the matter was to move to the trial notice list. 

14. The affidavit of the husband's solicitor asserts that information regarding transfer of the funds from the wife to her mother had been sought on 1 June 13 July and 15 August 2006, all prior to the Case Assessment Conference, and subsequently on 26 October, 9 November, 6 December and 12 December 2006.  Copies of the letters of 6 December and 12 December are attached as annexures to the affidavit.  It is important, in my view, to note that in the letter of 6 December the solicitors for the husband wrote to the wife's solicitors and, inter alia, said:

    We note the comments made by your counsel to Eugenia Mitrakas at the Case Assessment Conference that the funds from the sale of the property were given to your client's mother, who has now disposed of those funds.  In the event that your client does not bring those funds into the pool of money, we will be seeking an order from the court to join your client's mother, […], as a party to the proceedings.

15. By letter of 12 December, which is in response to a letter from the wife's solicitors, also of the same date, which is not attached, the solicitors for the husband said, inter alia:

    Your instructor was present at the Case Assessment Conference when your client's counsel stated openly that your client had given the funds to her mother who had in turn sent the funds to an account in Greece.  The Registrar made the formal orders on the day and considered the question of joining your client's mother as a party to the proceedings.  However, she indicated that she would not make an order joining your client's mother as a party until the Conciliation Conference.

    The letter further says:

    We require your client to immediately put on oath what occurred to the subject funds (being the proceeds of the moneys from the sale of the former matrimonial home).  We propose to use this letter in all questions of costs if the Conciliation Conference has to be adjourned as a result of your client's wilful failure to make full and frank disclosure.  If so advised, we will also seek orders joining your client's mother to the proceedings.

16. By letter dated 14 December 2006 the wife's solicitors wrote back.  They pointed out the notation to the orders which required the wife to "provide to the husband (if possible) copies of all bank statements regarding moneys transferred by the wife into her mother's name".  They enclosed a copy bank statement evidencing the bank account in Greece in the name of their client's mother and advised that account was where they were instructed “the proceeds of sale of the former matrimonial home are presently invested”.

    Documents are annexed to the affidavit which corroborate the establishment of the bank account in Greece and the moneys in it.

17. On 21 December 2006 the husband's solicitors wrote again to the wife's solicitors informing them that they had "been instructed to join the wife's mother, […],  as a party to the proceedings" and further said:

    We are prepared to hold off joining the mother as a party to the proceedings on the following basis:

    1[The wife’s mother] immediately arrange for the funds presently held with the National Bank of Greece, being listed in the enclosed statements, be immediately transferred to Australia and be deposited in an interest‑bearing term deposit controlled by the two lawyers [being the principals] to this proceeding, pending the making of final orders by the Family Court. 

    2[The wife’s mother] consents to lodging a caveat over her interest in the property situated at [C] , being the land contained in certificate of title, volume […] folio […]. 

    We will then provide you with the withdrawal of such caveat upon compliance with condition number 1 above.  If we are forced to proceedings joining your client's mother, we will be seeking costs of such an application.

18. Over a month later, on 24 January 2007, the husband's solicitors again wrote to the wife's solicitors noting that they had received no response to their letter of 21 December 2006 and that they had now been instructed to issue proceedings joining the wife's mother as a party.  On 24 January a letter was sent by the solicitors for the wife indicating that they had not been in a position to take instructions due to delay in accessing the brief from counsel and the solicitor being on leave.  They said:

    We will be in a position to forward to you tomorrow our client's response to your proposal.

19. On 27 January 2007 a further letter was faxed to the wife's solicitors by the husband's solicitor referring to the two letters of 24 January 2007 and noting:

    We have not heard any further from you.  We are now applying to join [the wife’s mother] as a party to these proceedings.

20. On 31 January 2007 the application now before me was filed but not served.  I have had correspondence handed up to me by way of tender today which appears to complete the relevant correspondence between the solicitors.  On 31 January 2007 a letter was written to the husband's solicitors by [G] and Associates who said that they acted for the mother, [the wife’s mother] “who has handed us a copy of your letter to McClusky's solicitors dated 21 December 2006”.

1. They went on to say:

   We are instructed by our client to advise as follows:

   1She is agreeable to arranging for the transfer of $190,000 plus accrued interest from the National Bank of Greece to an interest‑bearing deposit controlled by the two lawyers in the proceeding, the sum of $40,000 currently on deposit with the National Bank of Greece are our client's personal funds and therefore will not be transferred.

   2She does not consent to lodging a caveat over her property at [C].  Our client will be making arrangements for the transfer of the said $190,000 and accrued interest immediately.

2. On 12 February 2007 the husband's solicitors wrote and faxed the wife's mother's solicitors, saying the following:

   We refer to your letter of 31 January 2007 and would be pleased to have your urgent advice as to the current position in relation to the transfer of funds into the jurisdiction.  Our instructions are that the total amount of $253,000 constitutes matrimonial assets and we require the full amount of $253,000 plus all accrued interest to be transferred back into the jurisdiction.

3. The matter came before me at 10 o'clock this morning and it came to my attention at that time that the application was sought to be proceeded with on an ex parte basis and that the wife and her mother had not been served.  I was informed that the reason for this failure was a concern that the mother might take steps to dispose of the money upon learning of the application and thwart the agreement that had been reached that the money be transferred into the jurisdiction, or thwart any order that this Court might make.

4. Notwithstanding that submission, by having regard to the seriousness of the consequences, I made an order requiring the solicitor for the husband to forthwith serve the wife and her mother with the relevant documents and a copy of an order which I made adjourning the matter until 2.15 today.  I am satisfied from the affidavit of service which has been filed by the husband's solicitor that the documents and my order were faxed through to the solicitors for the wife and/or the wife's mother.

5. The wife's mother's solicitors filed a notice of address for service this day with the court.  They have attached some correspondence, in particular a letter to the husband's solicitors.  They said in the course of the letter:

   We were surprised to receive the above application as we had written to you on 31 January 2007 advising that [the wife’s mother] was agreeable to arranging for the transfer of $190,000 from the National Bank of Greece to an interest‑bearing term deposit account controlled by the two lawyers in the proceeding.  On 2 February 2007 we received your letter advising that you were seeking your client's instructions.  You did not advise us, however, that the application which was filed on 31 January was to be heard today. 

   Further, it was not until 12 February 2007 that we received a facsimile from your office which did not address the issues raised in our letter of 31 January but demanded an amount of $253,000 plus interest be transferred back into the jurisdiction.  Again we have not been advised as to how the sum of $253,000 is calculated.  Again no reference was made to the application issued on 31 January 2007.  We are unable to obtain instructions and attend court with such late notice being provided to us.  We request the matter be adjourned that would give the parties adequate opportunity to address the issues.

6. There are essentially two parts to the application before me.  The first part seeks an order joining the wife's mother to the proceedings; and the second seeks orders in relation to the return of the funds to Australia and the lodging of caveat to protect the interests of the husband in respect of the wife's mother's property.

7. As far as the joinder of the wife's mother is concerned, Part VIIIAA of the Family Law Act ("the Act") now provides that the court may make orders or injunctions under s 114 of the Act which bind a third party. It may be that in the fullness of time the husband will determine whether he needs to amend his application for final orders to include property orders against the wife's mother, but at this stage at least it is clear that what is sought are orders and injunctions under s 114(3) of the Act, which falls within s 90AF. Section 114(3) provides that:

   A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

8. Section 90AF(2) of the Act provides that:

   In proceedings under section 114, the court may make any other order, or grant any other injunction that:

   a)   directs a third party to do a thing in relation to the property of a party to the marriage; or

   b)     alters the rights, liabilities or property interests of a third party in relation to the marriage.

9. Section 90AF(3) of the Act provides that:

   The court may only make an order or grant an injunction under subsection (1) or (2) if:

   a)   the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

   b)     the order or injunction concerns a debt of a party to the marriage--it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

   c)     the third party has been accorded procedural fairness in relation to the making of the order or injunction; and

   d)     for an injunction or order under subsection 114(1)--the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and

   e) for an injunction under subsection 114(3)--the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and

   f)   the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

10. Section 90AF(4) of the Act provides the matters that the court must take into account in considering whether to make such an order:

    The matters are as follows:

    a)   the taxation effect (if any) of the order or injunction on the parties to the marriage;

    b)     the taxation effect (if any) of the order or injunction on the third party;

    c)     the social security effect (if any) of the order or injunction on the parties to the marriage;

    d)     the third party's administrative costs in relation to the order or injunction;

    e)     if the order or injunction concerns a debt of a party to the marriage--the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted;

    See paragraph (3)(b) for requirements for making the order or granting the injunction in these circumstances.

    Example: The capacity of a party to the marriage to repay the debt would be affected by that party's ability to repay the debt without undue hardship.

    f)   the economic, legal or other capacity of the third party to comply with the order or injunction;

    Example: The legal capacity of the third party to comply with the order or injunction could be affected by the terms of a trust deed. However, after taking the third party's legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see section 90AC).

    g)     if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters--those matters;

    Note:  See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

    h)     any other matter that the court considers relevant.

11. The Family Law Rules, in particular r 6.02 provides that:

    A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party in the case.

12. In this case I am satisfied that there are orders sought which will affect the rights of the wife's mother, and she should be joined as a party to the proceedings.  I will refer to her as the “third party”.

DISCUSSION

1. Before I turn to the various matters that I have to consider under s 90AF of the Act, I need to summarise in brief the matters as they now appear to me flowing from the evidence to which I have referred.

2. The first is that the wife's material did not disclose any assets as belonging to her. 

3. Secondly, it appears that at the Case Assessment Conference the wife conceded that she had transferred the proceeds of the sale of the former matrimonial home which was owned jointly by the parties from her name to her mother's account and that money had been subsequently transferred to Greece. 

4. Thirdly, that the wife agreed to provide documentation and had partly complied with that provision. 

5. Fourthly, the wife's mother, through her solicitors, had agreed to return to Australia the sum of $190,000, but, despite the numerous letters to which I have referred, the funds have not yet been returned. 

6. Fifthly, the third party and her solicitors and the wife were aware that if the funds were not returned then an application would be pursued for joinder of the third party to the proceedings. 

7. Finally, notwithstanding the protestations of the third party’s solicitors about the short notice, the funds promised have not yet been transferred to Australia.

8. I appreciate that there has been little opportunity for the third party's solicitors to have notice of these proceedings.  However, it seems to me unnecessary to brief counsel for the purposes of appearing this afternoon; they could easily have arranged an appearance if they had wished to be heard in relation to any of the orders that were sought. 

9. It also appears to me that there has yet been no explanation by the wife as to why moneys that were apparently joint funds were transferred to her mother and thence to Greece.  There may be some explanation, but, despite the fact that the proceedings have been before the court, with both a Case Assessment Conference and a Conciliation Conference, and there are numerous letters which have been annexed, no explanation for this has been forthcoming. 

10. The only inference open to me at the moment, although I accept that there may ultimately be a different version put forward, is that at least $190,000 of the funds belong to the husband and wife.  I also observe that it makes no sense for the wife to be claiming a debt to her mother if she has transferred $190,000 to her mother; that leads me to infer as well that, without any further evidence being available, the wife's mother is probably acting as a trustee on behalf of the wife or both the husband and the wife. 

11. Thus, despite the short notice, I am satisfied that there is no injustice created to the wife's mother by joining her as a party.  She was given plenty of warning that it was going to happen, albeit she did not have much time when the application finally came to her notice.   As I will provide for her to have liberty to apply, she will be able to make representation in due course should she seek to be removed as a party. 

12. I then need to consider orders that are sought against the wife's mother in the form of injunctions and requiring her to bring the money back to Australia. The orders sought are leave to lodge a caveat over the interests of the wife's mother in her property at C. I do not propose to give leave to lodge a caveat but I will treat that as an application for an injunction under section 114 of the Act to restrain her from dealing with her interest under further order.

13. An order is sought that the wife's mother return funds of $190,667.54 and $40,000, which were given to her by the wife and subsequently transferred to Greece, back into Australia to be held pending the disposal of proceedings and that, pending her compliance with that order, she be restrained from dealing with any bank or other account in which the whole or part of the amount admitted by the wife as having been transferred to her, namely $190,667.54 and $40,000, which are currently held in accounts in the National Bank of Greece in Greece. 

14. Subsection 90AF requires me to have regard to subsection (3) before making an order that will grant an injunction and I do as follows:

    a)I must be satisfied that the granting of the injunction in making is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

    b)if the order or injunction concerns a debt of a party to the marriage and it is not foreseeable at the time that the order is made that the injunction would result in the debt not being paid in full.

15. I am satisfied that on the material before me it is reasonably necessary for orders and an injunction to be made against the wife's mother in relation to the moneys referred to.  As I have indicated, on the face of it, these moneys appear to form the major part of the assets of the husband and wife and emanated from the sale of the former matrimonial home. 

16. There may be some explanation as to why these funds were transferred by the wife to her mother, apparently without the knowledge of the husband, but to date, despite plenty of opportunity, no such explanation has been given.  I am therefore satisfied that the granting of an injunction and the making of the orders that I propose to make are reasonably necessary to effect an appropriate division of property between the parties. 

17. Subparagraph (c) of section 90AF(3) of the Act requires me to afford procedural fairness to the third party. I have already touched upon this matter. I accept that to some extent the third party may reasonably complain that there is a very short time to enable her to be heard, and in the circumstances her solicitors have chosen not to.

18. However, despite the short notice of the hearing, there has been plenty of opportunity for her to return the funds to Australia as she promised to do, and, despite promises, the funds have not yet returned.  In the circumstances, whilst I would not usually make an order on such short notice, the facts of this case lead me to the conclusion that in all the circumstances procedural fairness has been accorded, and in any event there will be an opportunity for liberty to apply on short notice should the third party feel aggrieved by these orders.  That also, in my view, adds to the procedural fairness accorded.

19. Subparagraph (d) of section 90AF(3) of the Act does not apply, but subparagraph (e) provides that where an injunction is sought under subsection 114(3) of the Act I must be satisfied in all the circumstances that it is just or convenient to grant the injunction. Having regard to the matters to which I have already referred, I am satisfied that in the circumstances of this case it is appropriate and necessary to grant the injunction and just and convenient to do so.

20. The reason for the wife’s transfer of the relevant funds to the third party, and the third party’s subsequent transmittal of the funds to Greece is not clear.  The way in which the information came to light is, at this stage at least, suspicious, and, although promises have been made to return the funds to Australia, that has not yet occurred. 

21. Finally, I must be satisfied that the injunction takes into account the matters set out in s 90AF(4) of the Act. In consideration of the matters I must take into account set out in subsections (a) to (e) inclusive, I find as follows:

    a)I am not aware of any taxation effect of the order or the injunction;

    b)I observe that the wife's mother was willing to return $190,000, of her own volition, to Australia;

    c)I am not aware of and nor does there appear to be any social security effect of the order or injunction on the parties to the marriage; and

    d)I cannot envisage at this stage any administrative costs in relation to the order or injunction for the third party.

22. Subparagraph 90AF(4)(e) does not apply because the order or injunction does not concern a debt of  a party to the marriage.

23. I do not propose to order the return of the $40,000 sum, because that sum is in dispute.  The husband, through his solicitors, may wish to make further representations about that sum in due course once the third party and the wife have a further opportunity to consider the orders that I have made.  But I will grant an injunction which will, until further order at least, provide some protection by way of securing the third party’s property, which will no doubt cover any extra funds about which I do not make an order today. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant

Associate: 

Date:  14 February 2007