L & C (No.1)
[2002] FMCAfam 55
•14 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & C (No.1) | [2002] FMCAfam 55 |
| FAMILY LAW – Injunctions – nature of the marriage ceremony – void marriage – jurisdiction – ex parte orders made – undertaking as to damages from an impecunious applicant – ss.71, 114(3) Family Law Act; s23B Marriage Act 1961. |
| Applicant: | S L |
| Respondent: | Y C |
| File No: | ZP542 of 2002 |
| Delivered on: | 14 February 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 14 February 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Ms Munk |
| Solicitors for the Applicant: | Watson Stafford Solicitors DX 25085 Fairfield |
| Respondent | Ex parte |
ORDERS
IT IS ORDERED PENDING FURTHER:
That this application be dealt with on an ex parte basis.
That upon the wife’s undertaking as to damages, the husband shall:
(a)Forthwith deliver to the wife’s solicitors Watson Stafford Solicitors at 41 Spencer Street, Fairfield the Certificates of Title in respect of the properties:
(i)The property at 5/5-7 K Street, C, being the whole of the land in Lot 5 Strata Plan ……, and
(ii)The property 45 L F Street, G, being the whole of the land in Folio Identifier 139 in deposited plan …...
(b)Be restrained from selling, encumbering, transferring or in any other way dealing with the C and G properties;
(c)Be restrained from spending, giving away, disposing of, or in any other way dealing with:
(i)The balance of deposit monies received by him in the sum of $42,5000 from the proposed purchase of the H property.
(ii)The balance of funds standing to the credit of his bank or building society accounts including his Award Saver Account with the Commonwealth Bank being account number …………., save for the sum of $1000.
That the matter be listed for further hearing at 10.00am on 20 February 2002.
That the parties have liberty to apply for further orders and directions in relation to the matter on 12 hours notice.
I DIRECT that a copy of the application, relevant documents and sealed orders made today be served on the respondent by 15 February 2002.
NOTATION
The wife has filed her undertaking as to damages and these injunctions operate immediately.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP542 of 2002
| S L |
Applicant
And
| Y C |
Respondent
REASONS FOR JUDGMENT
By her application filed today, S L (“the applicant”) applied for urgent mandatory and prohibitive injunctions.
In support of her application she relies upon:
·Her affidavit sworn 13 February 2002 and filed 14 February 2002;
·The affidavit of H L sworn 13 February 2002 and filed 14 February 2002; and
·Her financial statement sworn 13 February 2002 and filed
14 February 2002.Because of the urgency of the situation she has approached the court without prior notice to the respondent.
The applicant was born on 1 February 1972 in C. She entered Australia in 1995 sponsored by her sister. She is an Australian citizen.
On 18 December 1999 the parties participated in a ceremony that the applicant alleges she believed was a marriage ceremony conducted in accordance with Australian law. The details of the ceremony are contained in paragraphs 5–13 of her affidavit.
Although it is not clear when, some time after the ceremony the respondent told the applicant that he had been married some months earlier. He produced a marriage certificate that was dated 19 June 1999. The marriage certificate is annexure B to the applicant’s affidavit. It reveals that the respondent married Y H that day.
The parties lived together after their marriage ceremony and have a child, A L who was born on 19 April 2001. The parties separated on 18 December 2001. Upon separation the applicant left the family home taking the child with her.
At the commencement of the proceedings today I asked Ms Munk, who appears for the applicant, to address the court’s jurisdiction. After hearing her submissions I adjourned briefly to review the authorities applicable to the court’s power to entertain an application for property adjustment in the absence of a valid marriage.
Section 71 of the Family Law Act provides that in proceedings under Part VII of the Act “marriage” includes a void marriage. In Lengyel v Rasad (No. 2) (1990) FLC 92-154 Nygh J held that in order for proceedings for relief under part VII of the Act to be instituted, s.71 of the Family Law Act makes it clear that there must have been “between the parties, a ceremony of marriage whether it created a valid marriage or a void marriage”. There is no question that the ceremony on 18 December 1999 failed to comply with the requirements for a valid marriage. See s.48(1) Marriage Act 1961. The apparent defects include that the husband was currently married and that notice of intention to marry was not given. It may be that the person who officiated was not authorised to do so. No marriage certificate has issued. See s.48 Marriage Act 1961. However, given the asserted lack of knowledge as to its defects and her belief that the ceremony was a marriage ceremony, the ceremony may well be a void marriage. See s.23B Marriage Act 1961.
If the ceremony was no more, for example, than a commitment ceremony or a betrothal, a fact known to both parties then the court probably does not have jurisdiction. The ceremony must have been in the nature of a marriage and be no less than a void marriage. Whether or not the court has jurisdiction will depend upon the findings of fact ultimately made about the ceremony. There is no doubt that a court can exercise asserted jurisdiction pending the determination of jurisdictional facts in a judicial manner. So too it can maintain the status quo by injunction pending the hearing. Of course the hearing must take place quickly. The exception to this general rule is where it is patently apparent that the court lacks jurisdiction. Re Ross-Jones, ex parte Green (1984) FLC 91-555.
I am satisfied that prima facie the court has jurisdiction and that s.71 of the Family Law Act applies.
The substantive relief sought by the applicant is for the adjustment of property pursuant to s.79 of the Act. In essence, she seek orders that will require the respondent to sell properties situated at 5/5-7 K Street, C and at 45 L F Street, G. Upon their sale she claims that the net proceeds are distributed as to 60 per cent to the applicant and forty per cent to the respondent. The basis upon which the claim for the adjustment of property is made is contained in paragraphs 18, 20-25 inclusive, 29, 30 and 32 inclusive. Taken at face value, that material is capable of satisfying the court that the applicant may be entitled to the relief (or a substantial part of it) sought. In Waugh & Waugh (2000) FLC 93-052 the Full Court of the Family Court examined the circumstances in which a court may grant an interlocutory injunction pursuant to s.114(3). Not only must the court consider issues of balance of convenience and hardship to the parties but also “… the fundamental question whether there was any evidence of any intention by the husband to dispose of any assets pursuant to any scheme to defeat any judgment which the wife might obtain in the substantive proceedings, or whether he merely wishes to continue to trade, as he always has done, prior to and since the separation of the parties” at 87, 810.
In her affidavit material the applicant alleges that there is a substantial risk of disposal of the real estate and cash. The parties had attempted to enter into the purchase of a property at H, raising a cash deposit of $42,500. The applicant alleges that she raised the funds by borrowing from her sister and the sale of her diamond ring. The sale did not proceed and the respondent collected the deposit cheque. He has not accounted to her for the monies.
The real estate is registered in the respondent’s sole name. Because of her anxieties, the applicant instructed her solicitors to write to the respondent seeking an undertaking that he would not “dispose, encumber or deal with those assets” without the applicant’s consent. He was given a time to reply and advised that unless he had given the undertaking, sought an application would be made to the court. He did not reply to the applicant’s solicitors. The respondent spoke to the applicant which conversation is detailed on pages 7 and 8 of her affidavit. He said, inter alia, “you think properly, withdraw all the complaints and then I can take you back to be my wife. Unless you go to the solicitor with me and sign the paper and say that you will give me all of the money that you have and you will never ever get it back, not even one dollar”. There was further conversation to a similar effect.
During the course of cohabitation the applicant has variously been in paid employment, been a full time parent and worked in the parties clothing business B G Fashions. It is the applicant’s case that the respondent has exclusive control of any assets of value. I am satisfied that that fact, combined with the conversations detailed at pages 7 and 8 of her affidavit reveal a real risk that the respondent may dispose of or encumber the matrimonial assets to defeat the applicant’s claim. At this stage, of the course, the court only has the applicant’s evidence. Whether an injunction, once made, would be maintained after the respondent has had the opportunity to participate in the proceedings is a separate question.
The orders sought by the applicant will maintain the status quo in relation to the real estate and the balance of the deposit monies from the proposed purchase of the H property. The evidence does not disclose any reason why the court would conclude that maintaining the status quo would cause hardship to the respondent. Apparently the balance of convenience favours the applicant. The relief sought in relation to the respondent’s bank account will provide him with a modest sum that he can draw down to meet his day to day expenses during the adjournment period.
I will order that the matter be adjourned for only a short period and provide that the respondent can bring the matter before the court on short notice. Thus if the funds available are not sufficient to meet his ordinary costs of living or indeed any other legitimate purpose and he seeks to be released from the orders made today, he can do so quickly.
The wife has offered an undertaking as to damages. Her financial statement strongly suggests that she would have little prospect of meeting any damages that may be subsequently ordered. I considered in those circumstances whether I ought accept the undertaking as to damages and whether her application for injunctive relief should fail because of the risk that an order awarding damages would not be satisfied. In Blue Seas Investments Pty Limited v Mitchell & McGilvray (1999) FLC 92-856 the Full Court highlighted the differences between litigation conducted under the Family Law Act from general civil litigation. After carefully reviewing the common law, Their Honours make it clear that a court considering an application for injunctions under the Family Law Act must examine the application in a different light to ordinary civil litigation. They say:
“In our view it would be unconscionable to accept a broad principle that the impecuniosity of a party in Family Law proceedings would be given such weight as to prevent an injunction being granted where all the other requirements for the grant of such an injunction are present. Indeed, it may even be doubtful whether the impecuniosity of one of the parties to family law proceedings would usually be a factor militating against a ground of interim or interlocutory injunctions if the other tests of the grant of the same were otherwise satisfied”.
I have already made findings that there is a serious issue to be tried and that the applicant has made out her case for urgent interlocutory relief. The respondent has control of all of the assets of value. This is a case to which the Blue Seas Investments Pty Limited v Mitchell & McGilvray (supra) decision has clear application. I am satisfied that I should accept the undertaking as to damages and make the orders sought. Of course if the applicant is ultimately successful any damages ordered may be satisfied from the entitlement ordered pursuant to s.79(4).
Accordingly I make orders in accordance with paragraphs 1 and 2 of the application for interim orders. Next, I note that the undertaking as to damages is given and that order 2 is immediately operative. In terms of order 2 it only goes as far as subparagraph (c). I do not make orders (d) and (e) at this stage.
For these reasons I make the orders identified at the commencement of this judgment.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 1 March 2002
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