Lahman and Lahman

[2020] FamCA 82

FAMILY COURT OF AUSTRALIA

LAHMAN & LAHMAN [2020] FamCA 82

FAMILY LAW – INJUNCTIONS – Preservation of property.

Family Law Act 1975 (Cth)

Mullen & De Bry (2006) FLC 93-293
Waugh & Waugh (2000) FLC 93-052

APPLICANT: Ms Lahman

RESPONDENT: Mr Lahman

FILE NUMBER: BRC 274 of 2020

DATE DELIVERED: 31 January 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 16 January 2020 and 31 January 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Eastwood, Genuine Legal

SOLICITOR FOR THE RESPONDENT: Ms Allen, Fedorov Family Lawyers

Orders

IT IS ORDERED THAT

1. The Respondent’s application to discharge the Orders made on 16 January 2020 is dismissed.

2. The oral application made on behalf of the Respondent to restrain the Applicant in the same terms as the Order made on 16 January 2020 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lahman & Lahman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 274 of 2020

Ms Lahman

Applicant

And

Mr Lahman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me the return of a previously urgently listed Application for injunctive relief in which orders were sought restraining the husband from dealing with property and/or funds other than for the purposes prescribed in the orders that I made on an interim basis on 16 January 2020 when the matter first came before me. 

2. The question today is whether it is appropriate, having regard to the applicable principles - which are well known and have been set out in cases such as Waugh & Waugh[1] and Mullen & De Bry[2] - that orders remain in force, and if they should, whether orders should be made to similarly restrain the Applicant wife. 

   [1] (2000) FLC 93-052.

   [2](2006) FLC 93-293.

3. The primary position of the husband is that the orders should be discharged.  But if orders remain in force in the terms in which they exist, then, as I have said, orders should also be made in parallel terms to similarly restrain the wife. 

4. I consider on the evidence before me that it is just and convenient to continue the orders, and I decline to discharge them. 

5. In arriving at the decision, I have taken into account the substance of the submissions contained in the Case Outline filed on behalf of the Applicant; I am persuaded, in this case that there is an objective risk of disposal of assets if the injunctive orders in those terms in existence (namely, the orders made on 16 January 2020) do not remain in force.

6. I arrive at that decision following the husband’s admission of actions in withdrawing $100,000.00 from a bank account and, on his evidence, expending the same at the casino. 

7. When regard is had to the husband’s evidence and of his estimates of value of the property of the parties held in Australia, it is immediately apparent that the bulk of that value is represented by the estimated equity of the parties in real property in which they continue jointly to live. 

8. On the estimate provided by the husband, that equity is approximated at $240,000.00.  Thus, the withdrawal and disposal of $100,000.00 represents a disposition already of an amount of funds which represent about 41.66 per cent of that asserted equity.  The impact of the actions taken by the husband, to which he has admitted, are immediately apparent, and in my view establish an objective risk of disposal of assets absent the orders. 

9. I am persuaded, therefore, in those circumstances, that it is appropriate to continue the orders in their current terms, noting that they permit the Respondent to pay particularised expenses but otherwise restrain him from dealing with property without the Applicant’s written consent.  So, for example, should the parties determine that they agree to sell the real property in which they both live, then that disposition can occur with their written consent and such disposition would not breach the orders in force.

10. As noted, an oral application was made on behalf of the husband that if, as I have determined, the orders made earlier in January this year should remain in force, I should make orders in the same terms to restrain the wife. 

11. It was submitted on his behalf that the basis upon which the Court would be persuaded that there is an objective risk of disposal of assets if such orders are not made is his evidence in his affidavit that the wife disposed of $60,000.00 in late December 2019 in a manner that was not detailed or particularised in her evidence. 

12. It is submitted on his behalf that I would be persuaded, if I accepted his evidence, that that disposition establishes an objective risk that she would dispose of assets if the injunctive orders sought on his behalf are not made. 

13. Submissions were made on behalf of the wife in response to the submissions made by the father’s legal representatives in this respect.  It was submitted that the withdrawals shown in Exhibit 1 - a bundle of bank statements from the B Bank for two bank accounts held in the wife’s name - revealed withdrawals and also transfers between accounts.  It was also submitted that such payments were made to meet business expenses relating to the wife’s operation of a business in Australia. 

14. Regard to Exhibit 1 seems to me on its face to establish a number of transfers between accounts.  It also seems to establish the receipt into accounts of payments of moneys that were previously invested by way of term deposit, supplemented by interest calculated on those term deposits.  Whilst there are a number of cash withdrawals, the balance of the withdrawals shown in those statements seemed to me to go to meeting expenses for daily living, to a large extent. 

15. Given the value of the property of the parties in total, including the value the husband ascribes to property held by him in Country C, I consider that, even if it were established that the wife had withdrawn funds and used them in a manner that was not appropriate and that was not, as is contended, in meeting business expenses, the husband’s position would be able to be protected because, on his case, he owns land in Country C that seems to be estimated to have a value of $940,000.00 in total – whilst, on his case, land owned by the wife in Country C is said to be valued at $100,000.00. 

16. I note, of course, that the references I have made to the property and the value of the property are exclusive of any value attributed to a business operated by the wife; and I also note that the husband asserts that this should be accorded a value of $500,000.00. 

17. I am not persuaded that there is an objective risk vis-à-vis the wife’s disposal of assets.  Therefore, I decline the application to make orders restraining her in the similar manner to which the husband is restrained. 

18. However, it is appropriate to record that, in the event the wife does not and is not able appropriately to account for the manner in which funds she has withdrawn from an account have been expended, then it remains open to the husband to contend that such funds should be notionally added back for the purpose of determining those orders which are just and equitable as between the parties by way of final property settlement order. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 31 January 2020.

Associate:     

Date:              31 January 2020