FAMILY COURT OF AUSTRALIA
| MARTIN & MARTIN AND ANOR | [2014] FamCA 98 |
FAMILY LAW – INJUNCTIONS – Application for injunctive relief – application dismissed
| Family Law Act 1975 (Cth) |
| ABC v Lenah Game Meats Pty Ltd (2001) HCA 63; 208 CLR 199 Ascot Investments Pty Ltd v Harper and Harper (1981) FLC 91-000 Australian Security and Investments Commission & Rich (2003) FLC 93-171 Biltoft and Biltoft (1995) FLC 92-614 Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 Commissioner of Taxation & Worsnop & Anor (2009) FamCAFC 4 Deputy Commissioner of Taxation & Kliman & Kliman (2002) FLC 93-113 Dougherty & Dougherty v Dougherty (1987) FLC 91-823 Martin & Martin [2012] FamCA 869, (2013) 49 FamLR 76 Mullen & De Bry (2006) FLC 93-293 Puddy & Grossvard & Anor. (2010) FLC 93-432 Rowell & Rowell; Deputy Commissioner of Taxation (Intervener) (1989) FLC 92-026 Stanford v Stanford (2012) FLC 93-518 Zdravkovic & Zdravkovic (1982) FLC 91-220 |
| APPLICANT: | Ms Martin |
| RESPONDENT: | Mr Martin |
| INTERVENER: | X Firm |
| FILE NUMBER: | MLC | 9829 | of | 2007 |
| DATE DELIVERED: | 28 February 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 24 February 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ambrose |
| SOLICITOR FOR THE APPLICANT: | Cahill & Rowe Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Glick SC |
| SOLICITOR FOR THE RESPONDENT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE INTERVENER: | Mr Kirkham QC with Dr Ingleby |
| SOLICITOR FOR THE INTERVENER: | Nedovic & Co |
Orders
That paragraph 2 of the application filed 19 February 2014 is dismissed.
That paragraphs 3 and 4 of the said application are adjourned to 3 March 2014 at 10.00am.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin 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 9829 of 2007
| Ms Martin |
Applicant
And
| Mr Martin |
Respondent
And
| X Firm |
Intervener
REASONS FOR JUDGMENT
This discrete application in a case was filed on 19 February 2014 by X Firm who are the interveners in proceedings between Mr Martin and Ms Martin.
For my convenience, I shall refer to Mr Martin and Ms Martin as husband and wife respectively.
The substantive dispute is modestly simple. After long and protracted property proceedings during which X Firm acted for the wife, the husband and wife reached a settlement. The settlement seems to have been resolved without their lawyers involved. Over opposition from X Firm (and at that time a commercial litigation funding company as well), the husband and wife sought that the Court make final orders reflecting their settlement. Coleman J refused to make the orders they proposed after hearing from all parties (see Martin & Martin [2012] FamCA 869, (2013) 49 FamLR 76) .
A contentious fact then but not now is the amount of the legal costs that were owed by the wife to X Firm. X Firm…
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- Case
- [2014] FamCA 98
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it had the jurisdiction and power to grant the injunctive relief sought by X Firm, an intervener and creditor of one of the parties. Specifically, the court needed to consider if section 114 of the Family Law Act 1975 (Cth), which allows for the granting of injunctions, extended to an application by a third-party creditor in these circumstances. The legal issues also encompassed whether the behaviour of the husband and wife, as alleged by X Firm, contaminated the court's processes and whether the court should take into account the capacity of X Firm to recover its debt when considering any proposed orders.
The court treated the application as one for injunctive relief, noting that there was no dispute regarding the court's jurisdiction and power to make such orders. However, the central question was whether it *should* do so. X Firm relied on affidavits alleging the husband had failed to disclose significant financial assets related to a compulsory land acquisition, suggesting he was attempting to hide wealth to avoid paying his debts. The court acknowledged the arguments presented by X Firm's senior counsel, which included that the husband and wife's behaviour tainted the court's processes, that the asset pool was larger than contended, and that the court must consider the rights of third parties and the capacity of X Firm to recover its debt. The husband's senior counsel argued that an injunction was improper as there was no substantive relief to protect.
The court dismissed paragraph 2 of the application, which sought immediate payment of a sum of money. However, paragraphs 3 and 4 of the application, relating to the disclosure of documents, were adjourned to a later date. The court noted that it was not in a position to make findings of fact regarding the allegations of concealment of assets, as this was an interlocutory application. The ultimate determination of whether the proposed settlement orders between the husband and wife were just and equitable, particularly in light of X Firm's position, remained pending.
Orders
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Background
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Evidence
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Decision
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Legal Principle Established
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