Martin and Martin and Anor - [2014] FamCA 98

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FamCA 98
Decision Date

CaseChat Overview and Summary

The application before the Family Court of Australia concerned an intervener, X Firm, which sought injunctive relief against the husband in proceedings between him and his wife, Ms Martin. The dispute arose from protracted property settlement proceedings between the husband and wife, who had reached a settlement without their lawyers. X Firm, the wife's former solicitors, alleged that the husband and wife had colluded to avoid paying X Firm's significant legal costs, which would not be satisfied by the proposed settlement. The immediate application sought orders for the husband to pay a substantial sum to X Firm and to provide certain documents.

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