Molla & Safar
[2024] FedCFamC2F 910
•4 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Molla & Safar [2024] FedCFamC2F 910
File number(s): SYC 1871 of 2024 Judgment of: JUDGE BECKHOUSE Date of judgment: 4 July 2024 Catchwords: FAMILY LAW – INJUNCTIONS – Where Husband has failed to attend court and comply with Orders – ex parte Anton Piller order made to enable search of premises and seizure of cash and financial documents – Appointment of independent solicitor – Undertakings as to damages given by Wife – Restraints on conduct of Husband towards Wife – Suppression of orders Legislation: Family Law Act 1975 (Cth) ss 79, 102PE, 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.11, 5.19, 5.20
Cases cited: Anton Piller KG v Manufacturing Processes Ltd and Others [1976] Ch 55
Blueseas Investments Pty Ltd & Mitchell & McGillivray (1999) FLC 92-856
Child Support Registrar & Nixon (2007) 36 Fam LR 57
Talbot & Talbot (1995) FLC 92-586
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 4 July 2024 Place: Sydney Solicitor for the Applicant: Ms Alim of Marsdens Law Group The Respondent: No appearance ORDERS
SYC 1871 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MOLLA
Applicant
AND: MR SAFAR
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
4 JULY 2024
DEFINITIONS:
A.‘Applicant’ means the Applicant Wife.
B.‘Respondent’ means the Respondent Husband.
C.‘Independent Solicitor’ means Mr H of J Law Firm.
D.‘Financial Documents’ means any documents relevant to these proceedings, including but not limited to, bank statements, financial statements, financial reports, business activity statements, and payslips.
E.‘Premises’ means the premises situate at and known as B Street, Suburb E, NSW and D Street, Suburb E, NSW.
F.‘Search Party’ includes the Applicant Wife and the Independent Solicitor.
ON AN EX PARTE BASIS AND PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Leave be granted to determine the Application in a Proceeding filed on 1 July 2024 (‘Application’) on an ex parte basis.
2.Leave is granted to the Wife to rely upon the affidavit filed on 1 July 2024.
3.The Respondent must permit the Search Party to enter forthwith upon the Premises and any other structure on the Premises (including but not limited to a garage or shed) on any weekday at any hour between 9.00am and 5.00pm for the purposes of;
(a)To search all parts of the Premises for cash in any currency and to seize such cash.
(b)To search all parts of the Premises for Financial Documents bearing any of the following names:
(i)Mr Safar.
(ii)C Pty Ltd.
(iii)F Pty Ltd.
(c)The Respondent is required to do all acts and things necessary to enable the Search Party to access the Premises and to permit and enable access to all lockers, vaults, storerooms, drawers, bags, luggage, suitcases, motor vehicles, chests, closets, trunks, cabinets, safe-deposit boxes, garages, sheds, granny flats, or safes located on the Premises, including making available any passwords, passcodes or keys.
(d)To remove into the custody of the Independent Solicitor, to be held by him until further order of the Court, all cash and Financial Documents seized and is to be held pending further order of the Court.
4.The Independent Solicitor shall personally supervise and facilitate the execution of these Orders herein and in particular shall:
(a)attend at all times during the execution of the Order at the premises;
(b)prepare a record of the execution of the Order, including maintaining a record of the cash notes and Financial Documents seized;
(c)deposit the cash seized into the trust account of J Law Firm to be held pending further order of the Court;
(d)maintain physical possession of the Financial Documents seized pending further order of the Court;
(e)deposit the cash seized into the trust account of J Law Firm with such funds to be held pending further Order of the Court; and
(f)maintain a physical possession of the documents that are seized pending further order of the Court.
5.Service of these Orders and sealed copies of the Application of the Applicant and the affidavits in support of the Application be served on the Respondent at the time of the execution of these Orders.
6.The Independent Solicitor is restrained from releasing or allowing access to the seized cash and Financial Documents.
7.The Applicant, her servants and agents be otherwise restrained from accessing the seized cash notes or Financial Documents.
8.The Applicant is permitted to seek the urgent assistance of either the Marshall of this Court and/or officers of the Australian Federal Police and/or officers of the NSW Police and/or NSW Office of the Sherriff, to provide such assistance as may be required, and if necessary by force, to assist in the execution of these Orders, including by accompanying the applicant or her nominee on the service and execution of the Orders.
9.The Respondent be restrained from assaulting, molesting, attending upon or otherwise interfering with the Applicant.
10.Pursuant to s 102PE of the Family Law Act 1975 (Cth), the following information shall be supressed from publication until service of these Orders in accordance with Order 5:
(a)The Orders made on 2 July 2024.
(b)The Orders made on 4 July 2024.
(c)The Wife’s Application in a Proceeding filed on 2 July 2024.
(d)Affidavit of Ms Molla sworn 1 July 2024 and filed on 1 July 2024.
(e)Case Outline document filed on 3 July 2024.
11.Within 24 hours of service and execution of the Orders in accordance with Orders 3 – 5, the legal representative for the Applicant will advise the Chambers of Judge Beckhouse whereupon steps will be taken to formally revoke the suppression order and the matter will be relisted.
THE COURT NOTES THAT:
A.Upon service and execution, this matter should be listed urgently to allow the Husband to respond and for that purpose, it is appropriate for this matter to be given a short return date.
B.The Court considered this matter to be one where urgent action is required and for this reason these Orders are made today on an ex parte basis.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
These are settled reasons for judgment that were delivered on 4 July 2024. Grammatical, mathematical, and literal errors have been corrected from the transcript for comprehension. References have been included and if the transcript contains an incorrect or incomplete reference, it has been corrected.
By an Initiating Application that was filed on 12 March 2024, the applicant wife has sought orders for the alteration of property interests between the parties pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
The matter is before me today because the wife has filed an application seeking urgent ex parte orders, including an Anton Piller order.
The questions for me to determine are:
(a)whether there is an urgency and a need for the Court to make orders as sought by the applicant wife without notice being provided to the responded husband?
(b)whether the applicant wife's orders should be made by the Court to ensure that the wife does not suffer damage to her substantive application before the Court under s 79 of the Act?
(c)whether the Court can be satisfied that the applicant wife's undertaking as to damages could be given and any damages that may be claimed by the respondent husband could be reserved until final property orders are made?
(d)whether an order should be made restraining the husband from approaching or interfering with the applicant wife?
(e)if orders are made, whether they should be suppressed until after these orders have been executed, and whether any other documents should be suppressed?
BACKGROUND
By way of background the wife, Ms Molla, was born in 1981 and is 42 years old.
The husband, Mr Safar, was born in 1974 and is 50 years old.
The parties were married in 2007. They separated on 12 March 2021.
There are three children of the marriage: X, who was born in 2009 and is 14 years old; Y, who was born in 2015 and is nine years old; and Z, who was born in 2020 and is four years old.
The children live with the wife in the former matrimonial home at Suburb G. X has a mild intellectual disability and is dependent upon the wife for his care.
The husband lives in Suburb E.
Proceedings in this Court were commenced by the wife on 12 March 2024. The husband has not filed any documents in response to the wife's application despite orders being made for him to do so on 2 April 2024, 7 May 2024 and 18 June 2024.
The wife alleges that the husband has failed to provide full and frank disclosure to her despite the orders made by the Court on 2 April 2024 and 7 May 2024.
Whilst initially, the husband had lawyers appearing on his behalf, on 12 June 2024, a Notice of Ceasing to Act was filed by them.
On 18 June 2024, the Court directed the husband to attend court or be legally represented at the appearance on 2 July 2024. Those orders were served on him.
The husband has failed to attend court appearances on 18 June 2024 and 2 July 2024.
It has previously been noted that all assets of the parties, including the former matrimonial home, are held in the name of the husband.
The wife, importantly, alleges that substantial amounts of cash from properties owned by the husband are in his possession. She says he has not provided any disclosure in relation to the sale of the properties. She alleges he is storing the net proceeds in cash at either his home or the factory for his business.
Rule 5.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) enables the Court to deal with an application that is made without notice to a party. That procedure is an exception to the general principles that any person who is to be the subject of an order should be served with the material filed.
Ordinarily this Court will require a party who will be affected by an order to be served and for that party to be given a right of appearance to respond to the application (see, for example, Child Support Registrar & Nixon (2007) 36 Fam LR 57).
However, an exception arises in respect to ex parte proceedings. I am asked to make these orders on an ex parte basis. To do so, I must be satisfied that there is an urgent need to do so and, in particular, for an Anton Piller or search order to be issued.
Reference to an Anton Piller order arises from a case known as Anton Piller KG v Manufacturing Processes Ltd and Others [1976] Ch 55 (“Anton Piller”). In Talbot & Talbot (1995) FLC 92-586, at 81,805-81,806, Lindenmayer J determined that this court has jurisdiction to make an Anton Piller order as was made in the English case, either by way of an application under the Act or pursuant to the court's inherent jurisdiction. In that decision, Lindenmayer J referred to a passage from the decision in Anton Piller as setting out what is required before a court may grant an Anton Piller order.
Those criteria have now been incorporated into r 5.19 of the Rules. Those rules set out the procedure for applying for an Anton Piller order. Rule 5.20 sets out four specific matters that the court needs to be satisfied of before making an Anton Piller order.
The first is that, pursuant to r 5.20(a), an applicant seeking the order has a strong prima facie case on an application for final orders. In that respect, I have regard to the wife's affidavit. There, she sets out the following matters of concern:
·That the husband is holding cash in the Suburb E premises following disclosures made by the children;
·That the husband will remove and hide that cash;
·She has obtained bank statements through subpoenas that do not reveal the location of these funds. The funds she refers to arise from the disposal of a range of properties that were held in the sole name of the husband during the course of the marriage.
·If the husband removes cash funds or hides them in another location, it will severely reduce the asset pool available for distribution. She says the only asset of significance that she can identify right now is the former matrimonial home.
I am therefore, satisfied that the wife has established a strong prima facie case.
Rule 5.20(b) requires the applicant to provide details of the potential or actual loss and damage to her and that it will be serious if the search order is not made. In that respect, I repeat the matters just set out.
Rule 5.20(c) requires the applicant to provide sufficient evidence to satisfy me on a prima facie basis that:
(i) the respondent possesses important evidentiary material; and
(ii)there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence …
The wife has provided that evidence in her affidavit. She sets out that she is concerned that the husband will hide and remove the cash referred to. She further deposes receiving information that he intends to file for bankruptcy. Further to this, the wife refers to the husband previously removing cash from the matrimonial home at the time of separation and her inability to locate those funds through subpoenas.
Furthermore, throughout the affidavit, the wife has set out information about her lack of knowledge of the financial position of the parties and the efforts she has gone to, to obtain that information. Annexed to her affidavit are significant searches that have been undertaken on her behalf by her legal representative in relation to determining the financial position of the parties. I note that to date the wife alleges that no meaningful financial disclosure has taken place. Whilst the wife has now received a financial statement for the company known as C Pty Ltd, she raises concerns that the husband has threatened to liquidate this company.
She is also concerned that the husband has multiple aliases and sets out in her affidavit seven of these. As a result, not only does she seek a search order for cash in any currency stored in any locker, safe or vault, but she also seeks financial documents and material relevant to these proceedings that are either in the husband's personal name or in the name of his company. Rule 5.19(3)(a) provides that the applicant is required to provide a statement about the description of the documents or property to be seized and inspected, and I am satisfied that she has done so concisely throughout her affidavit and in the orders she is seeking.
Rule 5.19(3)(b) provides that the applicant is required to provide the address of the premises where the order is to be carried out. Again, I am satisfied that the wife has identified both addresses in her affidavit and in the orders sought.
Rule 5.19(3)(c) requires the applicant to provide the reason they believe the respondent may remove, destroy, or alter the documents and property unless the order is made. I am satisfied that the wife has set out her grave concerns about the husband's conduct in the affidavit and this extends to him engaging in these proceedings in a difficult, non-cooperative manner as well as a past history of removing cash from premises. I am also satisfied that the wife has set out details of the statement of value of the property to be seized in accordance with r 5.19(3)(e).
Rule 5.19(3)(g) requires the applicant to provide the consent of one or more lawyers to act as independent lawyers for the purposes of r 5.21. Details of the lengths that the wife has gone to are, again, set out in her affidavit. I am asked to appoint Mr H of J Law Firm as an appropriate person to be appointed as an independent lawyer for this purpose. I am satisfied that the material provided by the wife satisfies the requirements of r 5.19. I am also satisfied that Mr H is an appropriate person to be appointed.
In all of the circumstances, I have reached the conclusion it is appropriate for the court to make the orders that have been sought.
In making the orders, it is noted that the court is not in a position to make findings of fact. However, the court is satisfied on the balance of probabilities that, in the event that the orders are not made, there is a risk that the contents of the safe or vault located in the premises referred to in the wife's affidavit will be depleted. And in those circumstances, it will be extremely difficult, if not impossible, to subsequently determine what the contents of that locker, safe or vault were.
In that context, the court notes that the effective operation of the court, in a large part, is based on the full and frank disclosure by parties of assets held in their names or joint names which potentially may form part of the matrimonial pool.
This has not been done to date. Given the possibility that there is a real risk that the contents of the safe, locker or vault will be depleted in the absence of an Anton Piller order, an order to that effect will be made.
Rule 5.19 requires the applicant to provide particulars if there is a person to accompany the applicant to the respondent's premises. She proposes to attend with Mr H. She seeks an order that the court request the Marshall of this court and officers of the Australian Federal Police and/or the New South Wales Police to assist in the execution of these orders, including by accompanying her for the service and execution of the orders. I am unaware of the powers of these agencies and individuals to assist in this process, but I will allow her to make a request to those agencies and provide a copy of these orders to them. It is a matter for these authorities whether they are able to assist with the execution of the orders. I will also add the New South Wales Office of the Sheriff to the agencies included in the order so that they can also be requested to assist if appropriate.
The wife initially indicated she did not have the means to give an undertaking as to damages. However, on reflection, her lawyer advised that she was prepared to do so on the basis that her claim under s 79 was identified as the source of funds to meet that undertaking if necessary.
The wife asserts the husband also controls the parties' finances, and therefore, this influences the orders that can be made pursuant to s 79.
In Blueseas Investments Pty Ltd & Mitchell & McGillivray (1999) FLC 92-856, it was observed that a party's impecuniosity would not prevent the court making an order on an ex parte basis. I am therefore satisfied on the basis upon which she seeks the injunctions.
The wife also seeks an order under s114 of the Act that the husband be restrained from assaulting, molesting, attending upon or otherwise interfering with her.
The wife has deposed serious and significant family violence. Whilst I cannot make findings about this now, I need to act cautiously to protect the safety of the wife. She emphasises that, since the proceedings were commenced, the husband has embarked upon a course of conduct designed to either limit her entitlements or to cause her hardship unless she withdraws these proceedings. The injunction is warranted both on the grounds that she will attend upon the husband's premises when the order is executed and due to his conduct towards her to date.
For the husband to obtain knowledge of this application, all the orders subsequently made would entirely undermine what the wife hopes to achieve, that is, access to documents necessary to prosecute her case and access to cash she alleges is held by him.
It is therefore appropriate that I make a suppression order in relation to any documents that arise from this application or refer to this application. I intend to make this order under s 102PE on the basis that it is necessary to prevent prejudice to the proper administration of justice and is necessary to protect the safety of the wife. I make this as an interim order, which should be revoked upon the service and execution of the Anton Piller order. For this reason, an order will be made requiring the legal representative for the wife to notify my chambers within 24 hours of the service and execution of the order taking place. It is anticipated that, at that point, the suppression order will be revoked in chambers and directions made for the urgent listing of the matter.
I now pronounce the orders. The orders I make will be on an ex parte basis and pending further order of the Court.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 6 August 2024
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