Mullen & De Bry

In this matter, the husband appealed a Federal Magistrate's decision to dismiss his application for an interim injunction. The husband sought to restrain the wife from dealing with the proceeds of sale of the former matrimonial home, which had been transferred to her post-separation. He argued that the wife, who was located overseas, might dissipate the sale proceeds, thereby defeating any property settlement order in his favour. The Federal Magistrate had dismissed the application, finding no evidence of a scheme by the wife to defeat judgment by asset disposition, and relying on the principles established in *Waugh*.

The legal issues before the Full Court were whether the Federal Magistrate erred in his assessment of the evidence and the applicable legal principles. Specifically, the husband contended that the Federal Magistrate failed to consider the balance of convenience, that the *Waugh* principle was incorrectly applied or interpreted, and that the facts of the present case should have been distinguished from *Waugh*. The husband argued that the *Waugh* decision did not intend to create a threshold requirement for proof of a deliberate scheme to defeat judgment before an injunction could be granted.

The Full Court found that the Federal Magistrate had erred by focusing too narrowly on the existence of a deliberate scheme by the wife to defeat judgment. The Court clarified that *Waugh* does not lay down incorrect principles but was misunderstood by the Federal Magistrate. The Federal Magistrate should have considered a broader range of factors, including the risk of an order in the substantive proceedings being defeated, the wife's failure to offer an undertaking or consent to retaining funds, and the prejudice to both parties depending on whether an injunction was granted. The wife's overseas residence was a relevant factor to the risk of dissipation, not solely to the existence of a scheme.

Consequently, the Full Court allowed the appeal. The Federal Magistrate's decision was set aside, and the matter was remitted for reconsideration of the husband's application for an interim injunction, with the Federal Magistrate to properly consider all relevant factors, including the balance of convenience and the risk of an order being defeated.