NSAIR & GYAW

[2018] FamCA 303

FAMILY COURT OF AUSTRALIA

NSAIR & GYAW [2018] FamCA 303

FAMILY LAW – PRACTICE AND PROCEDURE – Anton Piller order – Where application for such order – Where discussion as to applicable principles – Where in the circumstances it is appropriate to make order sought ex parte.

Family Law Rules 2004 (Cth) rr 5.12, 14.04

Anton Piller KG v Manufacturing Process Ltd [1976] Ch 55
Wei & Huan [2015] FamCA 938

APPLICANT: Ms Nsair

RESPONDENT: Mr Gyaw

FILE NUMBER: PAC 59 of 2018

DATE DELIVERED: 7 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 7 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Soden

SOLICITOR FOR THE RESPONDENT:

Orders Made On 7 March 2018

1. This Application be heard and made on an ex parte basis, and listed on short notice.

2. Pursuant to r 14.04 of the Family Law Rules 2004 (Cth) the husband forthwith upon the service of this order on him permit the Applicant or her nominees, Mr F of G Lawyers (“the independent solicitor”), Mr H from J Locksmiths (“the safe expert”) and any law enforcement officer and security officer accompanying them to enter by any means necessary, the premises of B Pty Ltd at C Street, Suburb D NSW … including the basement and garage area of the premises to search and inspect the premises including the contents of any safe, vault or safe deposit boxes and thereafter to seize and remove any cash, gold or jewellery from the premises.

3. Forthwith upon service of these orders the husband provide to the independent solicitor all passwords or security codes and keys associated with the said vault(s) and safe(s) and security deposit boxes to enable the inspection of such items.

4. In the event the husband fails or refuses to provide access to open any safe, vault or safety deposit boxes, the safe expert is permitted to gain access to the safe and in the event that the safe expert is unable to do so at that time, then the independent solicitor is permitted to seize the safe, vault or safety deposit boxes from the premises and may engage a removalist to assist in the removal of such items.

5. The independent solicitor shall personally supervise and facilitate the execution of Orders 2 to 4 herein and in particular, shall:

   (a)attend at all times during the execution of the order at the business premises;

   (b)prepare a record of the execution of the order including a record of the items seized; and

   (c)maintain physical possession of the items seized pursuant to the orders pending further order of the Court and in the event of cash monies being seized, such funds are to be immediately deposited into the trust account of the wife’s solicitor;

6. The independent solicitor is restrained from releasing or allowing access to the seized items pending further order of the Court.

7. The Court requests that the Marshal of this Court and officers of the Federal Police and/or the New South Wales Police assist in the execution of these orders, including by accompanying the applicant or her nominee on the service and execution of the orders.

8. Leave is granted to either party or to any other person or entity affected by these orders to restore the matter to the list on giving 24 hours’ notice to the Court.

9. In the event that the Respondent husband fails or refuses to provide access to the premises at C Street, Suburb D NSW … including the basement and garage area of those premises, then the locksmith or safe expert and the independent solicitor is permitted to go and access such premises by such method as is reasonably available including forcefully gaining entry to such premises.

10. The Applicant wife shall cause a sealed copy of her Application in a Case, supporting affidavits and a sealed copy of these orders to be served upon the Respondent husband within 7 days of the date of the premises being accessed pursuant to these orders.

11. The present application is adjourned for further judicial case management to Tuesday, 20 March 2018 at 2.15pm.

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 Nsair & Gyaw 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 PARRAMATTA

FILE NUMBER: PAC 59  of 2018

Ms Nsair

Applicant

And

Mr Gyaw

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the Application in a Case filed by the wife on 6 March 2018.

2. In support of the orders sought in that Application in a Case, the wife relies upon her affidavit sworn and filed 6 March 2018, and the affidavit of a solicitor, Mr F, also sworn and filed 6 March 2018. 

Context

1. The primary proceedings are, in part, property proceedings between the applicant wife and the respondent husband.  The proceedings were commenced by the wife by Initiating Application filed 9 January 2018, and in that application, the wife seeks property orders relating to the parties’ assets, in particular, the businesses B Pty Ltd conducted by the husband.

2. The proceedings, notwithstanding that they have been filed only recently, have already had interim orders made by two judicial officers. 

3. On 11 January 2018, two days after the wife’s Initiating Application was filed, ex parte orders were made by her Honour Hannam J that provided:

   Until further order, the respondent husband be and is hereby restrained by injunction from withdrawing any moneys from any National Australia Bank account held in his sole name or jointly with any other person, and in this respect, the applicant wife shall notify the National Australia Bank of the effect of this order and provide the National Australia Bank with a copy of these orders within seven days of the date of these orders.

4. It appears that as events came to pass, the husband had, by the time of the ex parte orders being made, managed to withdraw significant funds from the bank accounts subject to the later injunction. 

5. On 12 February 2018, further orders were made by this Court on an ex parte basis as a consequence of the wife becoming aware of significant funds being removed from bank accounts by the husband and also becoming aware that he may seek to depart the Commonwealth of Australia.

6. On 12 February 2018, orders were made as follows: 

   a)that leave is granted to the applicant wife to proceed ex parte in respect of her application in a case filed 12 February 2018; and

   b)that until further order, the respondent husband [Mr Gyaw] born … 1977 is hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 from leaving or attempting to leave from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the said respondent husband on the Family Law Watch list enforced at all points of arrival and departure in the Commonwealth of Australia and maintain his name on the watch list until the court orders its removal.

7. It appears that as a consequence of those orders, the husband, notwithstanding an attempt to depart the Commonwealth of Australia was prevented from doing so and proceedings returned to this Court on 28 February 2018 primarily in relation to the question of parenting.  The Court also has presently listed for determination an application for leave by the wife to commence spousal maintenance proceedings out of time and for leave to commence property proceedings out of time.  These applications are listed for hearing on 20 March 2018. 

The current Application

1. The wife’s application filed 6 March 2018 seeks urgent ex parte orders, often referred to as Anton Piller[1] orders in relation to gaining access to the husband’s business premises and a safe that she believes to be on those premises which she further believes contains significant moneys representing moneys withdrawn by the husband from various bank accounts and also the net proceeds of sale of a property disposed of by the husband in the sum of approximately $116,000.00.

   [1] In reference to the case of Anton Piller KG v Manufacturing Process Ltd [1976] Ch 55

2. The orders that she seeks in summary are:

   a)that the application be heard ex parte;

   b)that pursuant to rule 14.04 of the Family Law Rules 2004 (Cth), the husband, forthwith upon service of this order, permit the applicant or her nominee and any law enforcement officer to enter the premises of B Pty Ltd at C Street, Suburb D, New South Wales, … including the basement and garage area of the premises to search and inspect the premises including the contents of any safe vault or safe deposit boxes and thereafter remove any items or to seize and remove any cash, gold or jewellery from the premises;

   c)that forthwith upon service of the orders, the husband provide to the independent solicitor all passwords or security codes and keys associated with the said vault and/or safes and security deposit boxes to enable inspection of same;

   d)that in the event that the husband fails or refuses to provide access to open any safe, vault or safety deposit boxes, the safe expert is permitted to gain access to the safe and in the event that the safe expert is able to do so at that time, then the independent solicitor is permitted to seize the safe vault or safety deposit boxes from the premises and may engage a removalist to assist in the removal of such items;

   e)that pursuant to rule 14.04 of the Family Law Rules 2004, in the event that the husband fails or refuses to provide access to the premises at C Street, Suburb D, the independent solicitor with such assistance as he may deem necessary be permitted to gain access to the said premises by any reasonable means; and

   f)that the independent solicitor shall personally supervise and facilitate the execution of the above orders. 

3. The wife relies upon her affidavit in support of the orders sought in which she deposes relevantly that she believes that the husband is holding substantial money in a safe or vault at his business premises at C Street, Suburb D.  She deposes that bank statements in evidence in these proceedings reveal some $733,000.00 in withdrawals from bank accounts since the parties separated in October 2017.  Otherwise, she refers to the husband’s affidavit filed 27 February 2018 where he purports to explain dispositions of his cash withdrawals and asserts that she does not accept such assertions. 

4. The husband asserts that various funds have been repaid to friends who he says, advanced moneys for the purchase of the former family home at K Street, Suburb L (“the Suburb L property”) including the sum of $390,000.00 paid to the husband’s father. 

5. Exhibit “A” is a letter from the husband’s father clearly evidencing that those funds were made available to the husband by way of gift towards the purchase of the Suburb L property. 

6. The husband also acknowledged in his affidavit filed 27 February 2018 that he holds the proceeds of sale of a previous property at Suburb M in cash moneys which would appear to be in the sum of about $116,000.00. 

7. The wife otherwise deposes that she has become aware of the circumstances that there may well be a safe or vault situated at the husband’s business premises by reason of the observations of the parties’ son N now aged 12 in mid-2015, the son having reported to her that he had seen a safe, and cash money in that safe at that time.  The mother has reason to believe that cash moneys that had been withdrawn by the husband from various NAB bank accounts and moneys comprising the net proceeds of sale of the aforementioned property may well be held by him in cash in the safe or vault situated at his business premises.

8. The mother attests that J Locksmiths are willing to assist in opening any safe or vault at the husband’s premises and that Mr F’s solicitor who has sworn an affidavit filed 6 March 2018 is willing to act as an independent solicitor. Exhibit “B” indicates that he is on the list of supervising solicitors maintained by the Law Society of New South Wales for the purposes of Anton Piller orders such as are sought today. 

9. Rule 5.12 of the Family Law Rules 2004 deals with applications made in the absence of the other party. The procedure for ex parte applications is an exception to the general principles that any person who is to be the subject of an order should be served with the application and supporting affidavit and thus be put on notice as to the orders sought against them. It is a well-accepted principle, and rule 5.12 of the Family Law Rules 2004 casts upon the applicant in this matter an onus of satisfying the Court as to various matters to enable the Court to proceed to deal with her application on an ex parte basis.

10. The rule provides relevantly that the applicant should give evidence as to whether there has been a previous case between the parties, and if so, the nature of the case.  The previous proceedings between the parties are referred to above.   In particular, the interim orders that have been made as against the husband.  The wife is required to provide particulars of any orders currently in force, and they are referred to above.  She is required, also, to provide details of any breach of previous orders by the husband and, in doing so, provide evidence that notwithstanding injunctions made in January, the husband facilitated withdrawal of significant funds from bank accounts. 

11. The applicant, in compliance with her obligation, advises the Court that the husband or his lawyer have not been told of the intention to make the present application, and her reasons for doing so are patently obvious in that there is a concern that if notice should be given that in the event that there are cash moneys or other items of value in the safe custody of the husband, those items will be dissipated or be removed.  The applicant is required to give evidence as to whether there is likely to be any hardship, danger or prejudice to the husband if the order is made, and in that regard, the answer on the evidence before the Court is clearly “no”, but it would simply require the husband to give full and proper disclosure of cash moneys in his possession, with those moneys and other items of value being effectively remitted into the possession or control of the wife.

12. The applicant is otherwise required to give evidence of her capacity to give an undertaking as to damages, but having regard to the nature of the orders sought today, no such undertaking is required.  She is required to inform the Court as to the nature of the damage or harm that may result if the order is not made, and, quite properly, she says that the risk is that cash moneys or items of value would simply be dissipated by the husband and be unable to be traced.  She is required to tell the Court why the order must be urgently made, and she has done so, as the circumstances of these cash moneys and the existence of the safe has only recently come to her attention by reason of her further conversation with the child N on 28 February 2018, as deposed to.

13. Otherwise, having regard to the matters referred to above, pursuant to rule 5.12 of the Family Law Rules 2004, the Court is satisfied that it is appropriate for the current application to proceed ex parte, in the circumstances outlined above.

14. The order sought by the applicant is an order specifically provided for in Rule 14 of the Family Law Rules 2004:

Application for Anton Piller order

(1)A party may apply for an Anton Piller order:

(a)requiring a respondent to permit the applicant, alone or with another person, to enter the respondent's premises and inspect or seize documents or other property;

(b)requiring the respondent to disclose specific information relevant to the case; and

(c)restraining the respondent, for a specified period of no more than 7 days, from informing anyone else (other than the respondent's lawyer) that the order has been made.

(2)The applicant may apply for an Anton Piller order without notice to the respondent.

(3)An application for an Anton Piller order must be supported by an affidavit that includes:

(a)a description of the document or property to be seized or inspected;

(b)the address of the premises where the order is to be carried out;

(c)the reason the applicant believes the respondent may remove, destroy or alter the document or property unless the order is made;

(d)a statement about the damage the applicant is likely to suffer if the order is not made;

(e)a statement about the value of the property to be seized; and

(f)if permission is granted, the name of the person (if any) who the applicant wishes to accompany the applicant to the respondent's premises.

1. The Rule provides that a party may apply for an Anton Piller order that requires the respondent to permit the applicant, alone or with another person, to enter the respondent’s premises and to inspect or seize documents or other property. Such is the application made by the applicant wife. The applicant may, pursuant to rule 14.04(2), apply for such order without notice to the respondent, and she has appropriately done so in the context of this application.

2. Rule 14.04(3) requires that the application be supported by an affidavit that includes:

   a)a description of the documents or property to be seized or inspected and she has complied with that obligation to the best of her knowledge and ability;

   b)the address of the premises where the order is to be carried out and she has provided that information to the Court;

   c)the reason why she believes the husband may remove, destroy or alter property unless the order is made and that evidence is patently obvious from the application before the Court in terms of cash money or portable items of jewellery or valuables; 

   d)under subparagraph (d) of rule 14.04, the damage that she may suffer in the event the order is not made and that clearly is the dissipation of what would otherwise be matrimonial assets in the hands of the husband, such assets being readily disposed of, being cash or valuables;

   e)a statement as to the value of the property to be seized and, to the best of her knowledge, there have been cash withdrawals from bank accounts totalling some $790,000.00; together with the net proceeds of sale of a property, to the value of about $116,000.00; together with unspecified items of valuables or jewellery that may exist in the safe; and

   f)evidence, from the person proposed to accompany her in attending at the husband’s premises, his consent and that is comprised in the affidavit of Mr F, solicitor, who, as has been said, is on the list of supervising solicitors maintained by the Law Society of New South Wales for the purposes of Anton Piller orders.

3. The requirements of rule 14.04 substantially incorporate the common law requirements to be satisfied for an Anton Piller order to be made as set out in Wei & Huan [2015] FamCA 938 at [8] – [9].

4. Given the possibility that the safe exists, and the possibility that the contents of any such safe or vault will be dissipated or depleted in the absence of an Anton Piller order being made, it is appropriate, in all the circumstances, to accede to the orders sought by the applicant in the application before the Court today (Wei & Huan [2015] FamCA 938).

5. Orders will be made accordingly.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 7 March 2018.

Legal Associate: 

Date:  9 May 2018