P and S

[2008] FCWA 143

[2008] FCWA 143

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	P and S [2008] FCWA 143
CORAM	:	THACKRAY CJ
HEARD	:	27 OCTOBER 2008
DELIVERED	:	27 OCTOBER 2008
FILE NO/S	:	PTW 5540 of 1996
BETWEEN	:	P Applicant/Wife
AND
S Respondent /Husband
Catchwords:

INJUNCTIONS - Preservation of property - overseas property - restraining continuation of proceedings in overseas jurisdiction

Legislation:

Nil

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Hedges
Respondent	:	Self Represented Litigant

[2008] FCWA 143

Solicitors:

Applicant	:	Allen & Jasnic
Respondent	:

Case(s) referred to in judgment(s):

Nil

[2008] FCWA 143

1 The application before the Court this morning is the Form 2 Application of [Ms P] filed on 14 October 2008, in which she sought four orders.

2 The first was an injunction preventing the respondent, [Mr S], “from selling,

disposing or otherwise dealing with his interest” in a property in [New Zealand]. Second was an order sought until further order restraining [Mr S] from proceeding with an Application to Rescind the Order Extending Notice of Claim made in the District Court in [New Zealand] in May 2007. The third was for dispensation of personal service of the documents and the fourth was a catch all provision.

3 The third order relating to dispensation of service is no longer required. [Mr S]

has now filed documents in these proceedings and submitted himself to the jurisdiction
of this Court.

4 As to the merits of the other two matters, this case has a fairly complicated and

unusual history but, in a nutshell, proceedings were commenced before the Court quite some time ago in which there was dispute in relation to the distribution of assets, including real property owned by the parties in Australia. Those proceedings hit a wall when [Mr S] entered into bankruptcy. As a result, the property he owned vested in the trustee in bankruptcy and under the law, as it then stood, [Ms P]’s position was very difficult and the remedies available to her very limited.

5 It turns out, as [Mr S] himself has conceded today, that a full disclosure of the

assets owned by [Mr S] was not made to the trustee in bankruptcy. That in due course will raise issues of interest but the position that now presents itself, as I understand it, is that the creditors have been paid, but property remains in the form of this property in New Zealand.

6 In 2007, [Ms P] was successful in obtaining in the District Court in

[New Zealand]an order, apparently in the absence of [Mr S]. The form of that order is contained in the materials that are before the Court. [Mr S], as I now understand the position, is applying to the court in New Zealand to have that order set aside on the basis that the order was made in his absence and was also made on the basis of a number of assumptions which [Mr S] says are not well-founded.

7 The proceedings in New Zealand were due to have what was called a “formal

proof” hearing in the near future, but as a result of the way in which the matter is now progressing in New Zealand, the court there has determined that the matter should be the subject of a “judicial conference” hearing rather than a “formal proof” hearing. However, correspondence sent to this Court by the solicitors acting for [Mr S] in New Zealand (including a copy of correspondence sent to [Ms P]’s solicitors) indicates that notwithstanding that the matter is going to be the subject of what is called a “judicial conference” hearing, there will nevertheless be an application made at that hearing for [Ms P]’s notice of claim against the property in New Zealand to be withdrawn.

8 [Mr S]’s position is that [Ms P] may not have a very good claim or may have no

claim at all against the property in New Zealand because of the matrimonial property regime that exists in that country and because of the way in which the property was obtained by [Mr S]. I intend to proceed today on the assumption that there may be significant merit in that proposition.

[2008] FCWA 143

9 That, however, to my mind is not the end of the matter. If what [Ms P] is saying

in her documents is correct, which to some extent is corroborated by what [Mr S] himself has acknowledged today about the non-disclosure to the bankruptcy authorities, there are a number of matters of considerable concern to the Court. If what she says is correct (and it is not my function here today to determine whether what she says is correct or not because clearly I can’t do so on the basis of affidavit evidence alone), then it is arguable that actions have been taken by [Mr S] in order to defeat a legitimate claim of [Ms P] and that is the basis upon which the relief is sought by [Ms P]..

10 In the background also is the fact that originally there were quite substantial

child support arrears. [Mr S] has told me today the arrears have now been quite significantly reduced and that they are down to about $4,000, of which about $2,000 is penalties. But, in any event, there is money owing by [Mr S] to either the Government (in its capacity as the collector of child support) or to [Ms P], who has been supporting the children.

11 The effect, as I perceive it, of a successful outcome of [Mr S]’s proceedings in

New Zealand would be that [Ms P] would be left without any protection insofar as the New Zealand land is concerned. [Mr S]’s actions in previously not making a full disclosure to the bankruptcy authorities would not leave the Court with any degree of satisfaction that he could be relied on to comply with any injunction that this Court might make against him in personam and it is on that basis that [Ms P] seeks not only the injunction restraining [Mr S] from dealing with the property in New Zealand but also seeks to prevent him from pursuing the litigation in New Zealand.

12 In my view, there is no doubt it is appropriate to make the first of the orders that

is sought by [Ms P]. The property in New Zealand might appear to be the only property against which she could proceed in order to satisfy what prima facie was a legitimate claim for property settlement she had prior to the bankruptcy. The fact that in New Zealand the property could not be the subject of orders in favour of [Ms P] (because of the nature of the matrimonial regime in that country) does not mean to say that in property proceedings in this Court, the Court would ignore the ownership of that property.

13 I accept the submission made on behalf of [Ms P] that whilst, even under

Australian law, a property acquired in the circumstances in which this New Zealand land was acquired would generally be left with the party who received it, if that property were to be the only property against which a claim could be made in order to satisfy a legitimate claim under the Australian property regime, then that property could be taken into account.

14 Questions as to the enforcement of any order that might be made in this Court in

relation to the New Zealand land would be matters that would need to be dealt with after the orders had been made. I am not satisfied it would be beyond the realm of possibility that there could be successful execution of any order made in Australia in relation to that New Zealand property.

15 I therefore make an order in terms of paragraph 1 of the application.

[2008] FCWA 143

16 Paragraph 2 raises more difficult questions because this Court would be most

loath to interfere with proceedings that are taking place in another country. The order however is sought only “until further order of the Court”. Furthermore, if the order is not made then, in my view, [Ms P] would be at serious jeopardy of having the only property against which she can proceed to satisfy what might appear to be a legitimate claim whipped away from beneath her.

17 I do not consider there would be any disregard of the principle of comity

between courts, particularly the courts of Australia and New Zealand, which have always enjoyed a very close and harmonious relationship, if until further order of this Court [Mr S] were to be restrained from proceeding to seek to discharge an order already made by the District Court in [New Zealand].

18 I therefore also intend to make an order in terms of paragraph 2 of [Ms P]’s application and I do so.

19 The issue that then arises is how the matter proceeds from here. The parties

once attended the conciliation conference in this Court and indeed there was a pre-trial conference but matters have gone into abeyance since then for reasons that are well-known to the parties. [Ms P] will now need to pursue her application with appropriate diligence in this Court and the next appropriate step to be taken in these proceedings is for the parties to attend a conciliation conference to see whether or not they may be able to sort out a compromise of matters between them. If they can’t, then at the conciliation conference, directions can be made in relation to the further conduct of the proceedings.

I certify that the preceding [19] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate