FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Parris & Parris (No 3) [2023] FedCFamC1F 930
File number: SYC 4604 of 2020 Judgment of: CHRISTIE J Date of judgment: 1 November 2023 Catchwords: FAMILY LAW – EX PARTE APPLICATION – Where the respondent by his apparent recent retirement is entitled to funds in his credit with the relevant fund – Where the applicant seeks that the respondent be restrained by injunction from dissipating the monies in the fund – Where the applicant asserts if the respondent has notice of her application the respondent may deal with funds in a manner which takes them outside the reach of the court – Where if the respondent were to do so it may have the effect of defeating the applicant’s claim – There is unlikely to be any prejudice to the respondent in the short term – Where the applicant has provided an undertaking as to damages – Ex parte order for an injunction restraining the respondent – Order for the applicant to file and serve material on the respondent and listing the matter for mention. Legislation: Family Law Act 1975 (Cth) s 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.11
Cases cited: In the marriage of Lee (1977) FLC 90-314
Waugh and Waugh (2000) FLC 93-052; [2000] FamCA 1183
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 1 November 2023 (ex parte) Place: Sydney The Applicant: No appearance The Respondent: No appearance ORDERS
SYC 4604 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PARRIS
Applicant
AND: MR PARRIS
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Upon noting the undertaking of damages filed by the wife, until 4pm on 6 November 2023, the husband is restrained from dealing in any way with funds presently or previously standing to his credit with Super Fund 4.
2.Forthwith the wife file the following documents forwarded to the Court and dated 31 October 2023:
(a)Application in a Proceeding;
(b)Affidavit; and
(c)Undertaking as to Damages.
3.Forthwith the wife serve the following documents on the husband’s solicitors:
(a)Her Application in a Proceeding forwarded to the Court for filing on 31 October 2023;
(b)Her affidavit forwarded to the Court for filing on 31 October 2023;
(c)Her Undertaking as to Damages forwarded to the Court for filing on 31 October 2023;
(d)The letter to the Registry of the Federal Circuit and Family Court of Australia (Division 1) dated 31 October 2023;
(e)A copy of these Orders; and
(f)A copy of these Reasons for Judgment.
4.Forthwith the wife serve a copy of the Orders of 1 November 2023 on the Q Association.
5.The matter be listed for mention at 9.30 am on 6 November 2023.
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…
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- AGLC
- Parris & Parris (No 3) [2023] FedCFamC1F 930
- Case
- [2023] FedCFamC1F 930
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether an ex parte application was justified and whether the proposed injunction was necessary and proportionate to prevent the frustration of the court's processes. The court considered the principles of procedural fairness and the exceptional circumstances that would warrant hearing a matter without notice. Ms. Parris's history of Mr. Parris failing to comply with previous court orders and his excessive spending habits further supported the urgency of the application. The court had to balance the need to protect Ms. Parris's final relief against the respondent's right to procedural fairness.
The court found that the circumstances justified an ex parte application, as Ms. Parris had demonstrated a real risk that the respondent would dissipate the funds if given notice. The injunction was deemed necessary and appropriate, with the court noting that there would be minimal prejudice to Mr. Parris in the short term. The court also accepted Ms. Parris's undertaking as to damages. Consequently, the court issued an ex parte injunction restraining Mr. Parris from dealing with the funds in Super Fund 4 until the matter was heard and determined. Additionally, the court ordered Ms. Parris to file and serve the relevant documents on Mr. Parris and listed the matter for mention.
The final orders included restraining Mr. Parris from accessing his Super Fund 4 until 4pm on 6 November 2023, requiring Ms. Parris to file and serve the necessary documents, and listing the matter for mention on the same date.
Orders
Orders of the court
SYC 4604 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS PARRIS
Applicant
AND:
MR PARRIS
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 NOVEMBER 2023
THE COURT ORDERS THAT:
1. Upon noting the undertaking of damages filed by the wife, until 4pm on 6 November 2023, the husband is restrained from dealing in any way with funds presently or previously standing to his credit with Super Fund 4.
2. Forthwith the wife file the following documents forwarded to the Court and dated 31 October 2023:
(a) Application in a Proceeding;
(b) Affidavit; and
(c) Undertaking as to Damages.
3. Forthwith the wife serve the following documents on the husband’s solicitors:
(a) Her Application in a Proceeding forwarded to the Court for filing on 31 October 2023;
(b) Her affidavit forwarded to the Court for filing on 31 October 2023;
(c) Her Undertaking as to Damages forwarded to the Court for filing on 31 October 2023;
(d) The letter to the Registry of the Federal Circuit and Family Court of Australia (Division 1) dated 31 October 2023;
(e) A copy of these Orders; and
(f) A copy of these Reasons for Judgment.
4. Forthwith the wife serve a copy of the Orders of 1 November 2023 on the Q Association.
5. The matter be listed for mention at 9.30 am on 6 November 2023.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
It is necessary to demonstrate that such an approach is necessary and other relief is not preferable or appropriate: In the marriage of Lee (1977) FLC 90-314.CONSIDERATION The decision to hear a matter without notice to one party is prima facie a denial of procedural fairness. In the ordinary course the respondent is entitled to know what relief is sought and the evidence upon which the application is based. The respondent is also entitled to file their own evidence and be heard on the application. Accordingly, it is only where the circumstances justify a departure from these important principles that an ex parte application such as this is warranted. The urgency here arises as discussed below from the fact that the wife submits the financial circumstances of the husband have changed and the notice she and her lawyers received about that change was not by way of letter or updated disclosure but by reading media reports. The applicant says the matter should be dealt with without notice to the respondent to avoid the possibility of the respondent taking action which will prejudice both her interim and final relief. Further, the wife sets out the basis upon which she says that there is a risk that failure to grant the injunctive relief she seeks will jeopardise her final relief. She says that the husband has failed to comply with previous orders of this Court necessitating an application which led to sale of a property (and that the husband’s failure to comply with the court orders meant that arrears were discharged from the proceeds of sale). The husband has an entitlement in a fund called Super Fund 4. On 11 July 2023 the husband’s entitlements in that fund were in the sum of $83,616. The husband is entitled to withdraw his entitlements in Super Fund 4 upon his retirement as a professional sportsman. The wife has provided evidence which suggests that the husband retired from professional sport in 2023. Further, the wife attached articles from the news media announcing the retirement of the husband from professional sport. The wife has attached to her affidavit a social media post by the husband which she says was from late 2023. The social media post is in the husband’s name and depicts the back of a man walking in Sydney. The caption by username “[…]” reads: “Jet leg [sic] gets ya [emoticon]”. The wife has concluded (not unreasonably) that the husband may be in Australia and accordingly she is concerned that following his retirement he may seek to access his Super Fund 4. She says that if the husband has notice of the application he may deal with the funds in a manner which takes them outside the reach of the Court before her application for an injunction can be heard and determined. I must be satisfied that the injunction is necessary and goes no further than is necessary to prevent a frustration of the Court’s processes: Waugh and Waugh (2000) FLC 93-052. In that regard the wife points to evidence that the husband has:(a)Spent excessively on lifestyle in particular travel in Country R, Country S and Country T;(b)Failed to pay any significant amount by way of child support; and(c)Allowed mortgages to go into arrears.