Parris & Parris (No 3)
[2023] FedCFamC1F 930
•1 November 2023
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
The applicant wife filed an Application in a Proceeding seeking interim injunctions on an ex parte basis.
Given the wife sought that the matter proceed ex parte she did not file her documents in the usual course and sought that the listing of the matter be suppressed. Ultimately, I proceeded to deal with the matter in chambers in the absence of both parties and on the papers. Because of this the matter will need to be relisted as soon as practicable.
The parties are involved in proceedings for property adjustment orders consequent upon the breakdown of their marriage.
The wife filed an application for final orders on 10 July 2020 and that application will be listed for hearing on a date following release of the single expert report (the interviews for which are scheduled for February 2024). The matter is next listed for case management in the ordinary course on 11 December 2023 at which time it is anticipated final hearing dates will be allocated.
The parties have been involved in significant interlocutory litigation the history of which is set out in the wife’s affidavit.
The wife’s application for final property relief is not yet particularised but her lawyers rely on the fact that they have placed on the court record that she will seek an order that she receive all of the identified assets in Australia. Those assets are comprised of the following:
(a)Monies in trust – approximately $487,113 (after payment of the fees of the single expert);
(b)Husband’s entitlements in Super Fund 1; and
(c)Super Fund 4 (the subject of this application).
The total identifiable asset pool, according to the wife’s evidence, is about $892,426.
Inferentially the wife says that the husband may have other assets or financial resources which he has failed to disclose. I am unable to determine whether or not there is any merit in her claim in that regard.
The wife says that an injunction is necessary to protect the asset pool since dissipation of the available assets prior to trial will have the effect of defeating her claim. In essence she seeks an asset preservation order.
It is not essential that I find at this stage of the proceedings that the wife’s claim to receive the whole of the identifiable Australian assets is meritorious. For the purpose of determining the interlocutory application I am satisfied that the application is made bona fide and the basis upon which the wife advances her case is at least arguable.
The wife makes her application without notice to the husband.
THE LAW
This application is sought to be dealt with on an ex parte basis. In approaching an application for the making of ex parte orders it is appropriate that I have regard to the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which apply to such applications.
Given that the wife seeks an injunction I will need to be satisfied that the provisions of s 114 of the Family Law Act 1975 (Cth) are satisfied.
Section 114(1) of the Act provides:
(1)In proceedings of the kind referred to, in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter which to which the proceedings relate, including:
…
(e) an injunction in relation to the property of a party to the marriage.
Rule 5.11 of the Rules applies to application brought ex parte.
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.
The wife has filed an undertaking as to damages.
I am satisfied that there is unlikely to be any prejudice to the husband in an injunction for a short period of time until he is in a position to file evidence if he wishes to challenge the injunction. On the other hand, if the husband were to access and dissipate the funds then that act may have the effect of defeating the wife’s claim as presently drafted.
Because these proceedings are being heard and determined on an ex parte basis it is necessary that I give the husband the opportunity to be heard as soon as practicable and to that end I will list this matter before me for mention on Monday 6 November 2023 at 9.30 am. The wife should serve a copy of the orders and reasons for judgment together with her application, affidavit and the letter forwarded to the Registry seeking urgent listing forthwith on the solicitors for the husband.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 1 November 2023
0
0
2