Parsons and Timms (No 2)

[2011] FamCA 964

FAMILY COURT OF AUSTRALIA

PARSONS & TIMMS (NO 2) [2011] FamCA 964

FAMILY LAW – INJUNCTION – interim orders – application by the wife seeking orders to continue previous injunctions to restrain the husband from dealing with various assets – where the husband opposes the application on the basis that an injunction may be a risk to his financial circumstances and dealings – consideration of whether it was proper to grant the injunction – orders made restraining the husband from dealing with assets unless he first obtains the written consent of the wife.

Family Law Act 1975 (Cth)

APPLICANT: Ms Parsons

RESPONDENT: Mr Timms

INTERVENOR:

FILE NUMBER: ADC 2408 of 2011

DATE DELIVERED: 16 December 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 16 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mellows

SOLICITOR FOR THE APPLICANT: Anne McDonald Solicitor

COUNSEL FOR THE RESPONDENT: Mr Berman, SC

SOLICITOR FOR THE RESPONDENT: Fenwick Elliott Grace

Orders

1. During the period of the adjournment the husband is restrained and an injunction is hereby granted restraining the husband from:-

   (a)disposing of, transferring, encumbering or otherwise dealing with the following:-

   (i)     the properties at  D Street, Suburb B and E Street, Suburb F (ii)        the husband’s shareholdings and directorship of G Pty Ltd, H Pty Ltd, I Pty Ltd and J Pty Ltd;

   (iii)   increasing the outstanding balance of the residential loan on the Suburb B and Suburb F properties;

   (iv)   increasing the overdraft limits for the overdraft bank accounts with Bank SA

   SAVE AND EXCEPT in the conduct of his ordinary course of business;

   (b)disposing of, transferring, encumbering or otherwise dealing with the assets of his self-managed superannuation fund, namely the K Super Fund SAVE AND EXCEPT in the conduct of his ordinary course of business.

   PROVIDED THAT the husband is not restrained from any other transactions carried out with the prior written consent of the wife.

2. Further consideration of the proceedings is adjourned to 9.30 am on Friday 3 February 2012 before the Honourable Justice Burr.

3. Any further affidavit material to be relied upon to be filed and served by 4.00 pm on 30 January 2012.

4. At the request of the parties the Conciliation Conference fixed for Thursday 1 March 2012 is vacated and relisted to Monday 2 April 2012 at 2.30 pm before the Registrar.

IT IS NOTED that publication of this judgment under the pseudonym Parson & Timms (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2408 of 2011

Ms Parsons

Applicant

And

Mr Timms

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by way of an Application in a Case filed by the wife, seeking significant injunctions to restrain the husband from dealing with various assets.  That application was filed on 10 November 2011.  It came on before his Honour Justice Burr on 23 November 2011, when both parties were represented.  His Honour gave ex tempore reasons making orders in terms similar to those sought by the wife, but making it clear that the orders were only during the period of the adjournment.  His Honour then adjourned the application to the Duty Judge for this morning at 9.15 am and made directions for the filing and serving of answering documents by Tuesday of this week. 

2. Since the hearing before his Honour Justice Burr further material has been filed by the husband and the wife.  In particular, the husband has filed an affidavit on 13 December 2011 which is in response to the wife’s affidavit.  It is some 78 paragraphs, 22 pages, and has annexed to it a large number of documents being correspondence and corporate documents relevant to his financial affairs.  This morning before me Mr Mellows, on behalf of the wife, seeks that the orders made by Justice Burr continue but continue during a period of an adjournment which he seeks to allow him to obtain, through his instructing solicitors, appropriate instructions on the matters raised in the husband’s affidavit. 

3. The injunction itself is opposed by counsel for the husband on the basis that there is a risk to the husband’s financial circumstances and dealings caused by the injunction.  The injunction made by Justice Burr during the period of the adjournment specifically referred to an exception allowing the husband to continue dealing with the assets in the ordinary course of business. 

4. I accept that what might be construed by some to be “in the ordinary course of business” may be alleged to be not “in the ordinary course of business”.  The interpretation of that phrase (which is often used in other jurisdictions) is at risk in this jurisdiction, where the parties are often unable to agree for reasons not connected with the law or sensible considerations but more connected with the breakdown of their relationship. 

5. The Court gives consideration, both for orders during a period of adjournment and when making a final decision about an injunction, whether the basis for the injunction exists.  The Court needs to determine if it is proper in the circumstances for the injunction to be granted in accordance with the provisions of the Family Law Act1975 (Cth).

6. The affidavit material is still quite contentious.  The answers provided by the husband in relation to the material asserted by the wife provide some factual material but also comment on the husband’s attitude to the allegations made by the wife, such as the reply:

   I feel justified in taking money from the fund at will and to suit [my] own purposes is a complete nonsense. 

   (Paragraph 72.7 of the husband’s affidavit filed on 13 December 2011).

7. There are other similar type comments made throughout the affidavit.  Setting aside the comments and opinion, it is still not possible on an interim basis to come to a conclusion on the affidavit material as to who should be believed.  The Court, therefore, needs to weigh up the risks of inappropriate transactions taking place which would in some way disadvantage one of the parties in conducting the proceedings properly. 

8. It is significant in this matter that the parties separated some time ago and the proceedings were not instituted by the wife until June 2011. 

9. It is also significant that the husband makes an allegation that there has been some informal agreement, denied by the wife, as to the financial arrangements to be concluded between them. 

10. All of those matters need to be determined when the Court has had an opportunity to properly assess the evidence.  This is not possible on an interim hearing where the material filed by the parties is so contentious as to make it difficult for the Court to determine the significant agreed facts upon which a decision could be made. 

11. I have read the decision of his Honour Justice Burr made on 23 November 2011 in which he refers to the basis upon which he made the injunctions, being allegations made by the wife yet to be determined. 

12. His Honour determined in that case that he was satisfied that there was sufficient material to make it appropriate for an interim injunction during the period of the adjournment to be made. 

13. Again, I am being asked to further adjourn the matter so that consideration can be given by the wife’s legal advisors and the wife to the material received on 13 December 2011. 

14. The Court has put before the counsel the suggestion that any difficulties that would impact upon the husband’s capacity to carry on his ordinary business transactions should be overcome by extending the terms of the order so that it provides that any other dealings by the husband could take place if he obtains the prior written consent of the wife. 

15. The wife is in attendance this morning, but the husband is not.  So further negotiations concerning the terms of such an order would not have been possible. 

16. In view of the material before the Court and the amount of material that is in dispute, it is appropriate to grant the wife an adjournment of the application to allow her to consider the material now before the Court which she received recently.

17. In terms of the injunction during the period of the adjournment, I am also satisfied that because of the allegations made in relation to the concerns about the dealings with the assets and the likely impact that that might have upon any appropriate claims (if and when established by the wife) that further temporary injunction during the period of the adjournment is an appropriate order, save and except that the orders which were made by Justice Burr should be amended to provide for the husband having the capacity to carry out further transactions if he first obtains the written consent of the wife. 

18. I, therefore, order that the matter be adjourned. It would be appropriate for the matter to come back before me unless there is another adjournment date before Justice Burr earlier than the one available before me in the New Year.

19. In the circumstances, I will take the first date which is before Justice Burr on 3 February 2012 at 9.30 am with any further affidavits to be relied upon to be filed and served by 4.00 pm on 30 January 2012.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 16 December 2011.

Associate: 

Date:  20 December 2011