PARSONS & TIMMS

[2011] FamCA 930

FAMILY COURT OF AUSTRALIA

PARSONS & TIMMS [2011] FamCA 930

FAMILY LAW – INJUNCTION – interim orders – application by the wife seeking injunctions personally against the husband – where the husband argues that the injunctions are not necessary – where the injunctions sought are only for a limited period of time – where it was appropriate for the Court to err on the side of caution – orders that the husband be restrained from dealing with assets save and except in the ordinary course of business.

Family Law Act 1975 (Cth)

APPLICANT: Ms Parsons

RESPONDENT: Mr Timms

FILE NUMBER: ADC 2408 of 2011

DATE DELIVERED: 23 November 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 23 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mellows

SOLICITOR FOR THE APPLICANT: Ann McDonald

COUNSEL FOR THE RESPONDENT: Mr Berman SC

SOLICITOR FOR THE RESPONDENT: Fenwick Elliott Grace

Orders

IT IS ORDERED, DURING THE PERIOD OF THE ADJOURNMENT TO 9.15 AM ON FRIDAY 16 DECEMBER 2011, THAT:-

1. The husband be restrained and an injunction is hereby granted restraining the husband from:-

   (a)    disposing of, transferring, encumbering or otherwise dealing with the properties or holdings mentioned in paragraph 3 of the aforesaid Application in a Case filed by the wife 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 Cope Superannuation Fund SAVE AND EXCEPT in the conduct of his ordinary course of business.

IT IS NOTED that publication of this judgment under the pseudonym Parsons & Timms 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 wife

And

Mr Timms

Respondent husband

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an Application in a Case filed by the wife on 10 November 2011.  She filed an Affidavit in support on the same date.  The parties have been able to agree some of the procedural orders that are being sought by her but the husband contests the injunctions being sought by the wife.  Counsel for the wife acknowledges that it is inappropriate to seek any injunctions in restraint of the activities of any of the companies mentioned in the Application in a Case because service has not been effected upon them and they are not represented here today.  The wife does though press for the injunctions personally against the husband as are detailed in the said Application in a Case.  The application for those injunctions is vigorously opposed by the husband.

2. I acknowledge that the husband has not yet had the opportunity to file answering documents and again, by consent, there has been an Order made by me today that those documents are to be filed by him on or before 13 December 2011.  Thus the husband has not had the opportunity to put his case before the Court.  However, the injunctions being sought are as to a limited period of time until 16 December 2011 when there will be an opportunity for the Court to review the matter.  At that time those injunctions can be further sustained or different orders can be made.

3. Mr Berman SC, and I do no justice to his lengthy submissions, contends that there is simply no reason for the injunctions as given the lengthy period of separation between the parties, there has been nothing about which the wife was entitled to complain that would suggest that the injunctions were necessary.  However I disagree, and in the difficult balance which a Judge is required to exercise in interim proceedings I have determined that it is appropriate to err on the side of caution and preserve as much as possible of the asset pool until the husband has had the opportunity to offer a full explanation in his answering documents.  The orders that I intend to make, in my view, amount to relatively conservative orders and must always be subject to the husband’s capacity to continue his ordinary trading as he has done since the parties’ separation in December 2004.

4. There may well be some merit in Mr Berman’s contention that the husband’s conduct has, in that period of time, been something which is not entitled to be criticized.  However, I do note in various paragraphs of the wife’s affidavit that there are sufficient grounds, as must of course be established on any application for injunction, for the granting of the injunctions sought.  Specifically in paragraph 14 of her affidavit she attests to the fact that the husband has purchased property at Suburb B about which she was previously unaware.  Further, in paragraph 15 of her affidavit, she contends that she was unaware that various companies in which the husband has an interest have also purchased properties since separation.  That same contention is made in paragraph 16 of her affidavit.  Paragraph 25 of her affidavit, in my view, provides the principal reason for the granting of the injunctions during the period of the adjournment, specifically in relation to his superannuation fund at least.   The information provided by the wife (if that information is indeed accurate) might suggest an attitude on the part of the husband to the effect that he can do what he likes with the various funds within his control.  The wife alleges that in a conversation that she had with him he indicated that he effectively could and would do what he liked with the superannuation fund.  He is also seeking to make some formal changes specifically in relation to the Trustees of that fund and annexure “MP 9” to the wife’s affidavit is a letter from Fenwick Elliott Grace, lawyers of Adelaide, who, in that letter, indicate a desire to remove one of the Trustees of the superannuation fund and replace that Trustee with another, that Trustee being the husband’s partner as I understand it, Ms C. 

5. In all of the circumstances I am satisfied that an injunction during the course of the adjournment is entirely appropriate and is further, in my view, founded on the allegation made by the wife in paragraph 34 of her affidavit where she indicated that the husband was contemplating buying a travelling home for $150,000 to travel around Australia and she further refers to past holidays taken by him and future holidays he intends.   It could well be, of course, that he is entitled to do just that.   It could well be that the distribution of the financial resources between the parties is already such that the wife has her entitlement or indeed if she has a further entitlement, there are ample other assets that would sustain her application for property settlement filed in these proceedings.  However, as I said, I am satisfied that grounds have been established for the injunctions in the wife’s affidavit and in the balancing exercise I must administer, it is my view that erring on the side of caution is the appropriate approach during the brief period of adjournment of only some 3 weeks..

I certify that the preceding five (5) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 23 November 2011.

Associate: 

Date: