PETERSON & PETERSON

[2013] FamCA 926

FAMILY COURT OF AUSTRALIA

PETERSON & PETERSON [2013] FamCA 926

FAMILY LAW – INJUNCTION – pursuant to s 114 of the Family Law Act from disposing of, transferring, selling or otherwise encumbering property – restrained from harassing, menacing, assaulting – full and frank disclosure of financial circumstances

APPLICANT: Ms Peterson

RESPONDENT: Mr Peterson

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6181 of 2013

DATE DELIVERED: Friday, 9 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Johns J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That until further order the respondent husband by himself, his servants and/or his agents be and is hereby restrained by injunction pursuant to s 114 of the Family Law Act from disposing of, transferring, selling or otherwise encumbering property, corporate entities, shares and/or monetary funds in which the husband holds any legal or equitable interest or from otherwise depleting or dissipating assets save for the purposes of meeting his reasonable living expenses.

2. That until further order the respondent husband by himself, his servants and/or his agents be restrained from harassing, menacing, assaulting and/or intimidating the wife.

3. That in accordance with Division 13.1.2 of the Family Law Rules 2004 the husband within 21 days hereof provide to the wife and her lawyers full and frank disclosure of his financial circumstances including but not limited to copies of the following documents:

   (a)Copies of his three most recent income tax returns and accompanying notices of assessment;

   (b)Copies of the income tax returns and financial accounts for any companies, partnerships, businesses or trusts in which the husband has an interest for the last three years;

   (c)Statements for the last three years in relation to any bank account (including credit cards and loans) either in the husband’s name, the husband’s name jointly with another person, or in the name of any entity in which the husband holds a public office or otherwise has an interest;

   (d)Documents evidencing all investments including but not limited to shares either in the husband’s name or through entities in which the husband holds an interest;

   (e)Current statements in relation to any superannuation fund in the husband’s name;

   (f)A copy of the husband’s current employment contract including details of his remuneration and personal incentives for the 2013/2014 financial year;

   (g)All and any documents in his possession, power and control regarding the donation/payment of $105,000 made by him to a payee in Country A;

   (h)All and any other documents that have come into existence in the past three years evidencing the husband’s income drawings or dividends from all sources.

4. That the wife do all such acts and things as may be required to personally serve upon the husband a sealed copy of these orders.

5. That the wife's Initiating Application filed 26 July 2013 be adjourned to the Judicial Duty List at 10.00am on 6 September 2013.

6. In the event that the husband fails to appear at the adjourned hearing of this matter on 6 September 2013, the wife have liberty to apply to proceed with her application for interim orders on an undefended basis.

7. That the wife’s costs of this day be reserved to 6 September 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peterson & Peterson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6181 of 2013

Ms Peterson

Applicant

And

Mr Peterson

Respondent

REASONS FOR JUDGMENT

1. The application that comes before me today is that of the applicant wife, Ms Peterson, who is aged 52 years and is employed as in adminstration.  She is represented by counsel, Mr Wilson.  The respondent husband is Mr Peterson, who is aged 52 and is employed as a manager.  He has not appeared at court today.  He was called at 10.00 am and at 11.15 am, and has not answered the call.

2. The parties commenced cohabitation in 1991 and married later in that year. They have recently separated, in May of 2013. They are currently living separately under the one roof. There are two children of the marriage, Mr B, who is aged 19, and C who is aged 17. Before me today is the wife’s initiating application, which was filed on 26 July 2013. In that application, she seeks interim orders which include an order that the husband be restrained from dealing with property, and that is an application made pursuant to section 114 of the Family Law Act.  She also seeks an order today that the husband be restrained from harassing her, menacing, assaulting or intimidating her.  Finally, she seeks orders for disclosure and she seeks that that disclosure be made within 21 days.  In support of her application, the wife relies upon an affidavit that was filed also on 26 July 2013. 

3. That application, the affidavit in support and the financial statement were served on the husband yesterday, 8 August 2013, at approximately 3.30 pm.  I was directed in particular to paragraphs 63, 64 and 65 of the wife’s affidavit in support of her application for property injunctions.  In her affidavit, she deposes to circumstances where she has discovered an email which is an email from the husband to a person whom the wife describes as a close friend of the husband.  In that email, the husband seemingly is indicating that he is to transfer, or has transferred, or will be transferring a sum of $105,000 to a Australia Overseas Aid Fund for the benefit of a charity called the D Fund.  The transmission of those funds is said to have occurred on or soon after 7 June 2013.  The email communication is annexed to the wife’s affidavit and is in particular attached at annexure MP19. 

4. I also note at paragraph 67 of the wife’s affidavit, the parties’ pool of assets.  She there deposes that the pool of assets, excluding superannuation, is in the order of $3 million.  Of note from that paragraph of her affidavit is the fact that the majority of the parties’ assets, apart from the matrimonial home, are held or controlled by the husband.  It may well be that there is a simple explanation for the transmission of funds from Australia to the overseas fund as set out in the wife’s affidavit.  The situation is that I simply do not know and cannot make findings this day as to what the circumstances of that movement of funds is.  However, I am satisfied that it is necessary to make injunctions as sought by the wife today, to ensure that assets are preserved and protected until there can be a full and complete understanding as to what has occurred. 

5. The wife also seeks orders in relation to personal injunctions.  In her affidavit material, she sets out a history of verbal abuse, of what can be described as inappropriate behaviour by the husband towards the wife.  Again, I can make no findings in relation to those matters, but they are of sufficient gravity to give me cause for concern and to, in my view, justify the making of personal injunctions this day. 

6. Finally, I am asked to make orders with respect to disclosure.  I note from the affidavit material that there have been many requests made by the wife’s solicitors to the husband directly for him to produce documents.  In particular, I note the correspondence that is annexed to the wife’s affidavit material – a letter from her solicitors dated 26 February 2013, and I note that she further deposes to other requests made on 4 March 2013 and later.  The rules of court clearly require that all parties are to make full and frank disclosure, and there are specific provisions contained within the rules as to the documents that are required to be produced.  The orders as sought by the wife are in keeping with those rules, and I am content to make orders as sought by the wife that disclosure be made, save that the disclosure should be made within 21 days.

7. Accordingly, I propose to make orders as follows. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 August 2013.

Associate:     

Date:  9 August 2013