Rabino and Rainsford - [2020] FamCA 142

FAMILY COURT OF AUSTRALIA

RABINO & RAINSFORD

[2020] FamCA 142

FAMILY LAW – INJUNCTIONS – injunctions made in relation to employment contracts and severance payments – where the status and recoverability of an essentially unsecured loan made by the parties’ self-managed superannuation fund is uncertain – where the injunctions are designed to seek to preserve various entitlements the husband may be entitled to receive from his current employer - where it is necessary in the interim period to seek to preserve the available pool of assets for property adjustment.

Family Law Act 1975 (Cth)

Broxham & Broxham & Ors [2012] FamCA 775

APPLICANT:

Ms Rabino

RESPONDENT:

Mr Rainsford

FILE NUMBER:

BRC

4468

2019

DATE DELIVERED:

10 March 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

5 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Hackett

SOLICITOR FOR THE APPLICANT:

Hirst & Co

COUNSEL FOR THE RESPONDENT:

Mr G Waterman

SOLICITOR FOR THE RESPONDENT:

Fox & Staniland Lawyers

Orders

That until trial or earlier Order, the Respondent husband is hereby restrained, whether by himself, or by his servants or agents, from:
(a)entering into any new contract of employment without:
(i)first exhibiting the full terms of such employment contract to an Affidavit to be filed and served upon the Applicant wife; and
(ii)twenty one (21) days having expired from such filing and service,
or earlier with the written consent of the wife.
(b)taking any steps that may impact in any way, his entitlement to a severance payment under his existing contract of employment.
That noting that the solicitors on the record for the husband have provided the husband’s email address, the Court shall, upon this Order being made, forward a copy of the Order to that email address for the husband’s attention.
That the husband pay the wife’s costs of and incidental to the Application in a Case filed 25 February 2020 and heard today, with the quantum of such costs and the date for payment to be reserved to trial.

Trial directions

That these proceedings be set down for Final Hearing for not more than two (2) days commencing at 10.00am on 14 May 2020 in the Family Court of Australia at Brisbane.
That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 16 April 2020.
That each party file and serve on each other no later than 4.00pm on 23 April 2020:
(a)       one (1) consolidated Affidavit of evidence in chief;
(b)       an updated Financial Statement; and
(c)       one (1) Affidavit of each witness intended to be relied upon at trial.
That each party file and serve on each other no later than 4.00pm on 7 May 2020, a case outline setting out:
(a)a precise minute of the final orders sought;
(b)a relevant chronology;
(c)a schedule of the asserted assets, liabilities and financial resources of the parties;
(d)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FamCA 142
Decision Date: 10 March 2020

CaseChat Overview and Summary

In proceedings before Baumann J of the Family Court of Australia, the applicant wife sought interlocutory relief against the respondent husband. The dispute concerned the husband's potential actions regarding his employment and severance pay, which the wife alleged could impact her entitlements.

The court was required to determine whether to grant an injunction restraining the husband from entering into new employment contracts without providing their terms to the wife and observing a notice period, and from taking any steps that might affect his entitlement to a severance payment under his existing contract. The court also considered the wife's application for costs.

Baumann J granted the injunction, ordering that the husband be restrained from entering new employment contracts without first exhibiting their full terms via affidavit to the wife and allowing 21 days to expire, or obtaining her written consent. The husband was also restrained from taking any steps that could impact his severance payment entitlement. The court ordered the husband to pay the wife's costs of the application, with the quantum and payment date to be determined at trial. The proceedings were set down for a final hearing commencing on 14 May 2020, with detailed directions provided for the filing and service of evidence, financial statements, case outlines, and objections to evidence.

Orders

Orders of the court

That until trial or earlier Order, the Respondent husband is hereby restrained, whether by himself, or by his servants or agents, from:

(a) entering into any new contract of employment without:

(i) first exhibiting the full terms of such employment contract to an Affidavit to be filed and served upon the Applicant wife; and

(ii) twenty one (21) days having expired from such filing and service,

or earlier with the written consent of the wife.

(b) taking any steps that may impact in any way, his entitlement to a severance payment under his existing contract of employment.

That noting that the solicitors on the record for the husband have provided the husband’s email address, the Court shall, upon this Order being made, forward a copy of the Order to that email address for the husband’s attention.

That the husband pay the wife’s costs of and incidental to the Application in a Case filed 25 February 2020 and heard today, with the quantum of such costs and the date for payment to be reserved to trial.

Trial directions

That these proceedings be set down for Final Hearing for not more than two (2) days commencing at 10.00am on 14 May 2020 in the Family Court of Australia at Brisbane.

That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 16 April 2020.

That each party file and serve on each other no later than 4.00pm on 23 April 2020:

(a) one (1) consolidated Affidavit of evidence in chief;

(b) an updated Financial Statement; and

That each party file and serve on each other no later than 4.00pm on 7 May 2020, a case outline setting out:

(a) a precise minute of the final orders sought;

(b) a relevant chronology;

(d) a list of Affidavits and Applications and/or Responses intended to be relied upon at trial; and

(e) a list of authorities.

That the parties file and serve a list of objections to evidence, if any, by no later than 4.00pm on 7 May 2020.

The parties file and serve a reply to objections to evidence, if any, by no later than 4.00pm on 11 May 2020.

10.

That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without leave of the Court.

11.

That in the event that either party wishes to cross examine any Expert at the final hearing, that party shall provide written notice to the Expert of such intention as soon as reasonably practicable, but by no later than 4.00pm on 23 April 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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