Small & Small (No 2)

[2016] FamCA 1055

FAMILY COURT OF AUSTRALIA

SMALL & SMALL (NO 2) [2016] FamCA 1055

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Small

RESPONDENT: Mr Small

FILE NUMBER: MLC 9067 of 2016

DATE DELIVERED: 2 December 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Vohra

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Gregory

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale Lawyer

Orders

1. That all outstanding applications are adjourned to 9.00am on Wednesday 8 February 2017.

2. That the orders made in paragraph 2 on 14 November 2016 are extended to the conclusion of the hearing on 8 February 2017.

3. That until the conclusion of the hearing on 8 February 2017, and unless with the written consent of the wife, the husband is restrained from, otherwise than in the ordinary course of business, and upon prior email to the wife, encumbering or further encumbering, dealing with, or disposing of, any real property, shares, investments and/or intellectual property:

   i.         belonging to the husband;

   ii.        held on the husband’s behalf; and

   iii.      held by entities under the husband’s direct or indirect control.

4. Reserve the costs of both parties of this day.

5. That there be liberty to both parties to apply on short notice.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons this day be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Small & Small 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 9067 of 2016

MS SMALL

Applicant

And

MR SMALL

Respondent

REASONS FOR JUDGMENT

1. This is the return date of an application by Ms Small (“the wife”), seeking orders of an injunctive nature against her husband, Mr Small (“the husband”).  The matter was before the Court on 14 November 2016 at which time three specific categories of orders were sought.  After some oral argument on that occasion, I made orders in terms of two of the three categories with some alterations that I had suggested.

2. The matter was adjourned until today because of the absence of the husband overseas on business.  It was not seriously suggested that he was avoiding the proceedings.  In the interim, the husband has become quite ill, and it is not suggested today that he is not indisposed.  That has necessitated an adjournment of the proceedings again. Natural justice requires the husband to have an opportunity to be heard.  For that reason, the matter is to be adjourned until 8 February.

3. That then leaves the issue before the Court today which relates to the wife’s amended application.  On the last occasion, the third of the three categories just mentioned concerned an injunction in relation to virtually every asset in which the husband has either a legal interest or an equitable interest, including an indirect interest by virtue of any corporate entitlement.  As a result of my comments then, the amended application has reduced the proposed order to deal with real property shares, investments and/or intellectual property.

4. The dilemma for me today is that by virtue of the husband’s illness, his solicitor has not been able to file material on his behalf. That creates a problem in trying to work out the balance of convenience and whether other assets are such that they cannot otherwise be adjusted if the husband did not comply with orders.

5. I repeat the reasons articulated on the last occasion, but it is my view that, absent some evidence from the husband, the Court is really not in the position to be able to say what the evil is that requires the injunction. The better way to deal with the matter, and what I consider a proper application of section 114 of the Family Law Act 1975 (Cth) (“the Act”), is to make an order of a similar nature to that that I made in paragraph 2(a) on 14 November.

6. I intend, accordingly, to restrain the husband from disposing, encumbering or dealing with real property, shares, investments and/or intellectual property either in his own name or held on his behalf or under his direction other than in the ordinary course of business and upon prior email to the wife.  That is intended to be a holding position.  It has been suggested that I should make the orders until further order because there is a possibility that interlocutory hearings may be further adjourned, but, absent some evidence as to exactly what the parties’ financial position is and what assets the Court is being asked to protect, it is not appropriate that I do so in circumstances where, at best, the husband’s position is that he opposes the orders.

ORDERS DELIVERED

1. I will have these reasons transcribed.

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 December 2016.

Associate: 

Date:  8 December 2016