Tadros & Tadros & Ors

[2020] FCCA 1118

FEDERAL CIRCUIT COURT OF AUSTRALIA

TADROS & TADROS & ORS [2020] FCCA 1118

Catchwords:
FAMILY LAW – Property – review of Registrar’s decision against granting an abridgement of time – where the husband sought an injunction against the wife from cancelling insurance policies – ex parte application – application granted.

Legislation:

Family Law Act 1975 (Cth), s.114

Family Law Rules 2004 (Cth), r.5.12
Federal Circuit Court Rules 2001 (Cth), rr.5.01, 5.03

Cases cited:

Myers & Myers [2011] FMCAfam 1104

Sieling & Sieling (1979) FLC 90-6276-7

Vibbard & Garcia [2012] FamCAFC 114

Applicant: MR TADROS

First respondent: MS TADROS

Second respondent: COMPANY A

Third respondent: COMPANY B

Fourth respondent: COMPANY C

Fifth respondent: COMPANY D

File Number: MLC 3410 of 2020

Judgment of: Judge Mercuri

Hearing date: 27 April 2020

Date of Last Submission: 27 April 2020

Delivered at: Melbourne

Delivered on: 27 April 2020

REPRESENTATION

Counsel for the applicant: Ms Tulloch

Solicitors for the applicant: Sharon Holmes

Counsel for the respondents: None

Solicitors for the respondents: None

ORDERS

1. The matter be adjourned to 7 May 2020 at 2:15pm for directions.

2. All parties be permitted to appear by telephone, video link or such other electronic method as may be directed by the court.

3. Leave is granted to the husband for his documents to be electronically signed and witnessed in accordance with Joint Practice Direction No. 2 of 2020.

4. Company A be joined to these proceedings as the second respondent, for the limited purpose of making injunctions against the said company (“Company A”).

5. Company B be joined to these proceedings as the third respondent, for the limited purpose of making injunctions against the said company (“Company B”).

6. Company C be joined to these proceedings as the fourth respondent, for the limited purpose of making injunctions against the said company (“Company C”).

7. Company D be joined to these proceedings as the fifth respondent, for the limited purpose of making injunctions against the said company (“Company D”).

AND THE COURT ORDERS THAT UNTIL FURTHER ORDER:

1. The respondent wife, Ms Tadros, also known as Ms Tadros (“the respondent wife”), personally or by any company, partnership, trust, servant and/or agent on her behalf, be hereby restrained by injunction from assigning, transferring, cancelling, mortgaging or otherwise encumbering or changing the beneficiary of, or making a claim upon, or declining any automatic increase option for any insurance policy she owns or in which she has an interest, including but not limited to the following policy numbers with, held or issued by the second respondent, the third respondent, the fourth respondent and/or the fifth respondent:

   (a)...82;

   (b)...88; and

   (c)...74, (collectively “the Company A policies”)

   save as otherwise provided in these orders or with the prior written consent of the applicant husband.

2. The respondent wife shall do all such acts and things and sign all such documents as may be required to ensure that the sole beneficiary of the Company A policies shall remain as, or forthwith be reinstated as, the applicant husband, Mr Tadros (“the applicant husband”).

3. The applicant husband shall pay or cause to be paid the premiums for the Company A policies as and when they fall due.

4. Each of the applicant husband and respondent wife and their servants and/or agents be and are hereby restrained by injunction from making any claim for payment pursuant to the Company A policies, save as may be provided by a prior written agreement between them.

5. The second respondent, third respondent, fourth respondent and/or fifth respondent each be and are hereby restrained by injunction from doing any act or thing which would cause or enable the respondent wife to breach these orders, regardless of any instructions that she may give to any of them in relation to the Company A policies, including but not limited to:

   (a)Cancelling any of the Company A policies;

   (b)Altering the sole beneficiary of any of the Company A policies to be any person other than the applicant husband; and/or

   (c)Cancelling or declining any ‘automatic increase option for any of the Company A policies.

6. Within 7 days, the applicant husband serve a copy of these orders on each of the respondents and thereafter file an affidavit of service attesting to service.

7. The duty list hearing on 10 June 2020 at 9:45am be vacated.

8. Within 48 hours of the date of these orders, the applicant file an undertaking as to damages in respect of the second respondent, third respondent, fourth respondent and fifth respondent each joined to the proceedings pursuant to orders 4, 5, 6 and 7 herein.

AND THE COURT NOTES THAT:

(A)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

(B)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(C)Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

(D)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(E)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

IT IS NOTED that publication of this judgment under the pseudonym Tadros & Tadros & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3410 of 2020

MR TADROS

Applicant

and

MS TADROS

First respondent

COMPANY A

Second respondent

COMPANY B

Third respondent

COMPANY C

Fourth respondent

COMPANY D

Fifth respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

1. This is an application for review of a Registrar’s decision in relation to an urgent application filed by the applicant husband. In addition, the applicant seeks leave to proceed on an ex parte basis in relation to certain orders sought in his application.

2. In particular, in his application filed on 3 April 2020, the husband sought, among other things, interim orders for:

   a)the joinder of four named superannuation and/or insurance companies;

   b)all time be abridged to enable this application to be listed for an urgent ex parte hearing;

   c)for orders 1 to 11 of the orders sought in his application be made on an ex parte basis; although in submissions today, counsel for the applicant indicated that, in fact, it was orders 1 to 12 that were being sought to be made on an ex parte basis; and

   d)an order injuncting the respondent wife from dealing with or cancelling any of the life insurance policies referred to in the husband’s affidavit.

3. In support of his application, the applicant filed an affidavit affirmed on 2 April 2020, in which he deposed to the following:

   a)his relationship with the respondent;

   b)the parties separated in mid-2018;

   c)there were three children of the relationship;

   d)the parties ran a business together;

   e)the parties took out large loans in 2000 and were advised to take out various insurance policies;

   f)the parties confronted financial difficulties and ultimately the business was sold;

   g)the parties purchased a family home in Town E in 2012 in the respondent wife’s sole name;

   h)throughout this period, the parties continued making payments in respect of various insurance policies, including the life insurance policies the subject of these proceedings;

   i)in 2008, the respondent wife was diagnosed with stage 4 breast cancer; and

   j)the premiums of the various insurance policies have continued to be met by the husband for his business activities, both during the relationship and post-separation.

4. The husband’s affidavit also stated that the respondent’s wife’s condition is such that she is not likely to recover, and continues to receive regular treatment.  The current situation with COVID-19 is such that the wife’s health condition is more uncertain. 

5. He also stated that although he has sought to resolve property matters with his wife outside of the litigation process, the wife has not engaged meaningfully in these negotiations.  His evidence was that the wife has threatened to cancel various life insurance policies held for her benefit, and then after further discussion she indicated that she would not do so.

6. The husband also gave evidence that the wife put their holiday house at Town F up for sale in 2018 without consulting the husband. He stated that property was also in her sole name and that, as a result of decisions made to protect the matrimonial assets during the relationship, most of the parties’ assets are in the wife’s name.

7. The husband assesses the non-separation asset pool to be worth in the vicinity of $1,000,000, with liabilities of just over $200,000.

8. In addition, he believes that the wife has retained a further sum, being the net proceeds of sale of the Town F property, and is likely to receive a further sum by way of an inheritance following the death of her late father in 2018.

Urgency

1. The husband says that this matter ought to be dealt with urgently and on an ex parte basis because he is concerned that if the wife is given notice of his application, she may carry out the threat made and cancel her insurance policies.  He says that the consequence of that, even if done in a fit of pique, will be irreversible.

2. It was submitted that if the policies are deemed to be property for the purposes of the Family Law Act 1975 (Cth), they constitute a significant part of the asset pool. Accordingly, that would significantly affect the outcome of these proceedings, for which the husband could not adequately be compensated.

3. Having regard to the factors in Myers & Myers [2011] FMCAfam 1104 (“Myers”), as noted with approval in Vibbard & Garcia [2012] FamCAFC 114, the applicant has satisfied me that absent an urgent listing, the applicant would be prejudiced in relation to the substantive relief sought other than in ways common to other matters awaiting the court’s attention in the normal course. He has also satisfied me of the other requirements in Myers.  For those reasons, I propose exercising my discretion to list this matter on an urgent basis. 

Ex parte

1. I turn then to the question of whether orders should be made on an ex parte basis.  As stated earlier in these reasons, the applicant argued that the court, in exercising its discretion to list the matter for an urgent hearing, should also consider making the orders sought on an ex parte basis.

2. As stated by the Full Court of the Family Court in Sieling & Sieling (1979) FLC 90-6276-7 at [78254]:

   Whenever a court acts ex parte it is departing from one of the primary rules of natural justice, that each part should be given an opportunity to present his or her case to the Court.  For this reason, an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the Court.

3. In this case, it is said that it is necessary to deal with this matter urgently and on an ex parte basis in order to preserve property of the parties. 

4. In light of:

   a)the wife’s threat to cancel the insurance policies; and

   b)the fact that if they are indeed to be property for the purposes of these proceedings, any such cancellation would be irreversible and would significantly affect the asset pool in this matter;

   I am satisfied that it is appropriate in these circumstances for this matter to be dealt with on an urgent basis and for the orders sought to be made on an ex parte basis.

5. Moreover, I am satisfied that it is appropriate for the orders to be made on an ex parte basis, having regard to the Family Law Rules 2004 (Cth).

6. In submissions on behalf of the applicant, reference was made to rule 5.12 of the Family Law Rules 2004 (Cth) in relation to the applications without notice. Similar provisions are found in the Federal Circuit Court Rules 2001 (Cth) at rule 5.01 and 5.03.

7. Relevantly, the applicant is required to establish the matters set out in rule 5.03 of the Federal Circuit Court Rules 2001 (Cth).

8. In this case, having regard to the affidavit material filed on behalf of the applicant, I am satisfied that:

   a)there have been no previous proceedings between these parties;

   b)there are no current proceedings between these parties;

   c)there are no current orders in force between these parties; and

   d)whilst there have been some attempt to negotiate property matters generally, no steps have been taken to advise the respondent of the applicant’s intention to seek these orders for the reason that the applicant is concerned that to do so might trigger the respondent to cancel the insurance policies and therefore render any claim by the applicant in relation to those policies nugatory.

9. I have already discussed the nature and the immediacy of the damage or harm which may result if the proposed orders are not made.  For similar reasons, it was submitted on behalf of the applicant that an abridgment of time alone without ex parte orders would not be more appropriate.  I accept those submissions.

10. Simply having the matter listed with a shorter period of time does not deal with the risk that by giving notice to the respondent wife that she may not then take action which is irreversible and cancel the insurance policies.

11. Importantly, the applicant has indicated a preparedness to give an undertaking as to damages in relation to the insurance companies that he seeks to have joined to these proceedings.  Given the size of the asset pool, there is some money at his disposal to meet any award of damages made in relation to those matters, and in reliance upon that undertaking.

12. This matter was initially listed by the registry for a first return on 6 June 2019.  In circumstances where ex parte orders are made, it is my view that this matter ought to come back before me earlier than that date.

13. I therefore make orders 1 to 12 of the interim orders sought in the applicant’s application filed 3 April 2020.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:         13 May 2020