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

The matter be adjourned to 7 May 2020 at 2:15pm for directions.
All parties be permitted to appear by telephone, video link or such other electronic method as may be directed by the court.
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.
Company A be joined to these proceedings as the second respondent, for the limited purpose of making injunctions against the said company (“Company A”).
Company B be joined to these proceedings as the third respondent, for the limited purpose of making injunctions against the said company (“Company B”).
Company C be joined to these proceedings as the fourth respondent, for the limited purpose of making injunctions against the said company (“Company C”).
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:

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.
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”).
The applicant…

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.

Continue reading Tadros & Tadros & Ors

Details

AGLC: Tadros and Tadros and Ors [2020] FCCA 1118
Case: [2020] FCCA 1118
Decision Date: 27 April 2020

CaseChat Overview and Summary

This matter came before Judge Mercuri concerning proceedings between Mr Tadros (the applicant husband) and Ms Tadros (the respondent wife). The core of the dispute involved the respondent wife's actions concerning certain insurance policies, leading to the applicant husband seeking injunctive relief. The court was also required to consider the joinder of several companies to the proceedings for the purpose of enforcing these injunctions.

The legal issues before the court included whether to grant leave for the husband's documents to be electronically signed and witnessed, and whether to join Companies A, B, C, and D as respondents to the proceedings. Crucially, the court had to determine whether to grant interim injunctions restraining the respondent wife from dealing with specific insurance policies and requiring her to maintain the applicant husband as the sole beneficiary of those policies. The court also considered whether to restrain the respondent companies from taking any action that would facilitate a breach of these orders by the respondent wife.

In reaching its decision, the court granted leave for the electronic signing and witnessing of documents, acknowledging the practicalities of the situation. It then ordered that Companies A, B, C, and D be joined as respondents for the limited purpose of making injunctions against them. The court issued interim injunctions restraining the respondent wife from assigning, transferring, cancelling, mortgaging, or otherwise encumbering the specified insurance policies, or changing their beneficiary, without the applicant husband's written consent. The applicant husband was ordered to pay the premiums for these policies, and both parties and their agents were restrained from making claims on the policies except as agreed. Furthermore, the respondent companies were enjoined from taking any action that would enable the respondent wife to breach these orders, such as cancelling policies or altering beneficiaries. The court also directed the applicant husband to serve the orders and file an undertaking as to damages.

Orders

Orders of the court

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

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

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.

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

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

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

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:

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

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

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”).

10.

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

11.

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.

12.

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

13.

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.

14.

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

15.

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.

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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