Tirret and Tirret

[2009] FamCA 504

FAMILY COURT OF AUSTRALIA

TIRRET & TIRRET [2009] FamCA 504

FAMILY LAW – PROPERTY – interim injunction – refused – orders for discovery and provision of financial information

Family Law Act 1975 (Cth)

APPLICANT: Ms Tirret

RESPONDENT: Mr Tirret

FILE NUMBER: MLC 4504 of 2009

DATE DELIVERED: 27 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 27 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms H.F. Bonney

SOLICITOR FOR THE APPLICANT: Oakfair Lawyers

COUNSEL FOR THE RESPONDENT: Mr Carlile

SOLICITOR FOR THE RESPONDENT: JK Lawyers & Co

Orders

1. That each of the parties make full discovery and exchange all relevant documents within 35 days hereof.

2. That the husband file and serve a statement of financial circumstances within 28 days hereof.

3. That the husband advise the wife in writing within 24 hours of any transaction in respect of shares held in the names of the husband, wife, a child of the marriage or any entity in which a party or a child of the marriage has an interest and a copy of an internet generated sale or purchase note from CommSec or other internet broker shall be deemed sufficient written notice.

4. That on 1 July 2009 and the first day of each month thereafter (or at such other interval as the parties agree in writing):

   a.the wife provide to the husband a profit and loss statement in respect of the grocery business conducted in W and account to the husband in respect of the distribution of income of the business; and

   b.the husband account to the wife in writing in respect of cash proceeds received pursuant to share transactions of which notice has not been given pursuant to paragraph 3 hereof.

5. That the parties attend a Conciliation Conference at 9:15am on 13 August 2009.

6. That all extant applications for interim orders be otherwise dismissed.

7. That there be no order as to costs.

8. That the reasons for judgment be transcribed and a copy made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 4504 of 2009

MS TIRRET

Applicant

And

MR TIRRET

Respondent

REASONS FOR JUDGMENT

1. This matter was listed as a matter of some urgency and for that reason, the husband was granted leave this morning to file a response to the wife's application and an affidavit in support of that response.  He has not had time to prepare a statement of financial circumstances.

2. The application of the wife was filed on 22 May, which was last Friday.  By way of interim orders, she sought to restrain the husband personally and by his servants and agents from dealing in any way - I am summarising - with stocks and shares in his name or in the name of the wife or in their joint names, and from dealing with any other assets of the parties other than in the usual and ordinary course of business, save with the wife's written consent.  She also sought that he be restrained from increasing any existing liability or further liability secured upon any real property owned by the parties, without her consent.  Other orders sought required him to make full and frank disclosure of the parties' financial position, particularly his superannuation entitlements and benefits, and she asked to be excused from further particularising her claim until he made full financial disclosure.

3. In his response filed today, the husband sought that the wife's interim application be dismissed and that she pay his costs.

4. The parties have been married for some 19 years. The wife's evidence is of them separating under the one roof in January this year; the husband, of that occurring in February.

5. The parties remain living with their two children in the former matrimonial home in W.  Their son is 15 and in year 10; their daughter 13 and in year 8. 

6. In terms of assets, the parties own the former matrimonial home.  There is a grocery business in W which is conducted by the wife.  There is a significant share portfolio and the husband has given evidence of superannuation and trust arrangements.  There are cars.  There are apparently some shares in Malaysia in the wife's name; I am content to act on the basis she simply forgot to include them.  There is reference in her material to a bank account and there may be a number of other assets not yet clearly identified.

7. A significant asset is the share portfolio.  The wife's evidence is of believing, prior to the global financial crisis, that it at times was valued at between $1 million and $1.5 million.  She believes it to presently have a value of around $1 million. 

8. Annexed to the husband's affidavit are printouts from his CommSec account.  They are not dated but, through counsel, it is put that they are yesterday's figures.  One refers to equities with a value of just under $500,000; the other to equities with a value of just under $360,000.  The husband has also made a note on the document – I assume it is the husband’s hand - of "cash resources", followed by a figure.

9. The wife was frank in her material and through her counsel about the basis of her application.  Her evidence is that throughout the marriage, the husband controlled their portfolio and dealt with it.  She alleged he sold or disposed of shares prior to their separation in January 2009.  She has never been involved in the management of the share portfolio.  In a climate of suspicion arising from the breakdown of their relationship, albeit they are still living under the one roof, she is now suspicious of his motives and his conduct.  It is said that she assumes he will or may act to her detriment and that of the family; for that reason she wants him restrained from trading until further order or, at least, until the parties can attend a conciliation conference.

10. It is not at all uncommon for parties, post-separation, to be suspicious of each other's motives and to question behaviour which was the not the subject of question or even interest when they were together in happier times.

11. Injunctions are one of an array of orders which courts have developed to protect the integrity of their process. On an application for an interim injunction the court must be satisfied that there is a serious issue to be tried and the balance of convenience supports the making of the order. The discretion is wide but must be exercised judicially. The exercise of the discretion depends upon the particular circumstances of the individual case and the nature of the relief being sought. Factors which may be taken into account include questions of urgency, the means and needs of the parties, the balance of hardship, the interest of third parties and alternative remedies.

12. What the wife seeks is an asset preservation order which, she submits, is necessary to restrain the potential dissipation or disposal of assets so as to prevent the abuse or frustration of the court’s process or the satisfaction of its judgment. Before granting such an order the court must be satisfied that unless an order is made, there is a real risk that assets will be dissipated or disposed of so as to frustrate that court process and that the balance of convenience strongly favours the grounding of the relief, rather than any other form of orders. The court should not use its power in circumstances of suspicion only. Nothing in the evidence satisfies me that it should be exercised in this case. These are not static assets but tradeable securities and trading them has been one of the two businesses conducted by the parties.

13. In his affidavit, the husband deposed to being prepared to give an undertaking that he would advise the wife within seven days of any transaction in respect of the shares.  I see no reason why the period of seven days cannot be significantly reduced.  The husband is clearly an experienced trader.  He is dealing through the internet much, if not all, of the time.  It is a simple matter to print out copies of transaction statements and documents and that can be done within 24 hours of a transaction.  I do not find that an undertaking of the husband would not be adequate. However, as the application is before me for determination, an order in those terms will be made.

14. On 1 July, and the first day of each month thereafter, the husband is to account to the wife in respect of funds received as a result of share trading which have not been accounted for by other documents given to her.  If she already has a document which demonstrates the reinvestments of funds, he need not account. If a significant capital sum went into a mortgage or a car lease or whatever, that will need to be specified. A general statement that, "X thousand dollars went into living expenses will also suffice";  I am not suggesting each $4.50 spent on a two-litre carton of milk is to be recorded. The document must enable the wife to be privy to their cash flow and financial position.

15. Each of the parties must make discovery and the husband must file a statement of financial circumstances.  A conciliation conference date is now available; it will be conducted by Registrar Riddiford, who has been assigned this file.  A conference at 9.15 am on 13 August fits well into the framework of discovery and exchange of information.

16. The parties are to make discovery and exchange all relevant documents within 35 days. The husband is to file and serve a statement of his financial circumstances within 28 days.

17. The parties have, as I make clear, all the usual disclosure obligations under the Family Law Rules 2004.  The practitioners are well aware of them. 

18. The interim applications will be otherwise dismissed.  My reasons for judgment will be transcribed and a copy made available to the parties.

19. The husband has sought that his costs of and incidental to the application be paid by the wife. The general rule contained in s.117 of the Family Law Act 1975 is that each party to litigation in this court bears his or her own costs. There is provision for the court to make orders for costs if it deems it appropriate to do so and s.117(2A) sets out the matters to which the court must have regard. These include the financial circumstances of the parties, the conduct of the proceedings, whether one party has been wholly unsuccessful, issues relating to Legal Aid (which are obviously not relevant to this case) and other factors which the court deems appropriate.

20. It is true the wife has been unsuccessful in obtaining the injunction sought and it was that application which justified the expedition granted.  If that order had not been sought, the case would routinely have gone to a case assessment conference or whatever that intervention is now called - its name seems to change with frightening frequency - and the parties would have been before a registrar, who would have given directions for discovery with the intention of moving the matter towards a conciliation conference.

21. As a result of this hearing, a conciliation conference date has been fixed rather earlier than may otherwise have been the case.

22. I am not satisfied this is a matter in which the court should order the wife pay the husband's costs. I do not propose to make any orders for costs.  Each of the parties will bear his or her own costs.

23. I will certify for counsel.  The court will take out the orders.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate: 

Date:  15 June 2009