Tyson and Tyson

[2016] FamCA 395

FAMILY COURT OF AUSTRALIA

TYSON & TYSON [2016] FamCA 395

FAMILY LAW – INJUNCTIONS – INTERIM ORDERS – Application by the wife to restrain the husband from encumbering real property or from disposing of assets of a company – application neither opposed nor consented to by the husband – issue raised as to the husband’s capacity – orders conceded by the husband’s solicitor as appropriate – where the orders the wife seeks are to preserve the assets of the parties – orders made as sought by the wife

Family Law Act 1975 (Cth)

APPLICANT: Ms Tyson

RESPONDENT: Mr Tyson

FILE NUMBER: MLC 11603 of 2015

DATE DELIVERED: 4 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Puckey

SOLICITOR FOR THE APPLICANT: RNG Lawyers

COUNSEL FOR THE RESPONDENT: Mr Oliver

SOLICITOR FOR THE RESPONDENT: Moores Legal

Orders

BY THE COURT IT IS ORDERED:

Taxation/Business Valuation:

1. That by no later than 18 May 2016 the Husband do all acts and things to instruct B Accountants, or another firm of accountants as agreed by the Wife ("the Accountants") to prepare the 2015 tax returns for the business/company Tyson Pty. Ltd. ("the Company"), and the Husband shall produce to the Accountants as and when requested by them all financial records, documents and information to enable the Accountants to complete and lodge the 2015 tax returns for the Company ("the 2015 tax returns").

2. The Husband and the Wife forthwith do all acts and things and provide all documents and instructions to appoint a single expert valuer in accordance with the Family Law Rules to provide the parties with an opinion as to the value of the Company inclusive of the business "Tyson Pty. Ltd." ("the business valuation").

3. That the costs of the 2015 tax returns and business valuations be paid from funds held in the bank accounts of the Company.

That until further Order:

1. That until further order the Husband be and is hereby restrained by himself, his servants or agents as the sole director of the Company from disposing of or dealing with the assets of the business and/or the Company except to fulfil his duties as a director in the usual course of business, or with the prior written consent of the Wife.

2. That until further order the Husband be and is hereby restrained by himself, his servants or agents from selling, disposing of or further encumbering the property at C Street, Suburb D being the land described in Certificate of Title Volume … Folio … without the prior written consent of the Wife or Court Order.

3. That until further order the Wife be and is hereby restrained from selling, disposing of or further encumbering the real properties at:

   (a)       E Street, Suburb D being the land described in Certificate of Title Volume … Folio …;

   (b)       G Street, Suburb H being the land described in Certificate of Title Volume … Folio …;

   (c)       I Street, Suburb J being the land described in Certificate of Title Volume … Folio …;

   (d)       1 K Street, Suburb L being the land described in Certificate of Title Volume … Folio …; and

   (e)       2 K Street, Suburb L being the land described in Certificate of Title Volume … Folio …

   without the prior written consent of the Husband or Court Order. 

Exchange of Documents:

1. That by no later than 25 May 2016 the Husband produce to the Wife the following documents:

   (a)       all the documents mentioned in Rule 12.02 of the Family Law Rules;

   (b)       the following additional documents:

   (i)copies of bank statements for all accounts operated by the Husband solely or with any other person for the period from 1 January 2013 to the present date;

   (ii)all documents in relation to any asset acquired by the Husband or on his behalf, or any asset disposed of by the Husband since 1 July 2013;

   (iii)all documents in relation to dividends paid to the parties in the period from 1 July 2012 to the present date;

   (iv)all documents produced to the Accountants for the preparation of the 2015 tax returns referred to in paragraph 1.

2. That each party make such further financial disclosure (including discovery of documents) to which the duty of disclosure applies when reasonably requested by the other party.

3. The Accountants in paragraph 1 are hereby authorised and directed to provide to each party's solicitors' all information and copies of all documents in their possession, power and control as a consequence of their engagement pursuant to these Orders.

4. That the matter is otherwise listed for a Conciliation Conference at 9.15am on 31 August 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tyson & Tyson 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 11603 of 2015

Ms Tyson

Applicant

And

Mr Tyson

Respondent

REASONS FOR JUDGMENT

1. The matter of Tyson comes before me today in the Judicial Duty List.  It is listed before me as a result of orders made by Registrar Mestrovic on 8 March 2016 in a case assessment conference.  At that case assessment conference the husband appeared in person.  He had not filed a Response to Initiating Application or a Financial Statement at the time of that conference.  Indeed, it is noted that he arrived at the conference at about 9.25 am and walked out at 9.40 am that day. 

2. As a result, Registrar Mestrovic made orders that the matter, that is, the wife’s Initiating Application, be listed before me and made directions for the husband to file material in response.  She made further orders to the effect that in the event that the husband failed to comply with those orders the wife have liberty to seek to proceed on an undefended basis.  Further orders were made that the husband pay the wife’s costs of that day. 

3. The husband has filed his Response to Initiating Application as well as an affidavit in support and a Financial Statement.  Those documents were filed on 22 April 2016. 

4. The matter was stood down at commencement of the hearing before me today to enable discussion to occur between the practitioners for the parties.  I was informed at the commencement of this hearing that the wife would seek orders in the terms of a minute of order that had been prepared on her behalf.  Those proposed orders relate to the completion and filing of taxation returns for the year ended 30 June 2015 in respect of the parties’ business. 

5. There are further orders sought restraining each of the parties from dealing with assets, particularly restraining the husband from dealing with the entities through which the business operates,  the wife to be restrained from dealing with certain named properties  and otherwise orders for disclosure. 

6. The solicitor appearing for the husband has indicated that his client is not in a position to consent to those orders.  There are concerns raised as to the husband’s capacity to provide instructions to his solicitor.  Accordingly, the orders sought are not consented to, nor are they opposed. 

7. It was conceded, quite properly in my view, by the solicitor for the husband that the orders sought are appropriate and orders that would ideally be recommended to his client in terms of being orders that would appropriately progress this matter and enable the parties to attend a private mediation so as to attempt to resolve the matters that stand between them.  In terms of the way forward from the husband’s perspective, it is indicated that his solicitor will need to attempt to seek further instructions from him to consider whether or not an assessment is required as to the husband’s capacity to provide instructions in the future. 

8. It is indicated that that is a process that may take some weeks to organise and if the advice received is that the husband does not have capacity then an application will need to be filed for the appointment of a litigation guardian.  The tension between that position and that of the wife is that she is again left in limbo in terms of the future progress of her application.   What is said to me by her counsel is that the orders sought are appropriate and that the orders with respect to the filing of taxation returns are necessary.  The returns are already late.  They were due to be filed at the end of March 2016;  whilst nothing is done penalties and interest accrue. 

9. Accordingly, it is submitted that it is appropriate that I make orders to regularise that circumstance.  Further, it is said that there are genuine concerns held by the wife as to the manner in which the husband is dealing with the assets of the parties, in particular the business.  She relies upon the evidence annexed to the husband’s affidavit filed on 22 April 2016 from his psychologist; that report indicates that the husband is contemplating changes to the manner in which he operates the business, as to how and if he should continue to conduct the business moving forward. 

10. Those concerns are amplified in light of the Response to Initiating Application filed on behalf of the husband in which he indicates that it is his position that the parties should transfer the business to the parties’ adult sons.  The wife’s concern is to simply preserve assets in circumstances where there is uncertainty as to the husband’s capacity and where there is uncertainty as to how he is continuing to manage and conduct the business.  She further points to the husband’s decision to change the company accountants, that being an event that has occurred only recently. 

11. He has ceased instructing the longstanding accountants for the business and has engaged alternate accountants to prepare the returns for the year ended 30 June 2015.  He has done so without prior consultation with the wife.  These are matters, the wife says, that support her application for interim injunctions to be made restraining the manner in which the husband can deal with the business.  I am satisfied, having regard to the history which I have outlined, that it is appropriate that I make orders in the terms of paragraphs 1, 2, 3, 4, 5 and 6 of the minute of order as provided.  I will not make an order in the terms of paragraph 7. 

12. Those orders will ensure firstly completion of the taxation returns which the parties and particularly the husband in his role as director of the relevant entities, are obliged to complete.  

13. As I have indicated, for the reasons outlined as to the manner in which the husband has conducted the affairs of the company in recent times – the change of the accountant, the application he makes with respect to the companies and also the matters that are referred to in the reports of his treating psychologist – I am satisfied that it is appropriate that orders be made ensuring that there is no change to the structure of those entities pending the Court being in a position to determine the issues with respect to the parties’ competing property applications. 

14. I will make an order in the terms of paragraphs 8 and 9 with respect to disclosure.  Again, the parties are obliged to make disclosure under the rules of Court.  It is appropriate that there be a timeline for such disclosure.  If it is determined ultimately that the husband does not have capacity that obligation will fall to his litigation guardian.  But steps need to be taken; the matter needs to progress. 

15. Likewise, I will make an order in the terms of paragraph 11.  That falls within the ambit of disclosure requirements required of each of the parties to keep the other informed as to what is occurring with respect to the company.  Both the husband and the wife should be able to have access to the company accountant to understand and ascertain what is the position of that entity.  What I will otherwise do is make an order that the matter be listed for a conciliation conference.  I will adjourn all extant applications to a conciliation conference on 31 August 2016 at 9.15 am. Further, I will order that the husband and wife do all acts and things and provide all documents and instructions to appoint a single expert valuer in accordance with the Family Law Rules to provide the parties with an opinion as to the value of their interest in the company. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 May 2016.

Associate:

Date:  4 May 2016