Vestri & Vestri
[2024] FedCFamC1F 146
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vestri & Vestri [2024] FedCFamC1F 146
File number(s): CAC 405 of 2022 Judgment of: GILL J Date of judgment: 8 March 2024 Catchwords: FAMILY LAW - INJUNCTIONS - Ex parte injunction Legislation: Family Law Act 1975 (Cth) - ss 90AF & 114(1)(e) Cases cited: M & DB [2006] FamCA 1380 Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 8 March 2024 Place: Canberra Solicitor for the Applicant: Ex parte application (did not participate) Solicitor for the Respondent: Ms Neilan, Neilan Stramandinoli Family Law ORDERS
CAC 405 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VESTRI
Applicant
AND: MR VESTRI
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS:
1.The Wife’s Application in Proceeding filed 7 March 2024 be heard on an ex parte basis.
2.Pursuant to s 114(1)(e) of the Family Law Act 1975 (Cth) (“the Act”), the Respondent Husband Mr Vestri, born 1978, be restrained, by force of injunction from disposing of, transferring, encumbering or otherwise dealing with or permitting B Pty Ltd to so deal with the property listed in Order 3 pending further order of the Court or written agreement of the Wife except for reasonable operating or living costs.
3.That for the purpose of Order 2, “the property” including the following:
(a)Any funds held in accounts held with the Australian and New Zealand Banking Group Limited limited to account numbers …78, …28 and …13.
4.That pursuant to sections 90AE(2)(a), 90AF(2)(a) of the Act, the Court directs the Australian and New Zealand Banking Group Limited to deposit 60% of funds held in account numbers …78, …28 and …13 into the trust account of the Applicant Wife’s lawyers, Neilan Stramandinoli Family Law.
5.For the purposes of Order 4 above, the trust account details are as follows:
Neilan Stramandinoli Family Law Law Practice Trust Account
Account Number: …86
BSB: …
6.The monies so deposited in Neilan Stramandinoli Family Law trust account shall not be drawn against without written agreement from the parties or an order of the Court.
7.The wife is to cause to be served forthwith upon the husband and Australian and New Zealand Banking Group Limited, a copy of her application, supporting affidavit, Exhibit M1 and these Orders and file evidence establishing that she has done so.
8.The proceedings are adjourned for hearing of the wife’s application to 9.00am on 13 March 2024.
9.On the next occasion, the wife is permitted to appear by electronic means, provided her legal representative appears in person.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
The applicant wife yesterday filed an application in a proceeding seeking relief on an urgent ex parte basis. That relief sought various injunctions and restraints upon the husband, entities associated with him, and to banks in relation to accounts associated with the husband, along with an interim property adjustment to meet legal costs. The interim property adjustment to meet legal costs will not be dealt with in these proceedings today.
The application is made in circumstances where the parties’ trial material is due to be filed on 15 March 2024, with the trial to commence on 2 April 2024, that is in three weeks’ time. However, the application comes in circumstances where the wife alleges and supports by her affidavit material:
(a)Serious default by the husband in respect of his disclosure obligations;
(b)A previous denial by the husband of holding any significant property;
(c)The forging of the wife’s signature by the husband in relation to two real property transfers, with a lingering question as to the debts paid in relation to one of those payouts;
(d)Prior disposal of an asset being a $100,000 motor vehicle and the use of those proceeds;
(e)That by the use of subpoenas by the wife in the face of the default in disclosure by the husband, the wife has only discovered this week various transfers between accounts held by B Pty Ltd of which the husband is the sole director and shareholder, resulting in approximately $500,000 in one of those ANZ accounts and approximately $1.5 million in another ANZ account.
This collection of factors is said to point to a risk of dissipation of property the subject of the claim by the wife. It may be noted that although in her current amended response the wife only sought a property adjustment in the sum of $300,000 to herself, she now foreshadows change in that position having discovered, by means of subpoena, an apparently much larger pool than had previously been disclosed by the husband.
In that context the wife sought an injunction upon the husband preventing him or any company or trust that he has an interest in from dealing with any asset other than for the purposes of operating or living costs. Secondly, that Westpac and ANZ transfer 60 per cent of any account held by the husband or other entity in which has an interest into the trust account of the wife’s solicitors and thirdly, as noted above, a sum of $75,000 as a property adjustment on an interim basis for legal fees.
While this was the scope of the wife’s application, on the hearing of the matter on an ex parte basis this morning the wife accepted that sufficient relief would be given by orders directed to three accounts held at the ANZ in the name of either the husband or B Pty Ltd significantly reducing the scope of the interim orders sought, that is on an assessment that the monies that were held in those accounts at the time of the return of the subpoenas would be sufficient to safeguard her interests (unless that money has already gone).
She reasonably asserts and accepts that 60 per cent of the proceeds held in those accounts (which accumulates to approximately $2 million) would be sufficient to prevent the risk of dissipation of her legitimate claim.
The application by the wife calls upon the injunctive powers held at s 114 and corresponding power at s 90AF of the Family Law Act 1975 (Cth) (“the Act”). No notice has been given to the husband of this morning’s proceedings. Notice has however been provided to the third party, the ANZ Banking Corporation of Australia, as acknowledged and recorded by exhibit M1. The bank neither consents to nor opposes orders being made which bind it, provided no costs order is made in respect of the bank.
Section 114(1)(e) empowers the court as it considers proper to make injunctions concerning the property of the parties to a marriage. The principles for granting an interlocutory injunction pursuant to s 114 was set out by the Full Court in M & DB [2006] FamCA 1380. The Full Court there noted that while it is not necessary to establish that there is a scheme to dispose of property as justification for making orders securing that property, the court must consider whether there is a real risk of the assets being dissipated. There are a number of factors which adequately indicate such a risk for the purpose of making an injunction in this case.
First are the alleged forgeries committed by the husband of the wife’s signature in order to previously effect transfers of real property. The second is an apparently abject failure to disclose his financial interests on the part of the husband, the husband having previously represented nil significant assets and further, discovering by way of subpoena this week, the sum of approximately $2 million sitting in various accounts under the control of the husband.
Together these matters raised sufficiently a risk of potential dissipation of the pool of property in advance of securing it by means of property adjustment. It is necessary that the court considers whether or not the injunctive orders are necessary and only those necessary to prevent an abuse or frustration of the court’s processes having regard to the nature of the wife’s claim. It may be observed that the purpose of the court here is not granting security to the plaintiff.
The orders as initially sought by the wife were beyond what was necessary. Having reduced the scope of those orders to focus only upon the accounts held at the ANZ and their content of the $2 million, and having restricted the manner in which those funds will in turn be restricted, the orders are now appropriately devised to protect the wife’s interests and do no more.
The court is to give an overall assessment to the various factors and give consideration to where the balance of convenience lies. At present it must be accepted that there will be some risk to the husband in having his property unexpectedly restrained. However, arrangements can be made to return the matter to the court promptly at 9 am on Wednesday 13 March 2024, such that the balance currently lies in the protection of the wife’s interests in respect of the property pool.
I am further to take into account whether or not an undertaking as to damages is offered. I observe that this is a factor to be taken into account, rather than that absence of it may be determinative in other jurisdictions. The wife does not offer such an undertaking as to damages, giving evidence as to her extremely limited financial circumstances. Despite the absence of that undertaking as to damages given the short duration of these orders it is appropriate that the orders will still be made. In considering the making of the orders I am aware of potential alternate protection being the undoing of further transactions by operation of s 106B of the Act. However, on the evidence as it currently sits it is at present better to shut the gate in the face of the risk rather than to allow the horse to bolt.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 8 March 2024
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