Villa & Villa - [2024] FedCFamC1F 741

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Villa & Villa [2024] FedCFamC1F 741

File number(s): BRC 9739 of 2024

Judgment of: BAUMANN J

Date of judgment: 7 November 2024

Catchwords: FAMILY LAW – INTERLOCUTORY – INJUNCTIVE RELIEF – Major Complex Financial Proceedings List – Where the Applicant has not established primarily any real risk of unjustified disposition of Australian assets – Where the wife has not pointed to any evidence of funds leaving Australia – Where the difficulties in being able to enforce any Australian Court order against overseas assets is but one issue to be considered in the exercise of discretion – Where the scope of the Applicant’s orders sought have the potential of restraining the Respondent in a way that cannot be justified at this time – Application for injunctive relief dismissed

Legislation: Family Law Act 1975 (Cth) s 114

Cases cited:
Fundo Soberano de Angola v Dos Santos [2018] EWHC 2199 (Comm)

M & DB (2006) FLC 93-293

Palmer v Parbery & Ors; QNI Metals Pty Ltd & Ors v Parbery & Anor [2019] QCA 27

Patton & Patton [2015] FamCA 1083

Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264

Tsiang & Wu and Ors (2019) FLC 93-911

Waugh & Waugh (2000) FLC 93-052

Division: Division 1 First Instance

Number of paragraphs: 56

Date of hearing: 9 October 2024

Place: Brisbane

Counsel for the Applicant: Mr Craig KC assisted by Ms Renwick

Counsel for the Respondent: Mr Sulan SC assisted by Mr May
ORDERS

BRC 9739 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VILLA

Applicant

AND:
MR VILLA

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

7 NOVEMBER 2024

THE COURT ORDERS:
1.That the wife’s amended Application in a Proceeding filed 26 September 2024 seeking injunctive and ancillary relief at paragraphs 3, 4, 5 and 6 is dismissed.
2.That Order 3 made 17 September 2024 is discharged.
3.That the husband shall file and serve within twenty one (21) days, a Defence/Response to the wife’s Statement of Claim filed 8 October 2024.
4.That the relief sought at paragraph 2 of the wife’s amended Application in a Proceeding filed 26 September 2024 be adjourned for further determination before the Honourable Justice Hogan.
5.That the costs of and incidental to the hearing on 9 October 2024 be reserved to the trial.
6.That the substantive proceedings be listed for Hearing before Justice Hogan commencing 24 March 2025 for five (5) days in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
7.That the proceedings be adjourned for Case Management Hearing before Justice Hogan at 9.30am on 19 December 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

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…

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 Villa & Villa

Details

AGLC: Villa & Villa [2024] FedCFamC1F 741
Case: [2024] FedCFamC1F 741
Decision Date: 7 November 2024

CaseChat Overview and Summary

The case of Ms Villa versus Mr Villa involved an application for injunctive relief by the Applicant, Ms Villa, against the Respondent, Mr Villa. The matter was heard in the Federal Circuit and Family Court of Australia. Ms Villa sought injunctive and ancillary relief on the basis that Mr Villa posed a real risk of disposing of significant assets, potentially hindering the division of assets in the main family law proceedings. The primary concern was the possible disposition of Australian assets and the effectiveness of enforcing any court orders against overseas assets. The court was tasked with determining whether Ms Villa had established a real risk of unjustified disposition of assets and whether the scope of the relief sought was justified.

In assessing the application, the court focused on whether Ms Villa had demonstrated a real risk of unjustified disposition of Australian assets. The evidence presented did not indicate any movement of funds out of Australia, nor did it provide a basis for the court to conclude that such a risk existed. The court acknowledged the challenges in enforcing Australian court orders against overseas assets but stressed that this was one factor among many in exercising its discretion. Furthermore, the court scrutinised the breadth of the relief sought, considering whether it was appropriate to restrain Mr Villa to such an extent without sufficient evidence of a real risk.

Ultimately, the court dismissed Ms Villa's application for injunctive relief, finding that she had not established a real risk of unjustified disposition of Australian assets. The court also considered the scope of the relief sought, deeming it potentially excessive at this stage of the proceedings. The substantive proceedings were scheduled for a five-day hearing commencing on 24 March 2025, while the application for injunctive relief was adjourned for further determination. The court ordered Mr Villa to file a Defence/Response to Ms Villa's Statement of Claim and directed that the costs of the hearing be reserved for the trial. The case management hearing was set for 19 December 2024.

Orders

Orders of the court

BRC 9739 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VILLA

Applicant

AND:

MR VILLA

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

7 NOVEMBER 2024

THE COURT ORDERS:

1. That the wife’s amended Application in a Proceeding filed 26 September 2024 seeking injunctive and ancillary relief at paragraphs 3, 4, 5 and 6 is dismissed.

2. That Order 3 made 17 September 2024 is discharged.

3. That the husband shall file and serve within twenty one (21) days, a Defence/Response to the wife’s Statement of Claim filed 8 October 2024.

4. That the relief sought at paragraph 2 of the wife’s amended Application in a Proceeding filed 26 September 2024 be adjourned for further determination before the Honourable Justice Hogan.

5. That the costs of and incidental to the hearing on 9 October 2024 be reserved to the trial.

6. That the substantive proceedings be listed for Hearing before Justice Hogan commencing 24 March 2025 for five (5) days in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

7. That the proceedings be adjourned for Case Management Hearing before Justice Hogan at 9.30am on 19 December 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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File number(s):	BRC 9739 of 2024
Judgment of:	BAUMANN J
Date of judgment:	7 November 2024
Catchwords:	FAMILY LAW – INTERLOCUTORY – INJUNCTIVE RELIEF – Major Complex Financial Proceedings List – Where the Applicant has not established primarily any real risk of unjustified disposition of Australian assets – Where the wife has not pointed to any evidence of funds leaving Australia – Where the difficulties in being able to enforce any Australian Court order against overseas assets is but one issue to be considered in the exercise of discretion – Where the scope of the Applicant’s orders sought have the potential of restraining the Respondent in a way that cannot be justified at this time – Application for injunctive relief dismissed
Legislation:	Family Law Act 1975 (Cth) s 114
Cases cited:	Fundo Soberano de Angola v Dos Santos [2018] EWHC 2199 (Comm) M & DB (2006) FLC 93-293 Palmer v Parbery & Ors; QNI Metals Pty Ltd & Ors v Parbery & Anor [2019] QCA 27 Patton & Patton [2015] FamCA 1083 Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 Tsiang & Wu and Ors (2019) FLC 93-911 Waugh & Waugh (2000) FLC 93-052
Division:	Division 1 First Instance
Number of paragraphs:	56
Date of hearing:	9 October 2024
Place:	Brisbane
Counsel for the Applicant:	Mr Craig KC assisted by Ms Renwick
Counsel for the Respondent:	Mr Sulan SC assisted by Mr May

BRC 9739 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS VILLA Applicant
AND:	MR VILLA Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	7 NOVEMBER 2024