W & C
[2005] FMCAfam 96
•25 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & C | [2005] FMCAfam 96 |
| FAMILY LAW – Injunction sought by wife to restrain husband from discharging mortgage in accordance with property orders – injunction refused. CHILD SUPPORT – Wife seeking lump sum child support payment – order for costs refused where no prior undertaking offered. |
| Child Support (Assessment) Act 1989 (Cth), ss.4; 114; 117. Family Law Act 1975 (Cth), s.117 |
| Waugh & Waugh [2000] FamCA 1183 Abelia v Anderson [1987] 2 Qd R 1 |
| Applicant: | QW |
| Respondent: | CC |
| File Number: | PAM 6194 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 25 February 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 25 February 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Doherty & Partners |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | J.A. Buda & Associates |
ORDERS
Order 4 of the Application for Departure Order filed 14 January 2005 is hereby dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 6194 of 2004
| QW |
Applicant
And
| CC |
Respondent
REASONS FOR JUDGMENT
History
An Order is sought by the Applicant Mother restraining the Respondent Father from dealing with his interests in an investment property at F (“the F Property”) owned by the parties. Pursuant to Orders made by Halligan JR on 2 November 2004, the Respondent Father is to pay $16,556.25 to the Applicant Mother and discharge the mortgage in respect of the F property within 3 months.
Upon compliance with that Order, the Applicant Mother is to transfer her interest in the F property to the Respondent Father.
I understand that is to happen at any moment.
On 14 January 2005 the Applicant Mother filed a Child Support Application for a Departure Order seeking lump sum payment of $124,426.63. The present assessment of child support is $21.67 a month.
The Applicant Mother’s Departure Application is based on the earning capacity of the Respondent Father enabling him to contribute equally to the cost of the 2 children of the marriage assessed by the Applicant Mother as costing $800 a month.
The evidence
The Applicant Mother relies on her Affidavit sworn 17 December 2004 in support of the restraining Order she seeks today and in particular paragraphs 9, 21 and 22 of that Affidavit.
Paragraphs 9 and 21 of the Applicant Mother refer to statements alleged by the Applicant Mother to have been made by the Respondent Father around November 2001, from which the Applicant Mother asks the Court to infer that the Respondent Father intends to avoid any child support obligations and intends to return to China:
“Where it will be impossible for you to get child support.”
There is another unidentified occasion in paragraph 22 where the Applicant Mother states that the Respondent Father said to her:
“I won’t pay any money for the children.”
The Respondent Father denies these conversations.
The Respondent Father relies on his Affidavit sworn 17 February 2005.
Findings
In respect of the alleged statement of the Respondent Father in November 2001, I note that they occurred following the return of the Respondent Father from his second trip to China since the breakdown of the marriage in April 2001 at which time he moved out of the matrimonial home to live permanently at the F property.
In respect of the undated statement, the evidence is that the Respondent Father has been paying and continues to pay $2.50 a week per child, that being in accordance with the Child Assessment Agency assessment.
The Applicant Mother further relies on the evidence in her Affidavit of trips made by the Respondent Father to China and submits that they will cause the Court some disquiet. However, the evidence is that the Respondent Father has returned from China each time. Accordingly, the Court is not disquieted by the trips to China and having regard to the fact that the Respondent Father sees the children regularly and would appear to have associations with recognised musical entities as reflected in Exhibit N of the Applicant Mother’s Affidavit, for whom he performs as a musician.
There is no evidence of any proposed step by the Respondent Father to either immediately divest himself of the F Property upon transfer by the Applicant Mother, nor any evidence of any intention to encumber the property with the result that it would frustrate the ability of the Applicant Mother to enforce any Order made in respect of her Departure Application. The Applicant Mother relies solely on the alleged statements of the Respondent Father and his trips to China.
The Applicant Mother further submits that she has at least an arguable case in relation to her substantive proceeding for a departure order in respect of the capacity of the Respondent Father to derive the sort of income that would allow him to provide child support consistent with the objects of the Child Support (Assessment) Act, particularly with regard to likely support.
The Applicant Mother also submits, in the event that an Order is not made today restraining the Respondent Father, that the prejudice she would suffer in the event that the asset available to her was dissipated outweighs the inconvenience to the Respondent Father in being restricted between now and final determination of this proceeding in dealing with the F Property. While the Respondent Father has expressed, through his Counsel, no need or intention of dealing with that the F Property in any way that would frustrate any ultimate judgment in favour of the Respondent Mother, he is not prepared to proffer an undertaking to the Respondent Mother not to deal with the F Property.
In relation to her substantive proceeding for a departure order, I am satisfied that the Applicant Mother has an arguable case and that indeed the prejudice to her, were the F Property to be dealt with in any way by the Respondent Father, does outweigh the inconvenience to the Respondent Father of an order preventing him dealing with the F Property.
However, in order to be satisfied that it is proper to grant an injunction in the circumstances, it is also necessary for the Applicant Mother to satisfy the Court that without an order the Respondent Father is likely to dispose of the F Property rendering nugatory any order that may be ultimately made in the substantive proceeding.
Evidence of risk and disposal of property
In accordance with the principles identified by the Full Court of the Family Court in Waugh & Waugh [2000] FamCA 1183 (“Waugh”), before a Court can make an interlocutory injunction it must be satisfied that a risk of disposal of property in order to defeat a judgment is evident. In citing McPherson J in Abelia v Anderson [1987] 2 Qd R 1 at 2-3 the Court confirmed that the function of an Order of an interlocutory injunction is not to
“provide a plaintiff with security in advance of a judgment that he hoped to obtain and that he fears may not be satisfied, nor is it to improve a position of the plaintiff in the event of the defendant’s insolvency.”
Of course such a principle must be applied with the scheme of the Child Support Legislation in mind, particularly the objects stated in s.4 of the Child Support (Assessment) Act; the principal object being that children receive a proper level of financial support from their parents, such support to be determined according to their capacity.
The Applicant Mother submitted that Waugh was distinguishable from the facts of this case in that it was related to s.114 of the Family Law Act and the regulation of an ongoing business. That may be so, however, I am satisfied that the principles stated in that case by their Honours are relevant to interlocutory injunctions relating to the disposal of property at large.
The Full Court in Waugh required some clear evidence by the Applicant Mother, even if denied by the Respondent Father, of some disposition of property by the Respondent Father or other conduct by him from which an inference might reasonably be drawn that he had embarked or was about to embark on a course of conduct which was designed to or would be likely to defeat any anticipated Order in the Applicant Mother’s substantive proceeding.
In the proceeding Application before the Court today the Applicant Mother relies solely on the statements referred to in paragraphs 6 and 7 herein, made to her in 2001 as grounding the fear to which she refers in her Affidavit.
There is no evidence before me, as I have already stated, of any attempt by the Respondent Father to embark on a course of conduct that would defeat an Order.
I place little weight on the statements alleged to have been made by the Respondent Father in November 2001, at precisely the time the parties’ relationship was breaking down irretrievably. I do not accept these statements by the Respondent Father as clear evidence of conduct by the Respondent Father which would lead one to reasonably draw an inference that he is intending to otherwise embark on a course of conduct that would be likely to defeat any anticipated order in the Applicant Mother’s substantive proceeding.
I place no weight on the undated conversation in which the Respondent Father allegedly states that he will not pay any money for the children and do not regard it as clear evidence again that the Respondent Father is to embark on a course of action to defeat any Order.
Further, the evidence before me is that the Respondent Father has met his child support obligations to date.
In the circumstances, I am not satisfied, on the evidence before me, having regard to the interests of justice and on the balance of convenience that it is necessary to make the orders sought by the Applicant Mother restraining the Respondent Father’s conduct and accordingly the Application is refused.
Application for costs
The Respondent Father seeks an Order for costs in respect of today’s proceeding on the basis that the Respondent Father was wholly successful in his application and essentially the superior financial position of the Applicant Mother.
Whilst I accept that both those submissions are accurate pursuant to
s.117 of the Family Law Act, there are other matters to be considered before an Order for costs is made particularly the conduct of the parties in the proceedings and any attempt to settle the proceedings.
Prior to the commencement of the hearing of this matter today, I explored with the Respondent Father the possibility of providing an undertaking to the Applicant Mother given that he expressed an intention, through his Counsel, not to deal with the property, that he would not in fact do so in the terms of the injunction sought. That was rejected by the Respondent Father and there is nothing put before me now by way of evidence that that position has been any different since the commencement of the Application, even though the parties agreed to Orders made on the 31 January 2005 when the matter was urgently before me.
Whilst I accept that there is no evidence that had that undertaking been offered it would have been accepted and the litigation been avoided, where the Respondent Father seeks an Order for costs in circumstances where he has made no attempt to explore that opportunity, I am satisfied that the matter is not a matter appropriate to a costs Order.
Accordingly, the Application for costs is refused.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 9 March 2005
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