Watson and Pace and Anor (No 2)

[2016] FamCA 1005

FAMILY COURT OF AUSTRALIA

WATSON & PACE AND ANOR (NO 2) [2016] FamCA 1005

FAMILY LAW – INJUNCTION

Family Law Act 1975 ss 90AF, 90STA

APPLICANT: Ms Watson

RESPONDENT: Mr Pace

SECOND RESPONDENT: Mr A Pace

FILE NUMBER: CAC 1772 of 2015

DATE DELIVERED: 18 November 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 18 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Howard

SOLICITOR FOR THE APPLICANT: Infinity Legal

SOLICITOR FOR THE RESPONDENT: Ms N Murray, Central Coast Family Law

SOLICITOR FOR THE SECOND RESPONDENT: Mr P Robinson, Williamson Isabella Lawyers

Orders

1. That pursuant to s 90AF of the Family Law Act 1975, the third party, Mr A Pace, be restrained by injunction from further prosecuting the proceedings 2016/… in the NSW District Court (in relation to the alleged debt with respect to the B Street property) and/or from issuing any further proceedings in any other court against the applicant or respondent with respect to that property or the proceeds of sale of that property and/or enforcing the default judgment entered by the court on or about 9 September 2016.

2. That pursuant to s 90AF of the Family Law Act 1975, the respondent be restrained by injunction from making any repayments to the third party, Mr A Pace, for the default judgment (number 2016/…) entered by the NSW District Court for the sum of $303,432.13.

3. That pursuant to s 90AF of the Family Law Act 1975, the respondent and Mr A Pace be restrained by injunction from further prosecuting the proceedings (number 2016/…) in the NSW District Court (in relation to the alleged debt with respect to the C Street property) and/or from issuing any further proceedings in any other court against the applicant or respondent in relation to that property and/or enforcing any default judgment (if any) entered by the court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Watson & Pace & Anor (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1772 of 2015

Ms Watson

Applicant

And

Mr Pace

Respondent

And

Mr A Pace
Second Respondent

REASONS FOR JUDGMENT

1. An application is made for injunctive relief directed to the first and second respondents.  The orders pressed are those sought in an Application in a Case filed by the applicant on 25 October 2016 and of those orders then sought, orders 2, 3 and 4 continue to be sought.  Of the orders that are sought, order 3 is one that bears most directly upon the first respondent and the first respondent does not oppose the making of that order. 

2. Orders 2, 3 and 4 all bear directly upon the second respondent and of those orders the second respondent does not seek to be heard in respect of order 4 which relates to the prosecution of proceedings in relation to the C Street property.  The second respondent resists the making of orders sought numbered 2 and 3.  Those orders are directed in relation to a default judgment that has been entered into in proceedings in the New South Wales (NSW) District Court regarding a sum of approximately $300,000 as referred to in my earlier judgment in relation to the exercise of accrued jurisdiction and the joinder of Mr A Pace.  I rely upon the history that I have recited in relation to that earlier judgment.

3. Mr Howard for the applicant describes that sum as constituting a large proportion of a potential pool as between the parties in relation to the proceedings seeking an adjustment of their property interests.  Having examined the affidavit material it appears at this stage highly likely that it constitutes a major portion of the pool.  At present it is the subject of default judgment and I am told has the potential to be removed from its current safe keeping in the first respondent’s trust account by means of an order from the District Court of NSW.  I am told that should a writ of execution or a garnishee order be made then notwithstanding the orders that were made by the Federal Circuit Court in relation to the sum the sum stands at risk of being removed from the trust account. 

4. Mr Robinson resists the making of the interlocutory injunctive orders for the principle reason that it deprives his client of the fruit of a judgment made in his client’s favour, that is proceedings have been commenced in the District Court and there is now a default judgment in his client’s favour.  Any injunctive relief will prevent his client from having access to those funds and hence is resisted because it stops access to those funds.  Mr Howard in response presses upon me that the justification as put forward by the second respondent emphasises the need for an injunction to be granted.  That is, it is the prospect that the second respondent will draw upon those sums that is put forward as the resistance to the injunction which is the very thing that it would seek to prevent. 

5. In considering whether or not to give relief I am directed to s 90AF(4), the provisions of which I note are applicable to de facto property proceedings by virtue of the operation of s 90STA.

6. Of the matters that are outlined in respect of s 90AF(4) which are mandatory considerations before issuing relief under s 90AF the matters in relation to which evidence is brought to bear are paragraphs (e) and (g). If there are other considerations there is no evidence by which they can be taken into account at this point. Paragraph (e) relates to capacity of the party to the marriage to repay the debt after the order is made or the injunction is granted. Given the interlocutory nature of the judgment that capacity will not be prejudiced. Paragraph (g) relates to the according of procedural fairness. The participation of the second respondent in the proceedings including prior to being joined as the second respondent and the service of the application in advance upon the second respondent before today’s proceedings provided the second respondent with procedural fairness for what is an interlocutory injunction.

7. Given the matters that I have outlined, in particular given the progress of the litigation in the District Court which has left the matter on the cusp of the potential disposal of a large component of the potential pool I consider that it is just and convenient and proper to issue the relief sought at orders 2, 3 and 4 on the basis that an undertaking in the appropriate form is given by the applicant.  Such undertaking has been given and is reflected in exhibit A1 of today’s proceedings. 

8. Accordingly, I make orders 2, 3 and 4 as sought in the Application in a Case filed 25 October 2016. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 November 2016.

Associate: 

Date:  24 November 2016