WIGHTMAN & WIGHTMAN

[2015] FamCA 628

FAMILY COURT OF AUSTRALIA

WIGHTMAN & WIGHTMAN [2015] FamCA 628

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Injunctions – Where consent orders were entered into joining the husband’s mother and a family company as parties to the proceedings – Where the parties agree injunctions are necessary to preserve the matrimonial property pending final hearing – Where the parties cannot agree as to their form – Orders made – Remainder of the application adjourned to a future date.

In the Marriage of Martinellio (1981) FLC 91-050
Sieling and Sieling (1979) FLC 90-627

Family Law Act 1975 (Cth) s 114

APPLICANT: Ms Wightman

RESPONDENT: Mr Wightman

FILE NUMBER: SYC 1693 of 2015

DATE DELIVERED: 30 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 13 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Auld

SOLICITOR FOR THE APPLICANT: Delaney Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Sexton Family Law

The Court orders that:

1. Pursuant to section 90AF of the Family Law Act 1975 (Cth), the following entities (“the Companies”) be joined as a party to these proceedings:

   a.         A Pty Ltd ACN …;

   b.         B Pty Ltd ACN …;

   c.         C Pty Ltd ACN …;

   d.         D Pty Ltd ACN …;

   e.         E Pty Ltd ACN …;

   f.          F Pty Ltd ACN …;

   g.         G Pty Ltd ACN …; and

   h.         H Pty Ltd ACN ….

The Court orders, pending further order, that:

1. The husband is restrained in his capacity as Director and/or shareholder by injunction from selling, transferring, assigning, encumbering or alienating his shares and/or interest of any nature in the Companies whatsoever, and/or appointing any directors or otherwise acting in such a way as to cause the reduction in the value of the assets of any of the Companies, except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.

2. Each of the Companies, by themselves, their servants and agents are hereby restrained from selling, transferring, assigning, encumbering or alienating any of its assets or otherwise acting in such a way as to cause the reduction in the value of the assets of the Companies, except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.

3. The husband is hereby restrained from selling, transferring, assigning, encumbering, or alienating any interest (including where that interest is not beneficially held) in any asset in which the husband has personally or in his capacity as Director and/or shareholder in any company in which he has an interest, or otherwise acting in such a way as to cause the reduction in the value of such assets, without giving the wife not less than ten (10) days’ notice in writing of his intention to do so, except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.

4. The husband and/or the second respondent and/or their nominee are hereby restrained from calling for the holding of, or from attending and voting at, any meeting of any the Companies whereby it is sought to do any of the following:

   a.   To issue any further shares in the any of the Companies;

   b.   To appoint any further directors to any of the Companies, or to appoint any additional or alternate Secretary for any of the Companies;

   c.   To make any loan or advance to any other person or other company or entity,

   d.   To guarantee any loan or contractual advance to any other person or entity;

   e.   To alter or vary the signatories to the bank accounts of the Companies; and

   f.   To enter into any contract, agreement, instrument or other document, affecting the matrimonial assets and/or the assets of the companies and/or trusts identified herein;

   except in the ordinary course of business or with the wife’s written consent which shall not be unreasonably withheld.

5. Each of the Companies, their servants and agents are restrained from exercising their powers as Trustee for any of the Trusts detailed below (collectively referred to as “the Trusts”), to alter the Trust Deed or pass any resolution to distribute, sell, transfer, assign, encumber, or alienate any assets of the relevant Trust, other than distributions of net income of the Trust estate in the usual manner and then only after notice to the wife (with full details of the intended distribution) which is to be given at least seven (7) days before the date of the intended resolution to make a distribution:

   a.   Wightman Family Trust;

   b.   B Unit Trust;

   c.   I Unit Trust;

   d.   J Unit Trust;

   e.   K Unit Trust; and

   f.   E Unit Trust.

6. The husband is hereby restrained in his capacity as appointor of any of the Trusts, or the A Pty Ltd Superannuation Fund, from appointing a new Trustee in place of the existing Trustee, except with the prior written consent of the wife which shall not be unreasonably withheld.

7. A Pty Limited, by itself, its servants and agents be and is restrained from exercising its powers as Trustee of A Pty Ltd Superannuation Fund (“the A Super Fund”) to alter the Trust Deed of the A Super Fund or pass any resolution altering the beneficiaries of the A Super Fund or pass any resolutions to distribute, sell, transfer, assign, encumber, or alienate any interest in the Wightman Super Fund, except with the prior written consent of the wife which shall not be unreasonably withheld.   

8. The husband is restrained from withdrawing or disposing of or encumbering in any way the funds held in any bank accounts held in the name of any of the Companies or any of the Trusts without the wife’s prior written consent which shall not be unreasonably withheld.

10. The husband is restrained from taking out any further loans from existing financiers or obtaining new or additional borrowings from any other source, without first obtaining the wife’s written consent, but subject to the following:

a.   The period within which the wife is to provide or decline her consent is three (3) working days from the date upon which the request is made by the husband to the wife (defined as the first day if the request is made prior to 5.00 pm failing which the next working day is deemed to be the first day and where the third working day is defined to conclude at 5.00 pm):

b.   The husband is to make full and frank disclosure of the basis for the proposed borrowing and the intended application of those funds at least ten (10) days prior to any request being made to the wife by the husband.

11. The husband in his personal capacity, or as Director or Trustee of any company or Trust respectively, that owns the motor vehicles identified below, is hereby restrained from selling, mortgaging, assigning, alienating or encumbering the following motor vehicles except with the prior written consent of the wife which shall not be unreasonably withheld:

a.Japanese motor vehicle (2004) registration number …;

b.European motor vehicle registration number …; or

c.4WD motor vehicle registration number ….

12. The husband and the wife are restrained from removing any furniture, valuables, including any coin collection, jewellery, objects d’art, utensils or contents of any nature whatsoever, from the property known as L Street, Suburb M, NSW.

13.  The husband and the wife are restrained from removing any paperwork, valuables, including any coin collection memorabilia, furniture, objects, d’art, utensils or contents of any nature, from any storage facility held in the husband’s or wife’s name or any entity associated with the husband or the wife, including the three (3) storage facilities at N Storage.

14. The husband and the wife are restrained from removing any bottles of wine stored at any wine storage facility in the husband’s or wife’s name or the name of any entity associated with the husband or the wife, including  any wine stored at O Wine Storage.

15. The husband is to provide or cause the financial controller of the Companies and the Trusts to provide the wife with quarterly accounts and/or quarterly BAS statements of those entities.

16. All monies received or receivable by C Pty Ltd as Trustee for the I Unit Trust and/or D Pty Ltd as Trustee for the J Trust Unit Trust, pursuant to the sale of P Pty Ltd by Q Pty Ltd be placed in a separate bank account, the details of which are to be provided to the wife, and not to be drawn on without the wife’s prior written consent which shall not be unreasonably withheld.

17. All monies received or receivable by any of the Companies and/or any of the Trusts pursuant to the sale of all or any of R Pty Ltd (formerly S Pty Ltd), N Pty Ltd (formerly U Pty Ltd), V Pty Ltd (formerly W Pty Ltd) and X Pty Ltd (formerly Y Pty Ltd) collectively referred to as (the “Z Group”), be placed in a separate bank account, the details of which are to be provided to the wife and not to be drawn on without the wife’s prior written consent which shall not be unreasonably withheld.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wightman & Wightman 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
SYDNEY

FILE NUMBER:
SYC1693 OF 2015

Ms Wightman

Applicant

And

Mr Wightman

Respondent

REASONS FOR JUDGMENT

Introduction

Background

18. This matter concerns an interim application by Ms Wightman (“the wife”) for injunctions designed to preserve the property of the marriage pending the final hearing of substantive proceedings, pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).

19. The Court’s power to grant an injunction pursuant to section 114 of the Act, in order to preserve the status quo between the parties and the subject matter of the litigation pending final hearing, is well established.[1]

[1]See for instance G and T (2004) FLC 93-176.

20. Counsel for the husband correctly pointed out that a precondition to the exercise of power, pursuant to section 114(3), is that the Court must be satisfied that it is “just or convenient” to grant an injunction or make an interlocutory order in proceedings before the Court.

21. In the course of the proceedings, the husband’s mother, Ms AA Wightman agreed to being joined as a party to these proceedings (“the second respondent”) and the parties further agreed that BB Pty Ltd be joined as a further party to the proceedings (“the third respondent”). As will be noted, the second and third respondents agreed to provide undertakings in terms of those sought by the wife.  

22. By consent, the following matters were adjourned for consideration by the Court at a later date:

·The issue of spousal maintenance;

·The issue of indemnities sought by the wife; and

·The issue of disclosure pursuant to Rule 13.04 of the Family Court Rules 2004 (Cth) (“the Rules”).

Relevant chronology

·    The husband and wife are both forty-nine years of age. They were married in 1992 and separated on 27 January 2014. They have two sons aged nineteen and fifteen.

·    In January 2014, the wife first complained about limited communication from husband regarding their financial affairs. This remains an issue of ongoing concern to the wife.

·    On 11 April 2014, the husband used a power of attorney to remove the wife as an office holder of the matrimonial companies. The husband has acknowledged that this was done without the wife’s consent.

·    In May 2014, the husband and his new de facto partner had twin daughters.

·    On 7 November 2014 the matrimonial companies’ interest in the Z Group was sold. The wife alleges that she did not become aware of the sale until two months later.

·    On 22 December 2014, the wife alleges that the husband entered the former matrimonial home without her being present and without her consent.

Concessions by second and third respondents

23. At the hearing, with the consent of all parties, the husband’s mother, Ms AA Wightman, and a family company, BB Pty Ltd, consented to be joined as the second and third respondents respectively.

24. The second respondent, in turn, provided undertakings to:

·    Refrain from selling, transferring, assigning, encumbering or alienating her shares and or interest of any nature in any A Pty Ltd (A) and/or G Pty Ltd Pty (G Pty Ltd) and/or the Third Respondent, BB Pty Ltd, whatsoever, and/or appointing any directors or otherwise acting in such a way as to cause to reduction in the value of the assets of A, B or the third respondent, BB Pty Ltd.

·    Refrain from using, assigning, transferring, encumbering or alienating any monies received by her, or any entity associated with her, from the husband or any entity associated with the husband in the last 12 months in particular any monies received from the proceeds of sale of interests in any of R Pty Ltd (formerly S Pty Ltd), N Pty Ltd (formerly U Pty Ltd), V Pty Ltd (formerly W Pty Ltd) and X Pty Ltd (formerly Y Pty Ltd) collectively referred to as (the “Z Group”), except to the extent that those monies earned interest in the account with St George Bank in her name [account number identified].

·    Provide the wife’s solicitor of all bank statements detailing monies received by her or any entity associated with her from the husband or any entity associated with the husband in the last 12 months.

25. The third respondent provided undertakings with similar effect to undertakings (a) and (c) provided by the second respondent.

26. Orders were made consistent with those undertakings.

Injunctions Sought by the Wife

27. Excluding those matters that were the subject of consent orders and those matters that have been deferred for subsequent determination, the wife sought the following orders:

1…

2…

3…

4.  The husband be restrained in his capacity as Director and/or shareholder by injunction from selling, transferring, assigning, encumbering or alienating his shares and/or interest of any nature in the Companies whatsoever, and/or appointing any directors or otherwise acting in such a way as to cause the reduction in the value of the assets of any of the Companies pending further Order.

5…

6.  That each of the Companies, by themselves, their servants and agents be restrained and are hereby restrained by this Order from selling, transferring, assigning, encumbering or alienating any of its assets or otherwise acting in such a way as to cause the reduction in the value of the assets of the Companies, pending further Order.

7. The husband be and is hereby restrained from selling, transferring, assigning, encumbering, or alienating any interest (including where that interest is not beneficially held) in any asset in which the husband has personally or in his capacity as director and/or shareholder in any company in which he has an interest or otherwise acting in such a way as to cause the reduction in the value of such assets, without giving the wife twenty-eight (28) days’ notice in writing of his intention to do so, pending further Order.

8.  That pending further Order, the husband and/or [Ms AA] and/or their nominee be and are hereby retrained from calling for the holding of, or from attending and voting at any meeting any the Companies whereby it is sought to do any of the following:-

a.    To issue any further shares in the any of the Companies;

b.    To appoint any further directors to any of the Companies, to appoint any additional or alternate Secretary for any of the Companies;

c.    To make any loan or advance to any other person or other company or entity;

d.    To guarantee any loan or contractual advance to any other person or entity;

e.    To alter or vary the signatories to the bank accounts of the Companies;

f.     To enter into any contract, agreement, instrument or other document, affecting the matrimonial assets and/or the assets of the companies and/or trusts identified herein without the wife’s consent, which shall not be unreasonably withheld.

Trusts

9.        That pending further Order, each of the Companies, their servants and agents be restrained by this Order from exercising their powers as Trustee for any of the Trusts detailed below, to alter the Trust Deed or pass any resolution to distribute, sell, transfer, assign, encumber, or alienate any assets of the relevant trust, other than distributions of net income of the trust estate in the usual manner and then only after notice to the wife (with full details of the intended distribution) which shall be given at least seven (7) days before the date of the intended resolution to make a distribution:

a.    [Wightman] Family Trust;

b.    [B] Unit Trust;

c.    [I] Unit Trust;

d.    [J] Unit Trust;

e.    [K] Unit Trust; and

f.     [E] Unit Trust;

collectively referred to as the “Trusts”.

10.           That the husband be and is hereby restrained by this Order in his capacity as appointor of any of the Trusts or the [A Pty Ltd] Superannuation Fund from appointing a new Trustee in place of the existing trustee, pending further Order.

Superannuation Fund

11.           That [A] by itself, it’s servants and agents be and is hereby restrained by this Order from exercising its power as Trustee of the [A Pty Ltd] Superannuation Fund (“A Super Fund”) to alter the Trust Deed of the [A Super Fund] or pass any resolution altering the beneficiaries of the [A Super Fund] or pass any resolution to distribute, sell, transfer, assign, encumber, or alienate any interest in the [Wightman] Super Fund, pending further Order.

Bank Accounts

12.           The husband be and is hereby restrained by this Order from withdrawing or disposing of or encumbering in any way, the funds held in any bank accounts held in the name of any of the Companies or any of the Trusts without the wife’s consent, which shall not unreasonably be withheld.

Further loans

13.           That pending further Order, the husband be and is hereby restrained from taking out any further loans from existing financiers or obtaining borrowings from any other source without first obtaining the wife’s consent in writing subject to the following:

a.    The period in which the wife is to provide or decline her consent is three (3) working days from the date upon which the request is made by the husband to the wife (defined as the first day if the request is made prior to 5pm failing which the next working day is deemed to be the first day and where the third working day is defined to conclude at 5pm); and

b.    The husband to make full and frank disclosure of the basis for the proposed borrowing and the application of funds at least ten (10) days prior to any request by the husband.

Motor Vehicles

14.           That pending further Order, the husband in his personal capacity and as director or trustee of any company or trust, respectively that owns the motor vehicles identified below, is hereby restrained from selling, mortgaging, assigning, alienating or encumbering the following motor vehicles except by written consent of the wife or by Order of the Court:-

a.    [Japanese motor vehicle] (2004) registration number …;

b.    [European motor vehicle] 2008 registration number …; or

c.    [4WD motor vehicle] registration number ....

Valuables

15.           That the husband be restrained by injunction from removing any furniture, valuables, including any coin collection, jewellery, objects d’art, utensils or contents of any nature whatsoever from the property known as [L Street, Suburb M], NSW, pending further Order.

16.           That the husband be restrained from removing any paperwork, valuables, including any coin collection memorabilia, furniture, objects, d’art, utensils or contents of any nature from any storage facility held in the husband’s name or any entity associated with the husband in particular the three (3) storage facilities at [N Storage], pending further Order.

17.           That the husbands be restrained from removing any bottles of wine stored at any wine storage facility in the husband’s name or the name of any entity associated with the husband, in particular any wine at [O Wine Storage], pending further Order.

Monies received by [Ms AA]

18.           …

Monies received by [BB Pty Ltd]

19.           …

DIRECTIONS

20.           That the husband provide or cause the Financial Controller of the Companies and the Trusts to provide the wife with monthly management accounts and copies of the details of each and every charge, mortgage and other substantial debt of the Companies and Trusts.

Sale of P Pty Ltd

21.           All monies received or receivable by [C] as Trustee for the [I] Unit Trust and/or [D] as Trustee for the [J Unit Trust] pursuant to the sale of [P Pty Ltd] by [Q Pty Ltd] be placed in a separate bank account, the details of which are provided to the wife, and not to be drawn on without the consent of the wife.

Sale of [Z Group]

22.           All monies received or receivable by any of the Companies and/or any of the Trusts pursuant to the sale of all or any of the [Z Group] be placed in a separate bank account, the details of which are to be provided to the wife and not to be drawn on without the consent of the wife.

Spouse Maintenance

23.           …

24.           …

Exclusive Occupation

25.           That the wife has exclusive occupation of the former matrimonial home. That the husband be restrained by injunction from entering the former matrimonial home without the written consent of the wife and the presence of the wife.

Indemnities

26.           …

27.           …

28.           …

29.           …

30.           …

31.           …

Disclosure

32.           …

Interim Costs

33.           …

Registrar

34.           In the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to any or all of these orders made herein, the Registrar of the Court be appointed pursuant to section 106A to execute such deed or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the said Deed or instrument.

28. The “Companies” referred to in the Orders sought by the applicant wife included the following:

·    A Pty Ltd ACN ..;

·    B Pty Ltd ACN …;

·    C Pty Ltd ACN …;

·    D Pty Ltd ACN …;

·    E Pty Ltd ACN …;

·    F Pty Ltd ACN …;

·    G Pty Ltd ACN …; and

·    H Pty Ltd ACN ...

29. E Pty Ltd and F Pty Ltd are service companies related to the husband’s accountancy practice.

30. The Z Group of companies were as identified in paragraph (b) of the second respondent’s undertaking, and included the following:

·    R Pty Ltd (formerly S Pty Ltd);

·    N Pty Ltd (formerly U Pty Ltd);

·    V Pty Ltd Pty Ltd (formerly W Pty Ltd); and

·    X Pty Ltd (formerly Y Pty Ltd).

31. The husband tendered correspondence indicating that the parties had attempted to reach agreement in respect to proposed orders. Regrettably, despite those endeavours, no such agreement was achieved. This resulted in quite a painstaking task of comparing the respective orders proposed by the parties.

32. Leaving aside those matters that had been agreed to or deferred, the alternative form of orders proposed by the husband were as follows:

1.   That pending further order the husband in his personal capacity and in his capacity as a Director of the relevant companies and/or shareholder of the relevant companies be restrained from calling for the holding of, or from attending and voting at any meeting of [A Pty Limited], [D Pty Limited], [B Pty Limited], [C Pty Limited], [E Pty Limited], [F Pty Limited], [G Pty Limited] and/or [H Pty Limited] (the “companies”) whereby it is sought to do any of the following:

a.    To issue further shares in any of the companies;

b.    To appoint further directors to any of the companies, or to appoint additional or alternate secretary for any of the companies;

c.    To make any loan or similar advance to any other person or entity;

d.    To guarantee any loan or other contractual obligation for the benefit of any other person or entity;

e.    To alter or vary the signatories to the bank accounts of any of the companies without the prior written consent of the wife.

2.   That pending further order the husband be restrained from exercising a power of appointment under any and all of the following trusts without the prior written consent of the wife or failing agreement as ordered by the Court:

a.    [The Wightman] Family Trust;

b.    [B] Unit Trust;

c.    [I] Unit Trust;

d.    [J] Unit Trust;

e.    [K] Unit Trust;

f.     [E] Unit Trust; and

g.     [A] Pty Ltd Superannuation Fund.

3.   That pending further order, [A] Pty Limited (“[A]”), its directors and agents be restrained from exercising its power as Trustee of the [A Pty Ltd] Superannuation Fund (“[A] Super Fund”) to alter the Trust Deed of the [A] Super Fund, pass any resolution altering the member beneficiaries of the [A] Super Fund or altering the rights of the member beneficiaries except that this order does not prevent [A], its directors and agents from carrying out their obligations in respect of the any and all rights that a member beneficiary may exercise in accordance with the trust deed (and any amendments thereto) of the [A] Super Fund.

4.   That pending further order the husband be restrained from withdrawing, disposing of or encumbering in any way, the funds held in the following bank accounts without the wife’s prior written consent:

a.    [D] as Trustee for the [J] Unit Trust – St George Under Bill Acceptance/Discount Facility;

b.    [G] – CBA Premium Business Cheque Account number ...

5.   That pending further order the husband be restrained from taking out any further loans from existing financiers and obtaining new or additional borrowings from any other source without first obtaining the wife’s consent in writing subject to the following:

a.    The period within which the wife is to provide or decline her consent is three (3) working days from the date upon which the request is made by the husband to the wife (defined as the first day if the request is made prior to 5pm failing which the next working day is deemed to be the first day and where the third working day is defined to conclude at 5pm).

6.   The pending further order the husband in his personal capacity and as director or trustee of any company or trust, respectively that owns motor vehicles identified below, is restrained from assigning, selling, mortgaging or otherwise encumbering the following motor vehicles, except with the prior written consent of the wife or as ordered by the Court:

a.    [Japanese motor vehicle] (2004) registration number …;

b.    [European motor vehicle] (2008) hatchback registration number …;

c.    [4WD motor vehicle] (2011) registration number ...

7.   …

8.   …

9.   …

10.           …

11.           That the husband and the wife in their personal capacity and as directors of [D Pty Ltd], and the husband in his capacity as director of [C] Pty Ltd, sign all documents and do all things necessary forthwith to deliver a signed authority and direction to pay [Mr CC] directing him to pay, as director of [Q Pty Ltd], monies under his control due to [C] and to [D] to pay down account … being the commercial line of credit of [D], whether by direct deposit or by drawing a bank cheque in favour of D Pty Ltd ATF J Unit Trust.

Relevant Legal Principles

33. When proceedings are before the Court, the Court has the power to grant injunctive relief in circumstances where “it is necessary to preserve the status quo”, pending the final hearing of a matter.[2]

[2] See G and T (2004) FLC 93-176 at [53] – [54] and where it is “just or convenient to do so”: see Mullen & De Bry (2006) FLC 93-293 applying section 114(3).

34. In those circumstances, counsel for the husband correctly noted, pursuant to section 114(3), the Court must be satisfied that it is just or convenient to grant such an injunction or make an interlocutory order.

35. Further, in the appropriate circumstances, the Court has the power to grant an interlocutory injunction that binds a third party to the litigation.[3]

[3] See Sanders v Sanders (1967) 116 CLR 366; Antonarkis v Delly (1976) FLC 90-063; R v Dovery; Ex parte Ross (1979) 141 CLR 526; Valceski v Valceski (2007) FLC 93-312; H & H and Ors (2007) 36 Fam LR 64 and Zen & JIr [2010] FamCA 606 at [11].

36. In issuing an injunction, it may be appropriate for the Court to consider any undertaking as to damages offered by the party seeking the injunction but such an undertaking may not be essential in family law proceedings.[4]

[4] See Blue Seas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856.

37. A precondition to the Court issuing an interim injunction is that the Court finds “there is a serious issue to be tried and that the balance of convenience supports the making of an order”.[5]

[5] Blue Seas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856 at 86 128; Stowe and Stowe (1981) FLC 91-027 and Yunghanns & Ors v Yunghanns & Ors(1999) FLC 92-836.

38. The applicant for an injunction bears the onus of satisfying the Court that the circumstances justify the making of the Order.[6]

[6] Sieling and Sieling (1979) FLC 90-627.

39. In considering the nature of the injunctive relief, it is important to be aware of the general principle that “equity intervenes to the minimum extent necessary to do justice”.[7]

[7] See Giumelli v Giumelli (1999) 196 CLR 101 at [10] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ referred to in Norton & Locke (2013) 284 FLR 51 at [72].

40. In the context of family law, in Sieling and Sieling (1979) FLC 90-627 at 78 264, the Full Court of the Family Court said:

The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.[8]

[8] See also Menotti & Lamb [2014] FamCA 518 at [41] and Auricchio & Auricchio & Ors [2014] FamCA 185.

41. In the Marriage of Martinellio (1981) FLC 91-050, it was suggested that a party should not be restrained from using their money for ordinary business purposes unless “it could be shown that there was a fear that [the party] would dissipate [the] funds.”[9]

[9]See also Auricchio & Auricchio & Ors [2014] FamCA 185 at [50] and Torr & Amberson [2015] FamCA 290 at [76].

Discussion

42. The primary basis upon which the applicant wife sought injunctive relief was the fact that the husband sold the matrimonial interests in the Z Group of companies in November 2014 and distributed funds away from the entities to whom those funds belong – without her knowledge or consent. Specifically, it was alleged that the Z Group business interests were sold for $22,900,000 ($17,900,000 on settlement and $5,000,000 held in escrow) with the proceeds being distributed as follows:

·$1,000,000 to Ms AA Wightman in repayment of alleged debt to her;

·$390,000 to the mother’s company;

·$70,000 used to settle a professional negligence claim against the husband;

·$376,000 transferred to the Trust Account of a firm of solicitors acting in other Supreme Court proceedings brought against the husband; and

·of the $2,305,728 alleged to have been received by the matrimonial companies, it was alleged that the husband had transferred $1,800,000 out of the matrimonial companies to whom those monies belong.

43. Significantly, at paragraph 74 of his affidavit filed 20 May 2015, the respondent husband admitted that:

On or about 11 April 2014, I lodged documents with ASIC removing [Ms Wightman] from a number of office holder positions (as Director and/or Secretary) and transferring shares owned by her to either [A Pty Ltd] or my mother, [Ms AA]. I did this pursuant to [Ms Wightman’s] power of attorney…The power of attorney has since been revoked by a letter from [Ms Wightman’s] solicitors to my solicitors. I note that one of the ultimate beneficiaries of the shares owned by [A] is [Ms Wightman] as a beneficiary of the Wightman Family Trust. Further, [Ms Wightman] remains a Director of [A Pty Ltd], [E Pty Ltd] and [F Pty Ltd]. I made the decision to transfer the shares to my mother as my nominee. With the benefit of hindsight, I recognise that my actions in altering [Ms Wightman’s] position have caused her concern and I overreacted to her emotional outbursts about my new partner and the twin children we were expecting.

44. Further, at paragraph 86, he said:

I acknowledge that my exercise of [Ms Wightman’s] power of attorney (revoked by her on 26 March 2015 by letter from her solicitors to me) to transfer her sole shareholding in the various family and business entities to my mother or [A Pty Ltd] was ill timed because it was done unilaterally without [Ms Wightman’s] written consent.

45. Paragraph 87 of the respondent husband’s affidavit then sets out his objections to the interim orders sought in the wife’s application and, in some instances, suggests alternative wording. Consistent with that position, and with correspondence sent by his solicitors to the applicant wife’s solicitors, counsel for the respondent advanced alternative draft orders to that proposed by the applicant.

46. Both parties acknowledged that this was an appropriate case for orders to be made with a view to preserving and, where appropriate, managing the acceptable use of the matrimonial property pending the final hearing of the substantive issues in dispute between the parties. In that respect, the respective draft short minutes of order submitted by both parties proposed orders that impacted upon third parties.

47. Essentially, therefore, the matter before the Court was not whether orders should be made pursuant to section 114 of the Act but, rather, the form in which those orders should be made. Having regard to the facts and submissions by the parties, I find that it is both just and convenient to make appropriate orders in this case. In determining that it is convenient to make such orders, I have made an assessment in respect to the balance of convenience as between the parties

48. In making those orders, consistent with the authorities to which I have referred, I have endeavoured to restrain dealing with the property only to the extent that it is reasonably necessary to do so. Further, I have endeavoured to avoid making orders that unduly interfere with the business activities of the parties.

Orders

49. In these proceedings, I have not had the opportunity to explore the wife’s allegation that the husband has, on one previous occasion, inappropriately entered the former matrimonial home. I note the husband’s concession that the wife has exclusive occupation of the former matrimonial home and I have determined that it is unnecessary to make orders of an injunctive nature in respect to that matter at this point in time.

50. Having considered the respective arguments of the parties, I have determined that the most appropriate means of ensuring that the assets of the marriage are preserved; but enabling sufficient flexibility for those assets to be effectively utilised in a transparent, accountable and consultative way is to make the orders as set out at the commencement of this judgment.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 30 July 2015.

Associate:

Date:  30.07.2015