Wilson and Wilson (No.2)

[2008] FamCA 903

FAMILY COURT OF AUSTRALIA

WILSON & WILSON (NO. 2) [2008] FamCA 903

FAMILY LAW – INJUNCTIONS – Interim basis – Orders relating to preventing a person leaving Australia

Family Law Act 1975 (Cth)

Harris and Harris (1993) FLC 92-378; 16 Fam LR 579

APPLICANT: Ms Wilson

RESPONDENT: Mr Wilson

FILE NUMBER: MLC 5009 of 2008

DATE DELIVERED: 15 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.D. Sweeney

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr P.A. Marchetti

SOLICITOR FOR THE RESPONDENT: Lewenberg & Lewenberg

Orders

BY CONSENT

1. That by 3.00pm this day, the husband personally and in his capacity as a director of W Pty Ltd and M Nominees Pty Ltd do all acts and things and sign all documents necessary to irrevocably authorise, and direct, the Westpac Banking Corporation ("the Bank") and its officers and employees to forthwith provide to the wife's solicitors, Messrs. Marshalls & Dent

   (a)All Letters of Offer in respect of any loan, overdraft, bill facility or any other facility from the Bank to W Pty Ltd from 1995 to date;

   (b)All Loan Agreements, facility agreements and bill facility agreements between the Bank and W Pty Ltd from 1995 to date;

   (c)All Letters of Acceptance by W Pty Ltd to the Bank in respect of any loan, overdraft, bill facility or any other facility from 1995 to date;

   (d)All and any ancillary documents relating to items (a) – (c) above and inclusive, but not limited to :-

   (i)Guarantees and Indemnities executed by M Nominees;

   (ii)Surety consents executed by M Nominees or signed on its behalf;

   (iii)Declarations, statutory or otherwise, provided to the Bank by either W Pty Ltd and/or M Nominees and/or the Directors of either company;

   (iv)Securities granted by either W Pty Ltd and/or M Nominees.

   (e)    Copies of any Minutes of any Board Meetings or Directors resolutions of either W Pty Ltd or M Nominees held by the bank in respect of any of the documents listed in item (a) – (d) above, inclusive;

   (f)     Copies of any file notes kept by the Banks in respect of the items listed in item (a) – (e) above, inclusive;

   (g)    Original Mortgage documents in support of any lending or borrowing facility of the Bank supported by Mortgage from M Nominees to the Bank in respect of W Pty Ltd, registered on Title to the real property situate at and known as T property in the State of Victoria, being the land more particularly described in Certificate Title Volume … Folio …, registered Mortgage number … and any Memorandum of Common Provisions relating to same.

2. That in the event of default by the husband discharging his obligations under Order 1 herein:-

   (a)That pursuant to Section 106 A (1) of the Family Law Act 1975, the Registrar or a Deputy Registrar of the Family Court of Australia at Melbourne is appointed to execute all deeds and documents in the name of the husband personally and in his capacity as a director of M Nominees and W Pty Ltd and to do all acts and things to give validity and operation to the said Order;

   (b)The husband pay to the Solicitors for the wife within 14 days the costs of and incidental to the preparation and signing of the said Authority.

   3.  That by 3.00pm this day the husband provide in writing and deliver to the offices of the wife's solicitors Messrs. Marshalls & Dent full details including the name, position and address of the principal employee of the Bank who would be in a position to have access to all and any of the documents specified at Order 1 herein, AND THE COURT NOTES that the Husband advises that such person is Mr D, Westpac Bank, Melbourne.

   BY THE COURT:

3. That within 48 hours the husband deliver to the Registrar or a Deputy Registrar of the Family Court of Australia at Melbourne any Passport issued in his name, to be held by the Court until further Order.

4. That until further Order the husband be and is hereby restrained from departing from the Commonwealth of Australia and it is further ordered that the Australian Federal Police place the name of the husband on the airport Watchlist enforced at all points of arrival and departure in the Commonwealth of Australia and maintain the husband’s name on the Watchlist until further Order.

5. That until further Order the husband be and is hereby restrained from applying to any authority, including an Australian authority, for a new Passport in his name.

6. That a sealed copy of these Orders be forthwith served on the Bank, and the relevant person to be advised by the husband in compliance with Order 3 herein (or in the absence of any compliance with paragraph 3 hereof then the Principal Legal Officer at the Bank) AND IT IS REQUESTED that the Bank and/or the relevant person make and provide the relevant documents available to the wife’s solicitors forthwith. 

7. The husband personally and in any capacity as a Director or Shareholder of any company shall not encumber, sell, gift, deal with, alienate or dispose of any property including any property, assets (including shares) registered in the name of the husband, the wife or either of them or in the name of any company in which he holds shares or directorship or any trust of which he is appointor or trustee save upon 14 days prior notice to the wife's solicitors.

8. Within 14 days the wife provide to the husband's solicitors a list of chattels removed from the property at T since 25 June 2008.

10.That the husband pay the wife’s costs of and incidental to this Application fixed in the amount of $8,345.00, such payment to be stayed for one month.

11.That the wife's Application in a Case filed 8 October 2008 and the husband's Response filed this day be dismissed.

12.Certify for Counsel.

BY CONSENT

13.Within 48 hours the husband provide details of :

(a)the full address; and

(b)the registered proprietor;

of the real properties referred to in paragraph 25 of his Affidavit filed in these proceedings on 14 October 2008.

IT IS NOTED that publication of this judgment under the pseudonym Wilson & Wilson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5009 of 2008

MS WILSON

Applicant

And

MR WILSON

Respondent

REASONS FOR JUDGMENT

1. On 8 October 2008 the wife filed an application in a case seeking in essence enforcement of existing interim orders. 

2. Today the husband has filed a responding application saying that he has complied with the orders that were previously made but he now also seeks some orders himself.  The wife also seeks some orders, to which I will return.

3. This is the third time this matter has been before the court since the proceedings began in June 2008.  Notwithstanding the financial affairs of the parties may be complicated, the orders seem to me to be standard and uncontroversial. 

4. On the second occasion the matter was before the court, which was 30 July 2008, Dessau J said she was unimpressed with the arguments of the husband about the compliance with orders then in existence.  I have read her Honour's judgment.  If her Honour did not make her concern about the husband's attitude to responsibilities clear, I will in the matter that I pronounce today. 

5. Insofar as that the husband may be under some misapprehension about not only his disclosure obligations but also his need for cooperation, let me make clear that I have an uncomfortable sense that he is being obtuse and difficult.  I might be wrong about that because of the corporate problems at the moment, but the evidence about his approach to these proceedings is less than convincing.

6. There are two and probably three examples of that.  The first is that the husband objected to the wife's solicitor's drafting of the bank authority which I am told is now amended and ready to be signed.  The objection was on the basis that it was fishing and my reading between the lines was that it was oppressive.  I have looked at the document that is tendered and annexed to the affidavit and I disagree strongly with the husband's position.  As I said, that probably now seems to be rectified.

7. The second concern is that the husband was obliged to provide a list of properties over which he had some control.  To do that under the order he was to provide a list.  His initial description as I read it was brief and his subsequent description in the affidavit form was in my view disingenuous.

8. The third example about which I have some concern, and I am not prepared to make strong statements about this, relates to the company MC Pty Ltd.  The husband in a very simple and direct statement in his affidavit says that he is not a director or shareholder.  To some extent that could be seen as mischievous because, depending upon what is the ultimate outcome of the ownership of a company called KD Pty Ltd, it seems to me that, although it is asserted by the husband that KD has had no real interest in MC Pty Ltd for some 15 years, historical records show the entire opposite position.

9. If in fact the company record, which is a public document, is correct, and I am obliged at this stage to conclude it is, then the husband may technically be right in respect of his description of his ownership of MC Pty Ltd.  But that would give me a very strong impression that he is being obtuse and committing the sin of omission by not telling the court the full story.  It is this lack of candour about his responsibilities in relation to the present information that makes me concerned.

10. I want to make it very clear to both parties, but particularly the husband, that I am not making findings of fact here, nor am I or should I, be in a position to do so in a duty list.  However, in circumstances where the parties know that interim orders are pursued or being pursued, they have to present evidence which is comprehensive and clear.  I am not at all comfortable nor satisfied on even the most basic reading of the husband's material, that he has even attempted to be candid and frank.

11. I am also troubled about the fact that some of the matters set out in the affidavit of the husband are of a commentary nature and detail his belief.  That is not evidence and it is not helpful.

12. Having said all of that, and it has got to also be said that the husband has paid his maintenance obligations up to date and has now consented to the orders in relation to the authority to the Westpac Bank that I have just mentioned, sadly, in his case, that sudden offer of cooperation, whilst sensible, also means that I should be cautious about his attitude to contentious matters and I now turn to them.

13. The wife effectively today seeks an order that the husband comply with all outstanding orders.  I do not propose to make that order.  The husband already has an obligation under orders and I don't see any point in me making an order that he comply with an order.   It is much more sensible that he understands he has already got an obligation and it is not my function to repeat it.

14. The major issue that I am asked to determine on behalf of the wife today however, relates the husband's freedom of movement.  She seeks specifically orders that he deliver his passbook to the court to be held until further order, that he be placed on the airport watch list which would effectively preclude him from exiting any international departure point, and that he be restrained from applying for a new passport.

15. In support of that application, the wife points to the fact that the Westpac Banking Corporation has as mortgagee, possession of the former matrimonial home and will shortly sell it.  She expresses concern that the husband may seek to leave the country.  She vaguely refers to the fact that in the past he has told her that if there was trouble he would leave the jurisdiction.  She also vaguely referred to some unnamed people telling her about United States business interests or ventures that the husband has.  I propose to ignore the last point on the basis that the source is unnamed.

16. However, as Mr Sweeney points out, the allegation of substantial moneys possibly having gone missing and the husband being under pressure from statutory demands in relation to his corporate obligations could create an environment where there is nothing here to hold him.  If he left the country, the wife would clearly be left floundering, particularly as in some respects she has little control over the other creditors and people involved in the corporate entities.

17. In addition, there is the unresolved issue about whether a bank document purporting to have been signed by the wife was in fact so signed by her.  The husband's side of the story is he denies ever saying that he would leave the jurisdiction.  He says he has no intention of doing so.  In respect of the forgery issue, he simply put that aside in his affidavit material saying that it wasn't relevant because the initial financial documents are undisputed.

18. I am aware, however, from documents that I've read on the file, that the mortgage has been substantially increased and as such who signed the document, which is contentious, may become extremely important and relevant.

19. Mr Marchetti on behalf of the husband says there is no evidence and therefore no risk upon which I can make the order. I disagree. The order is made under s 114 of the Family Law Act 1975 (Cth) (“the Act”).  Whilst it is a substantial imposition on any person's freedom of movement to prevent them from leaving Australia, the fundamental issue is whether there is any evidence that would enable me to say that it would be proper to make that injunction.  I am satisfied that there is such evidence here.

20. In addition, I am only proposing to inconvenience the husband temporarily whilst these issues are investigated and will give him liberty to apply if he in fact decides that he needs to leave the country.  That liberty to apply can be used on short notice. 

21. As for what evidence there is to say the order is proper, I have taken into account the husband's failure to comply with orders to date and particular orders that relate to discovery in a pressing and complex financial matter.  Accordingly I propose to make the order sought by the wife in minute numbers 8, 9 and 10 of her proposed orders.

22. The husband seeks orders for the sale of a number of motor vehicles, but ultimately conceded that it would be better to make an order just referring to his motor car.  The wife does not object to that.  The dispute, however, relates to what happens to the money from the sale.  The husband wants it, the wife wants it in trust.

23. The Full Court in Harris and Harris (1993) FLC 92-378; 16 Fam LR 579 referred to the problems which arise from making interim and partial property settlement. The Full Court there said that orders of that nature should only be made where the circumstances were exceptional. I don't find the circumstances here exceptional at all. In addition to that, I do not have any evidence of the values of the vehicles, other than the husband's own inexpert view. That is not evidence. Accordingly, I decline to make the order for the sale. If the parties can work out an arrangement between themselves, so be it.

24. In addition, the husband wants a list of chattels.  Whilst the wife points to the unnecessary nature of that order, I do not detect serious opposition to it and I propose to make that order.  Interestingly, it was not the subject of a request, I am told, until today, so I have concluded that it is not a major issue for the husband.

25. In June this year, I ordered under paragraph 10 of the orders that I then made, and I stress those orders were made by consent, for an appointment of a single expert witness to do some valuations.  Since then there has been a tumultuous amount of activity concerning the corporate structures.  That in reality should make the valuation task easier because the single expert witness can work with the various administrators and liquidators.  I see no reason in this case to alter the orders that I made in June.  In fact, it may in reality crystallise the parties' minds on a division of property.

26. Those were the applications that were before me on the documents.  Subsequent to the luncheon break, Mr Sweeney of counsel for the wife has raised the fact that the position articulated by the husband in relation to the MC company has created heightened concern about that fact that to the orders I made in June was an undertaking and the undertaking was clearly made and given after careful consideration as the husband was represented by counsel.  It is also my understanding that the order that I made on that day was based upon the undertaking.  The wife indicates that as result of what has happened now, and particularly the reference that I've just made to MC Pty Ltd, that the undertaking ought to be converted to an order.  I think there is some sense in that, and to the extent that it makes it clearer that that is an obligation now, rather than simply something that the husband was agreeing to do, I propose to say that that is an order that is proper in the circumstances.

27. An application is made by the wife for costs and the quantum is $8345. The provisions of s 117 of the Act says that each party shall bear their own costs unless the court is satisfied that there is a justification for departing from that particular principle. In this case I have little hesitation in saying that I think there is a justification for making the order for costs.

28. In saying that, the Act requires me to take into account a number of matters set out in s 117(2A). The first relates to the financial circumstances of each of the parties. I am not entirely clear what the financial circumstances of each of the parties is currently, but there was certainly some frenetic activity involving corporate entities. Each of the parties is legally represented so to that extent I have concluded that they have some means.

29. The husband maintains that he has limited access to funds, but by the same token also sets out in his affidavit that outside the money that he receives, he also has to rely upon an overdraft.  There is no evidence as to exactly what the current situation is with that.  I am satisfied that the financial circumstances of the parties do not act as a disqualifying factor from making an order.  I am satisfied there is no legal aid issue in this case.

30. The next relates to the question of the conduct of the parties in relation to the proceedings, and in particular a number of matters about discovery.  I've already made my views entirely clear about all of that, and in my view that would be a justification alone for making an order for costs in this case.

31. There is also a requirement that the court take into account whether the proceedings were necessitated by the failure of the party to comply with previous court orders, and even though the orders may have been to a very large degree, if not entirely, complied with today, they were certainly not up to the date at the time that the proceedings had to be commenced.

32. Importantly, there is a requirement the court take into whether a party to the proceedings has been wholly unsuccessful.  Whilst the husband may argue that the application that he made sought chattels and that was not brought to the attention to the wife until very late, if not today, and on that basis that does not assist him in relation to the argument that I made to Mr Marchetti about the question of the authority.  I do not think I need to trouble too much about the wording of the authority - I have already expressed my concern about the approach the husband was taking in my reference to his claim that the wife was on a fishing expedition.  So to that extent, in my view, the husband has been wholly unsuccessful today.  In my view this is a matter in which an order for cost should be made.  The application is for $8345.  There is nothing unusual about the quantum looking at the figures presented to me and I propose to make an order for that sum.

1. The husband has also suggest that even if I didn't take the course, that the costs should be reserved.  I have taken the approach that that is inappropriate in circumstances where it is putting off the problem to somebody else in the future.  I understand the nature of the proceedings today.  As I have said, it is appropriate for an order for costs to me made.

I certify that the preceding Thirty Three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin 

Associate: 

Date:  28 October 2008