YAMADA & BERNARD

[2015] FamCA 137

FAMILY COURT OF AUSTRALIA

YAMADA & BERNARD [2015] FamCA 137

FAMILY LAW – INJUNCTION – preservation of property – ex parte proceedings – where the wife seeks an injunction to prevent the husband from removing assets from the Commonwealth of Australia – whether there is a risk of disposal of property to defeat an order – where the husband is currently outside the Commonwealth of Australia.

APPLICANT: Ms Yamada

RESPONDENT: Mr Bernard

FILE NUMBER: BRC 1690 of 2015

DATE DELIVERED: 5 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 5 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITOR FOR THE APPLICANT: HopgoodGanim

SOLICITOR FOR THE RESPONDENT: No appearance

Orders      

UPON THE UNDERTAKING by the Applicant as to damages and that she will pay to any persons (other than the Respondent) any expenses reasonably incurred by such persons and any damages sustained by such persons consequent upon reasonable actions taken by them 

IT IS ORDERED THAT

1. The Application in a Case filed 4 March 2015 be heard on an urgent and ex parte basis pursuant to s 114 (1) (e) Family Law Act 1975 (Cth) and Rules 5.12 and 14.05 of the Family Law Rules (2004).

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Until further order, an injunction issue restraining the Respondent from by himself and his servants removing, or causing, or permitting, to be removed from the Commonwealth of Australia, or selling, charging, mortgaging or otherwise dealing with or disposing of, or causing or permitting to be sold, charged, mortgaged or otherwise dealt with or disposed of, all or any of his asserts within Australia, whether or not they are in his own name, whether they are solely or jointly owned and that for the purposes of this order the respondent’s assets shall include any assets which he has the power, directly or indirectly, to dispose of or deal with as if it were his own and that the respondent is to be regarded as having such power if a third party holds or controls the asset in accordance with his direct or indirect instructions, including but without affecting the generality of the foregoing:

   (a)       the property situated at Gold Coast Suburb P in the State of Queensland (more particularly described as lot … on Registered Plan …, County of …, Parish of …);

   (b)       any funds in any Australian bank account operated by the Respondent (in his name or in the name of Mr C) or on his behalf, including but not limited to:

   (i)National Australia Bank account number …2671;

   (ii)National Australia Bank account number …7090;

   (iii)Suncorp account number …6770;

   (iv)Suncorp account number …9187;

   (v)Suncorp passbook account number …770;

   (vi)Suncorp Fixed Term Deposit number …498; and

   (vii)Suncorp Fixed Term Deposit number …233.

2. The Applicant serve sealed copies of this Order, and this Application and Affidavit(s) in support upon the Respondent which shall be deemed to be effected by faxing those documents to the office of X Firm Lawyers as soon as practicable after this Order issues and that X Firm Lawyers bring to the Respondent’s immediate attention by all means practicable the existence of the Orders and supporting material.

3. The Applicant serve a sealed copy of this Order and the material relied upon in support of the Application in a Case filed 4 March 2015 on Mr C by whatever electronic means is available.

4. The Applicant has liberty to provide a copy of this Order and/or give notice of the injunction to any banking institution known to hold monies under the control of the Respondent.

5. That either party have liberty to apply to have the matter relisted upon the giving of 48 hours’ notice to the other party.

6. That the Applicant’s costs of this Application be reserved. 

7. The Application in a Case filed 4 March 2015 is adjourned to 4.00 pm on Friday, 7 March 2015 before the Honourable Justice Hogan in the Family Court of Australia at Brisbane.

AND IT IS DIRECTED

1. That the parties be provided with a copy of Exhibit “A” as soon as it is available.

NOTATION:

1. Upon receiving a Transcript of today’s proceedings, the Court intends to mark the same provisionally as Exhibit “A” and to ensure that the parties are provided with a copy of Exhibit “A” as soon as it is available.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yamada & Bernard 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 BRISBANE

FILE NUMBER: BRC 1690 of 2015

Ms Yamada

Applicant

And

Mr Bernard

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. There is before the Court today an Application in a Case seeking injunctive relief as outlined in the minute of order provided by Counsel who appears on behalf of the applicant. 

2. The background circumstances are readily apparent from a perusal of the affidavit material filed by the applicant in support of the application.

3. In brief summary, the parties commenced cohabitation in 1973 in New Caledonia, and, on the applicant’s evidence, separated on 14 January 2014.  Thus, theirs was a relationship of some 41 years duration.

4. The parties have two adult children, Y, born in 1975, who is 40 years of age, and M, born in 1981, who is 33 years of age.  The evidence establishes that the parties immigrated to Australia in November 1989 and that the applicant has continued to live in this country since that time.  The respondent lives in – or moves between - both Australia and New Caledonia.  The evidence also establishes that the respondent is not a resident of Australia but maintains a business and a presence in New Caledonia.

5. The evidence also establishes that one of the aspects of the property of the parties the subject of consideration of the proceedings commenced by the wife on 25 February 2015 is a transport business and associated licences, in New Caledonia.

6. It appears that in the time since the parties separated in January of last year, there have been a number of occasions of communication between legal representatives engaged by each of them.

7. For example, on at least two occasions, namely, on 20 August 2014 and 18 November 2014, the applicant has, via her solicitors and correspondence authored by them on her behalf, indicated to the respondent via his legal representatives that she did not consent to him dealing with or disposing of any assets within his control or possession pending a property settlement.

8. It is obvious from a consideration of the chronology, that the applicant at least, considered herself to be in a process of negotiation with the respondent - no doubt in the hope of arriving at a mutually acceptable resolution of their property settlement proceedings (using that term loosely, given that formal proceedings were not commenced until 25 February 2015 when the applicant filed an initiating application in this court).

9. It seems to be clear that the parties engaged in some process of negotiation and that requests were made for the provision of documents and information necessary to facilitate that process.

10. The applicant’s evidence is that the respondent was, during the course of their relationship, the party responsible for the management of financial affairs.

11. She asserts that (after separation) on 28 February 2014, the respondent withdrew approximately $75,000 from Westpac bank account leaving a balance of approximately $20,000. She says that after that withdrawal, she became worried the respondent would withdraw the remaining funds and so, on 5 March 2014, she withdrew $18,000 from the account and deposited this into an account in her own name.  The applicant also asserts that, at the time of the parties’ separation in January 2014, the respondent restricted her access to credit cards and changed the address provided to financial institutions, such that correspondence from them previously directed to the shared residence of the parties (their home address) in Australia went to an address unknown to her.

12. The applicant also says the respondent stopped making monthly payments of funds to her – this amounted to a departure from the position prior to their separation.

13. The respondent’s actions in this regard are, as I understand it, one of the matters relied upon to seek to establish the risk said to underlie the application currently before the court. 

14. The initiating application filed on 25 February 2015 proposes that the applicant seeks to retain or receive property having a value of 55 per cent of the net value of the property of the parties to the relationship.

15. Further particularity of those items of property and assets the applicant seeks to retain are contained within the initiating application.  They include real property situated at Suburb S and Suburb P in Queensland, balances in her bank accounts, furniture in her possession (including furniture contained in the Suburb P property), chattels, personal effects, jewellery and a 1994 motor vehicle.  She also seeks that, in order to make up, as it were, the 55 per cent she says she is entitled to on a just and equitable division of the property of the parties, a cash payment be made.

16. The applicant proposes the respondent retain the balances in bank accounts held by him (less any withdrawal necessary to meet a cash payment to her), furniture, chattels, personal effects, jewellery, a motor vehicle, a transport business and associated licences in New Caledonia, together with any interest he may have in other property or assets in New Caledonia. 

17. The applicant is 60 years of age and engaged in home duties.  The respondent is 63 years of age and has, at least, some business interests, it seems, in New Caledonia.

18. Part of the assets of the parties and an issue about which there appears to be some dispute at this point are the contents of bank accounts held in the name of the respondent and a Mr C. 

19. The applicant gives evidence to the effect that, in January 1999, the respondent either was granted or obtained a power of attorney in relation to his brother on the basis, she says, that this permitted and/or enabled him (the respondent) to hold money in bank accounts in Australia in his brother’s name.  She further asserts that, having obtained this power of attorney in 1999, the respondent opened a bank account in his brother’s name and deposited joint or relationship funds into the same.

20. She further asserts that, in a not dissimilar way, the respondent was granted or obtained a power of attorney from a Mr C - said to be a friend of the respondents, living in New Caledonia.  She says she is aware from conversations with the respondent that he (the respondent) opened various bank accounts with Suncorp Bank in Mr C’s name. She asserts that, after separation, the respondent continued to hold money in these accounts.  She says the funds in those accounts are, in fact, funds of the respondent and thus property of the parties to the relationship.

21. The applicant also asserts that Mr C has never had any knowledge of the accounts or the funds in them and is not the owner, therefore, of any funds held in those accounts. 

22. On the evidence before the court at this point in time - accepting, of course, that, understandably, some of the values asserted to relate to various assets of the parties are estimates - it appears that, at the highest (in the sense that all of the funds held in all of the bank accounts are found to be property of the parties to the relationship), the net value of the assets of the parties and, therefore, the property amenable to order is in the vicinity of about $2,842,633.78.

23. If the money held in accounts in Mr C’s name is excluded from consideration - on the basis that a court found that it was, in fact, his money and, thus, not property of the parties of the relationship - the value of the pool of property available for distribution between the parties would be $2,416,126.75. 

24. The applicant’s evidence establishes that she holds assets and property in her name with an approximate value of $528,892.09.  This is 18.6 per cent of the entire property pool if balances in accounts held in Mr C’s name are included or 21.89 per cent if balances in those accounts are excluded.

25. The application filed by the applicant, as I’ve said, seeks a property division which would see her receive 55 per cent of the net value of the property of the parties. If an order to this effect was made using the larger value, she would receive property with a value of just over $1.5 million.  If the pool was found to be the smaller amount, her entitlement at a 55 per cent conclusion would be just over $1.3 million. 

26. Even taking into account the value of the real property in Australia held in the respondent’s name - said to be at about $500,000 - it is immediately apparent that there would be a shortfall: no doubt, this the basis upon which the applicant seeks an order for the payment of a cash lump sum.

27. If the Suburb P property was transferred to her and valued at $500,000, then, together with the other property and assets already within her possession and/or control and/or ownership, she would have property valued in the vicinity of $1,028.000.00.  Thus, the cash payment required, on the division and premises I have outlined, would be (on the larger possible pool) just over $500,000 or (on the smaller pool) just under $300,000.

28. Even if a court ultimately determined that a just and equitable resolution of the property settlement proceedings between the parties was one which saw each of them receive property and assets having a value of half of the total value of the property, it is also immediately apparent that the applicant would need to receive a not insignificant lump sum payment: somewhere in the $400,000s at the higher level and in the low $200,000 range if the lower value of the property was ultimately found.

29. The evidence establishes that the respondent has cash at bank in accounts in his name in the vicinity of $980,000.  He, as I have said, denies that any funds in any bank accounts held in Mr C’s name are his property.  Those funds have a total of about $426,500: a not insignificant sum.

30. The application currently before the Court seems to have had its significant genesis in events that occurred on 6 February 2015.  The applicant gives evidence of a conversation with her son, Y: that he told her the respondent had told him that he was in the process of transferring money from his Australian bank accounts to New Caledonia, that he had already, in fact, transferred funds to overseas bank accounts but the New Caledonian Tax Office was investigating the origin of these deposits or deposits made by him in that country and that his lawyer had advised him to remove the money in his bank accounts from the Australian jurisdiction.

31. The applicant’s evidence is that, after receiving this information, her solicitors forwarded further correspondence to the respondent’s solicitors on 9 February 2015 raising an allegation and/or queries in relation to the depletion or removal of funds from Australia to New Caledonia and reiterating that she did not consent to the same. 

32. As I understand the evidence before the Court at this point, neither the applicant nor her solicitors have received any meaningful response in relation to the queries and/or concerns raised in the correspondence dated 9 February 2015.  There is no evidence to suggest, for example, that the respondent’s solicitors provided to the applicant’s solicitors an undertaking or a reassurance that the respondent would not remove funds from the Commonwealth of Australia without the applicant’s consent in writing or otherwise or until the proceedings had been resolved.

33. In this context then, the applicant’s evidence - that she became concerned - is certainly understandable.  The consequence of her concern was that her solicitors were instructed to commence proceedings in this Court.  The applicant says she gave her solicitors instructions not to serve the respondent with the initiating application when it was filed because of her concern that, if he became aware of the institution of proceedings in this Court, he (the respondent) may act to remove money from the Commonwealth of Australia.  She deposes to remaining hopeful, in a sense, that the parties may be able to reach some resolution of their property issues and that she hoped the respondent may be “bluffing” and had not, in fact, moved money or funds from Australia.

34. The evidence reveals that, on 3 March 2015, the applicant was telephoned by her son, Y, who told her he had been at the Suburb S property checking mail.  Her evidence is to the effect that Y forwarded to M (her daughter) an email entitled “Docs”, saying ‘find attached docs received in mail yesterday.’

35. The attached document, sent by electronic means, appears to be a copy of correspondence dated 26 February 2015 directed to the respondent from his lawyers. 

36. Contained within that document are certain comments which certainly provide a basis for a conclusion that I reach, at this stage, there is a risk of a not insignificant nature that, absent an order preventing the respondent from removing funds from Australia, such action may well be taken by him. 

37. Mr Linklater-Steele, who appears on behalf of the applicant, has made helpful submissions in relation to the manner in which the Court should deal, at this stage, with the contents of the correspondence dated 26 February 2015. There is much weight in many of his submissions - it may well be that, after affording to the respondent an opportunity to be heard in relation to the admissibility or otherwise of the contents of that correspondence and to make and be heard in relation to the application of sections 118, 125 and 138 of the Evidence Act 1995 (Cth) and their operation in relation to the manner in which the Court ultimately deals with that correspondence.

38. I am persuaded at this stage that, even absent the contents of the correspondence, there is a sufficient basis to conclude that, absent an order preventing the removal of funds from Australia, a significant risk of the same remains.

39. Factors taken into account in arriving at this conclusion include the fact that the respondent is currently out of the jurisdiction, is not a resident of Australia, retains a presence and living arrangement in New Caledonia, that New Caledonia is not a country in respect of which the operation of the Foreign JudgmentsAct 1991 (Cth) and/or Regulations would mean that an order obtained by the applicant here could be enforced in New Caledonia against property held by the respondent in New Caledonia and the fact that, when regard is had to the property of the parties (as I have already recounted) there remains a significant risk that, if funds are removed from Australia, the applicant may well be deprived of the opportunity to receive those funds which a Court may well be persuaded to conclude it is just and equitable she receive following a final determination of the issues between the parties.

40. In arriving at the conclusion that I have - namely that I am persuaded to make orders substantially in terms of those sought by the applicant - I have, of course, had regard to the statements of principle made by the Full Court in Mullen & De Bry (2006) FLC 93-293 and, of course, also to Waugh and Waugh (2000) FLC 93-052.

41. It seems to me that, taking into account also that the applicant has offered, appropriately, an undertaking as to damages, the balance of convenience very much favours the making of the orders sought by her – particularly given that, as said during discourse with Mr Linklater-Steele, I intend to order that the matter return before me at 4 pm tomorrow. 

42. In that way, I will, to the best of this Court’s ability, have implemented the obligation - cast upon it when making orders of the nature of those I intend to make - to bring the matter back as soon as practicable and afford to the respondent, a party whose interests will be significantly adversely affected by the making of the interlocutory injunctions, a right to be heard in relation to them. 

1. I intend, therefore, to make orders to ensure that the respondent and his legal representatives are given notice of the orders as soon as practicable after they are made and issued from the Court this morning.  In that way, the respondent will have the best part of two full business days within which to be in a position to be heard tomorrow or, if the parties reach agreement as to the future conduct and/or future orders, then that, of course, can also be brought to my attention at that time. 

2. I am well persuaded, as I have said, that the risk of dissipation of funds and, importantly, the consequences to the applicant of such a course (if it occurred) are of such significance that injunctive orders should be made. I am persuaded on the evidence that the factors to which I have referred establish a real risk of funds being removed from the jurisdiction. Given the limited timeframe during which the order I intend to make will operate (namely until 4 pm tomorrow afternoon) and the fact that the respondent is currently out of Australia and, thus, has available to him funds held in New Caledonia and his residence, presumably, in Caledonia and the receipts from the business operated in New Caledonia, there does not seem to me to be any particular impost or significant detriment to him associated with the making of the order.

3. In addition to the orders contained in the minute of order provided by Mr Linklater-Steele, it also seems to me to be proper to require the applicant, via her solicitors, to inform Mr C of the existence of the order.  Whilst the applicant asserts that funds held in accounts in his name in Australia are not his - but rather, property of the respondent - that is an issue in dispute as between the applicant and respondent, even on the material before me.  It seems to me, therefore, to be proper, of course, that Mr C - a party whose interests may be affected if, for example, the funds are in fact his - is given notice of an order which limits, even for a limited period of time, his access to such funds.

4. In addition to the orders contained in the minute, there will be an order requiring, as I have said, the applicant’s solicitors to forward a copy of the order made today to Mr C, by whatever electronic means is appropriate and/or available to them.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 5 March 2015.

Associate:

Date:  9 March 2015