Zamir & Zamir (No 2)
[2022] FedCFamC1F 743
Federal Circuit and Family Court of Australia
(DIVISION 1)
Zamir & Zamir (No 2) [2022] FedCFamC1F 743
File number(s): PAC 2751 of 2021 Judgment of: ALTOBELLI J Date of judgment: 29 September 2022 Catchwords: FAMILY LAW – CONTEMPT – First respondent found to have acted in contempt of Court on three counts – Serious, ongoing and flagrant breaches of Court orders – Sentence of six months’ imprisonment – Warrant of Commitment issued.
FAMILY LAW – ANTI-SUIT INJUNCTION – Orders made restraining first respondent from commencing proceedings overseas.
FAMILY LAW – PRACTICE AND PROCEDURE – Litigation guardian – Application for appointment of litigation guardian dismissed.
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.12 Cases cited: Zamir & Zamir [2021] FedCFamC1F 9 Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 20 September 2022 Place: Sydney (via videoconference) Counsel for the Applicant: Mr Fermanis Solicitor for the Applicant: Gramelis Attorneys The Respondents: No appearance ORDERS
PAC 2751 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZAMIR
Applicant
AND: MR ZAMIR
First Respondent
MS R ZAMIR
Second Respondent
J PTY LTD
Third Respondent
Y
Fourth Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
29 September 2022
THE COURT ORDERS PENDING FURTHER ORDRER THAT:
1.The First Respondent is restrained from prosecuting, maintaining or continuing any legal proceedings against the Applicant, or any person acting as her agent, in any foreign jurisdictions, including but not limited to City K and Country F, with respect to any financial, property or parenting matters (with the exception of any child who is not currently living in Australia), except to cause any such legal proceedings in those jurisdictions to be withdrawn.
THE COURT ORDERS THAT:
2.The First Respondent MR ZAMIR is found to have acted in contempt of Court and is sentenced to six months’ imprisonment commencing immediately.
3.For the purposes of Order 2, a Warrant of Commitment be issued in the usual form.
4.The operation of Order 3 is stayed for a period of 28 days.
5.Within seven days of the date of these orders, the Applicant’s legal representatives notify the First Respondent of these orders in accordance with Order 3 of the orders made 2 September 2022.
6.The application for the appointment of a litigation guardian for the Fourth Respondent is dismissed.
The Court notes that:
A.These orders were made in the absence of the respondents and that the provisions of r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) may apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zamir & Zamir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Introduction
These reasons for judgment explain the orders made on an undefended basis against Mr Zamir, the first respondent husband (“the husband”) on the application of Ms Zamir, the applicant wife (“the wife”).
Background
The wife and the husband are engaged in financial and parenting proceedings in this Court. The wife currently resides in Australia with four of the children, and the husband resides in the Country H with one of the children. In Zamir & Zamir [2021] FedCFamC1F 9, Hannam J determined a review of a registrar’s decision to grant orders on 2 August 2021. Her Honour set aside those orders and made fresh orders in lieu. For present purposes, the Court adopts her Honour’s statements of background at [1]–[44] of those reasons.
The children of the relationship are aged 23, 22, 16 (a son), 16 (a daughter) and 12. Only the 16 year old son remains living with the husband overseas. The rest of the children live with the wife in Australia. The wife and children in Australia live in what appears to be the only remaining asset in Australia which is the family home located in a suburb of Sydney. The wife alleges, and the evidence suggests, that the husband has disposed of most of the assets that were formerly in Australia and has accessed the line of credit secured over the family home, thus reducing the available equity. All relevant assets are in the name of the husband. The husband, who was paying the mortgage over the home is no longer doing so. The mortgage is in default. The mortgagee bank appeared at the interim defended hearing on 20 September 2022 and neither consented to nor opposed the orders made. Counsel for the wife conceded that it is unlikely that the husband will return to Australia.
The Court made orders on 20 September 2022, one of which appointed the wife as trustee for sale of the family home. These orders are reproduced in the Schedule A to these reasons. Ex tempore reasons were given for making those orders. The Court observes that the reasons for judgment of Hannam J dated 2 September 2021 also provide ample foundation for the making of those orders.
The husband has not appeared or participated in these proceedings since his lawyers filed a Notice of Ceasing to Act on 13 July 2022. Various orders for substituted service have been made and the Court is satisfied that all such orders have been complied with. There was no appearance by or on behalf of the husband when the matter was called. Having regard to the urgency of the issues raised, the Court proceeded to hear the wife’s application on an undefended basis.
A more comprehensive chronology prepared on behalf of the wife is reproduced in Schedule B to these reasons.
The Evidence
In support of her case, the wife relied on the following material:
(a)Her Application in a Proceeding filed 24 December 2021;
(b)Affidavit of Mr L filed 24 December 2021;
(c)Her Amended Initiating Application filed 15 December 2021;
(d)Affidavit of Ms M filed 20 January 2022;
(e)Typescript of consent orders signed by the wife and husband on 2 March 2022;
(f)Her Application – Contempt filed 22 July 2022;
(g)Her affidavit filed 22 July 2022;
(h)Her Application in a Proceeding filed 10 August 2022;
(i)Her affidavit and corresponding exhibits filed 10 August 2022;
(j)Her letter for urgency filed 10 August 2022;
(k)Her Financial Statement filed 10 August 2022;
(l)Her Financial Questionnaire filed 10 August 2022;
(m)Her affidavit filed 15 August 2022;
(n)Affidavit of Mr L filed 19 September 2022;
(o)Her case outline filed 19 September 2022;
(p)Her chronology provided to the Court on 20 September 2022; and
(q)Her minute of order provided to the Court on 20 September 2022.
The Contempt Application
The wife’s case outline filed 19 September 2022 sets out at paragraphs 34–54 her submissions with respect to this part of her application.
34.In Ganem & Ganem (No.2) [2013] FamCA 257, Aldridge J held (approved by the Full Court in Oakley & Millar [2019] FamCAFC 12):
10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate [2002] FamCA 356; (2002) 29 Fam LR 195; (2002) FLC 93-107)
11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
•The respondent knew the terms of the orders. (Mead and Mead [2006] FamCA 435; (2006) FLC 93-267 at 80, 536)
• The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91- 729 at 75, 294)
• The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.
• The act must involve a flagrant challenge to the authority of the court. In Bande and Cade [2011] FamCAFC 93; 45 FAM LR 376 at 39 the Full Court said:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen [1994] FamCA 103; (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” ... is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD ... it is a question of fact and degree whether the stringent terms of the section are satisfied.
The Orders
35.On 2 August 2021, a Senior Judicial Registrar made injunctive orders which ostensibly restrained the Respondent from dealing with his assets. (the First Orders) The Respondent was represented at the time of the hearing.
36.On 6 August 2021, the Respondent filed an Application for Review in respect of the First Orders. The Respondent did not seek a stay of the orders. The Respondent filed this application via his then solicitors.
37.On 2 September 2021, Hannam J made injunctive orders which had the effect of restraining the Respondent from, inter alia, diminishing the value of any assets outside of Australia. (the Second Orders) The Respondent was represented at the time of the hearing. There is no stay of those orders.
38.The Applicant relies on three counts in support of her Application for Contempt:
38.1.A transfer of property being an apartment known as and located at [Suburb N, City O, Country F], ([Suburb N] Apartment) to [Y] which took place [in mid] 2021 (the First Count).
38.2.A transfer of property being an an apartment known as and located at [Suburb P, City O, Country F] ([Suburb P] Apartment) to [Ms S] which took place on or about [mid] 2021 (the Second Count)
38.3.On 21 March 2022, the Respondent received a bonus (via two separate payments) in the amount of approximately AUD$659,000. [In early] 2022, the Respondent disbursed the sum of AUD$580,000 asserting it was a loan to [Mr Q]. (the Third Count)
The First Count
39. The Applicant submits as follows:
39.1.On 6 March 2021, the Respondent purportedly entered into a contract of sale with the effect of transferring his interest in the [Suburb N] Apartment to the parties’ son. The said purported transaction is said to have been conducted by the Respondent in his capacity as [Y’s] guardian as well as on his behalf.
39.2.[In mid-2021], the Respondent purportedly completed the said contract.
39.3.[In mid-2021], the Respondent purportedly received the sum of 570,821,026 [Country F currency] in consideration for the socalled conveyance.
40.There is not a scintilla of evidence that would objectively establish the foregoing.
41.Somewhat curiously, the purported contract does not stipulate a time for completion.
42.The purported sale transaction took place after the making of the First Orders and with the Respondent knowing the terms of those orders.
43.Respectfully, the breach of the First Order is so serious that it is a flagrant challenge to the authority of the Court.
The Second Count
44.In late 2002, the Respondent became the registered proprietor of the [Suburb P] Apartment.
45.In mid-2021, the Respondent purported to transfer his interest in the [Suburb P] Apartment to his mother.
46.There is not a scintilla of evidence that would objectively establish that the Respondent entered into a valid contract of sale and that any consideration was paid in respect of same.
47.The purported sale transaction took place after the making of the First Orders and with the Respondent knowing the terms of those orders.
48.Respectfully, the breach of the First Order is so serious that it is a flagrant challenge to the authority of the Court.
The Third Count
49.In early 2022, the Respondent received the sum of 1,686,009 [Country H currency]
50.In early 2022, the Respondent purportedly lent the sum of 1,500,000 [Country H currency] to [Mr Q].
51. Order 3 of the Second Orders states the following:
3.The husband is permitted to operate upon any bank account in his name for the following purposes which operations are excluded from the restraint in Order 2:
(i)Meeting his day to day living expenses and those of the children in the usual course;
(ii)Making any required repayments in respect of the debts owed by him to the [D Bank] and the [E Bank];
(iii)Meeting other necessary expenses in relation to the property at [B Street Suburb C]; and
(iv)Making any required payments for his legal fees and disbursements in respect of these proceedings.
52. Order 3 does not permit the Respondent to lend funds to a friend.
53.The transfer of the funds took place after the making of the Second Orders and with the Respondent knowing the terms of those orders.
54.Respectfully, the breach of the Second Order is so serious that it is a flagrant challenge to the authority of the Court.
(As per the original) (Emphasis in original)
The Court adopts these submissions and is satisfied that the evidence adduced by the wife in relation to each of the three counts establishes those counts to the requisite level. The husband was aware of the terms of the orders made. The Court is satisfied that he acted deliberately, and contrary to the terms of those orders. There is a strong inference that he had acted intentionally and an alternative hypothesis that it was anything else is not available on the evidence. Such acts constitute a flagrant challenge to the authority of the Court.
The orders sought by the wife in relation to the contempt application are as follows:
1.The Husband is committed to prison, to be held in prison until he purges his contempt, with such sentence to commence immediately.
2.A warrant of commitment reflecting the order of this Court is to issue forthwith.
3.Further, and in the alternative, the proceedings insofar as the Respondent’s applications are concerned be stayed until he purges his contempt.
During submissions counsel for the wife acknowledged that the husband was not in Australia, and probably would not return to Australia. Thus actual commitment to prison, for example, might be more theoretical than real. Nonetheless, if a finding of contempt was made the fact that the husband might not return to Australia should not prevent the Court from acting within its powers and enforcing its orders. Counsel also submitted that the fact of the contempt finding might be of assistance to the wife should the husband seek to participate in the proceedings at a later time, for whatever reason. The Court accepts these submissions.
The Court was referred to no power available to it to stay all (or any) of the husband’s applications before the Court until he purges his contempt. Unpurged contempt will, however, be a discretionary issue relevant before the Court grants any relief the husband seeks.
The Court is satisfied to the requisite standard that the husband has flagrantly challenged the authority of the Court by wilfully acting contrary to the orders made, as referred to in the contempt application.
The husband is committed to prison for six months. This reflects the gravity of his actions and their highly disadvantageous effect on the wife. Before the Court there is no evidence of remorse. Indeed, the time between the transactions referred to above and the correspondence from those representing the wife suggest a level of calculation on the part of the husband that is quite inconsistent with remorse.
The issue of the warrant of commitment will be stayed for 28 days to give the husband the opportunity to purge his contempt.
The solicitors for the wife are to notify the husband of these orders within seven days in accordance with the orders for substituted service dated 2 September 2022.
The Anti-Suit Injunction
The order sought by the wife in this regard is order 14 of her minute of order:
14.The Husband be and is hereby restrained from prosecuting, maintaining or continuing any legal proceedings against the Wife, or any person acting as her agent, in any foreign jurisdictions, including but not limited to [City K] and [Country F], with respect to any financial, property or parenting matters (in connection with their marriage), except to cause any such legal proceedings in those jurisdictions to be dismissed or withdrawn.
The applicable law is correctly set out at paragraph 24 of the wife’s case outline:
24.The Court is respectfully reminded of the Full Court decision of In Kent & Kent [2017] FamCAFC 157; (2017) FLC 93-792, which stated at 77,515 at [31]:
31.In his written outline before the primary judge at [6.1], Senior Counsel for the husband outlined what he called the “non-exhaustive list” of “relevant matters to be considered [as] set out in ... Henry at 592-3”. Senior Counsel’s “non-exhaustive list” repeated verbatim a summary that O’Reilly J extracted from Henry in Whung v Whung and Ors. We respectfully adopt what her Honour there said as an accurate and convenient summary of the non-exhaustive list of some of “the matters properly to be taken into account” when considering whether Australia is a “clearly inappropriate forum”:
1.No question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage.
2.If both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done.
3.It will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy.
4.Other considerations include the order in which the proceedings were instituted.
5.Other considerations include the stage which the proceedings have reached.
6.Other considerations including the costs that have been incurred.
7.It will be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions.
8.It will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing.
9.It will be relevant to consider “the general circumstances of the case”, taking into account “the true nature and full extent of the issues involved.”
(Emphasis in original)(Citations omitted)
17.The Full Court in Obannon & Scarffe [2021] FamCAFC 33; (2021) FLC 94-009 at [100]–[101] stated:
The principles to be applied in determining forum non conveniens are well settled. They are set down by the High Court of Australia in Oceanic Sun Line Special Shipping Co Inc v Fay and Voth v Manildra Flour Mills Pty Ltd as explained in the context of family law litigation in Henry Whether or not Australia is a clearly inappropriate forum depends on an assessment of the following non-exhaustive factors (derived from Lord Goth’s factors in Spiliada) as approved of in Voth and as added to by Henry (at 592–593):
a) Factors of convenience and expense, such as the location of witnesses;
b) Whether, having regard to their resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing;
c) The connection of the parties and their marriage with each of the potential jurisdictions and the issues on which relief may depend in those jurisdictions;
d) Whether the other potential forum will recognise Australian orders and vice-versa and the ease of enforcement in each country;
e) Which forum may provide more effectively for a complete resolution of the matters involved in the parties’ controversy;
f) The order in which each of the proceedings were instituted, the stage which they have reached and the costs incurred in each jurisdiction;
g) The governing law of the dispute;
h) The place of residence of the parties;
i) The availability of an alternative forum; and
j)Any legitimate juridical advantage to litigating in either jurisdiction.
(As per the original) (Emphasis in original)
The evidence indicates that the wife commenced the property proceedings first in time in Australia, on 21 May 2021. The husband in fact commenced parenting proceedings first in time, again in Australia, even though he was not living in Australia at the time.
The proceedings initiated by the husband in both City K and Country F on or about mid-2022, doing the best the Court can, seem to relate to divorce only. The wife does not know, however, whether there are consequences on her financial and parenting proceedings in Australia if the divorce proceedings continue in City K and Country F.
On behalf of the wife it was submitted that the commencement of proceedings by the husband in two separate jurisdictions creates the inference that he was seeking to usurp the authority of this Court and gain some form of forensic or tactical advantage.
The Court is satisfied that it has jurisdiction in relation to all controversies pertaining to this family including divorce, parenting and property proceedings. The only exception, however, is in relation to the son who is living with the husband (presumably in the Country H). It is quite possible, however, that the courts of both City K and Country F likewise consider that they have jurisdiction. The determination of whether Australia is, or is not, a clearly inappropriate forum to determine these issues must have regard to the specific issues.
In relation to the parenting aspect, this Court’s jurisdiction is limited to children under the age of 18 years. On the facts of this case this means Y aged 16, X aged 16, and Z aged 12. Only one of these children, Y, lives with the husband. The remaining minor children live with the wife in Australia. The Court is satisfied that in relation to the minor children present in Australia, this Court is not a clearly inappropriate forum and thus the anti-suit injunction will be made against the husband in this regard.
In relation to the divorce proceedings it is possible that the orders sought by the husband, which appear to be under cultural law, may not be recognised in Australia and this is a factor leaning towards the making of an anti-suit injunction in this regard.
In relation to the property proceedings the complexity arises in that so much of the property claimed by the wife in the present proceedings against the husband is not in Australia, and whilst this does not prevent this Court from making orders in relation to that property, enforcement is likely to be rendered much more complex but not necessarily futile. In circumstances where the Court has found the husband to be in contempt, and where he appears to exclusively control all of the assets, the Court exercises its discretion to grant the anti-suit injunction as sought.
All of these injunctions will be interim orders only.
The Appointment of a Litigation Guardian
The order sought by the wife in this regard is set out at order 19 of her proposed minute of order:
19.Orders are made directing the Attorney-General to appoint, in writing, a person to be the manager of the affairs of the Fourth Respondent for the purpose of these proceedings, in accordance with the Minutes of Consent Orders signed by the Husband and the Wife on 2 March 2022 and forwarded to [Judicial Registrar] by email on 3 March 2022.
The fourth respondent referred to in the order is the husband and wife’s child, Y aged 16 who, on the evidence, engaged with the husband in the transactions relating to real estate that is referred to in the first count of the contempt proceedings. The Court has already found that this count was established. In order to have this transaction set aside, the wife is concerned that a litigation guardian needs to be appointed for Y.
The Court does not agree. The relevant provisions are found in Part 3.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
Y is not in Australia and there was no suggestion on the wife’s case that the child would return to Australia, at least before he turns 18 in just over one year. There is no evidence going to r 3.12(1) of the Rules:
3.12 Person who needs a litigation guardian
(1)For these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a)does not understand the nature and possible consequences or the proceeding; or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
Rule 3.12(2) states:
(2)Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
There is formidable impracticality inherent in appointing a litigation guardian for a child outside of Australia, and one doubts if that was the intention of the rule, especially in this case where the child’s minority will soon end.
Moreover, there is force in the submissions of counsel for the wife to the effect that the child, by participating in this transaction was either acting as the alter ego of the husband, or had an interest clearly aligned with the husband. In the circumstances, the rationale for the appointment of a litigation guardian is absent. For the purposes of r 3.12(2) the Court orders that Y aged 16 years is not in need of a litigation guardian. The proceedings against him may continue in the normal course.
I certify that the preceding thirty-three (33) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 29 September 2022
Schedule A
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) FILE NO: (P)PAC2751/2021 BETWEEN:
MS ZAMIR (Applicant)
AND:
MR ZAMIR (First Respondent)
AND:
MS R ZAMIR (Second Respondent)AND:
J PTY LTD (Third Respondent)
AND:
Y (Fourth Respondent)BEFORE: THE HONOURABLE JUSTICE ALTOBELLI
DATE: 20 September 2022
MADE AT: SYDNEY via videoconference
UPON APPLICATION MADE TO THE COURT by Mr Fermanis of counsel appearing on behalf of the Applicant, no appearance on behalf of the First, Second, Third, and Fourth Respondents, and Mr T, solicitor appearing on behalf of the interested party, D Bank –
THE COURT ORDERS THAT:
1.Orders are made in accordance with the document marked “A”, dated this day and attached hereto.
2. Judgment is otherwise reserved in respect of the issues of:
a. The anti-suit injunction sought by the Applicant against the First Respondent;
b. The contempt application filed by the Applicant on 22 July 2022; and
c.The litigation guardian order sought by the Applicant in respect of the Fourth Respondent.
Listing and Trial Directions
3.The directions hearing listed before a Judicial Registrar on 30 September 2022 is vacated.
4.The matter is listed for undefended final hearing on 8 December 2022 at 10am, with an estimated hearing time of one day.
5.By no later than 4pm on 11 November 2022, the Applicant file and serve any updating evidence by way of affidavit.
6.By no later than 4pm on 11 November 2022, each party is to file and serve an updated financial statement.
7.Leave is granted to the Applicant to rely on her existing affidavits subject to her case outline containing specific references to the paragraphs in each affidavit that are read in her case.
8.By no later than 4pm on 11 November 2022, the Applicant is to file and serve a minute of proposed final order sought by her.
9.By no later than 4pm on 25 November 2022, the Respondents file and serve any Response to Initiating Application and/or affidavit sought to be relied upon.
10.By no later than 4pm on 1 December 2022, each party is to file and serve a Case Outline document, setting out:
a. a list of documents to be read in their case;
b. a precise Minute of Orders Sought;
c.a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
Service
11. The Applicant serve a copy of these orders on:
a.The First Respondent in accordance with the orders for substituted service made on 2 September 2022;
b.The Second and Third Respondents in accordance with the orders made on 24 December 2021; and
c.The Fourth Respondent in accordance with the document marked “A” and attached hereto.
THE COURT NOTES THAT:
A.D Bank neither consents to nor objects to the making of Orders 4–12, 20(b), 21 and 22 of the document marked “A”, and agrees to abide by the orders made by the Court.
B.Orders 6, 8–13 and 20 of the document marked “A” are made against the First Respondent on an undefended basis.
“A”
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT PARRAMATTA FILE NO. 2751/2021BETWEEN MS ZAMIR
(Applicant Wife / Mother)
AND MR ZAMIR
(First Respondent Husband / Father)
AND OTHERS
(Second, Third and Fourth Respondents)
DRAFT WIFE’S PROPOSED SHORT MINUTES OF ORDER
Interim Hearing: 20 September 2022CONTEMPT APPLICATION
1. Not made.
2. Not made.
3. Not made.
APPLICATION IN A PROCEEDING FILED 10 AUGUST 2022
Leave to Mortgagee to Appear4.Leave is granted to D Bank (“D Bank”) to appear as an interested party.
5.The Court notes that D Bank neither consents to, or objects to, these orders being made. However, D Bank agrees to abide the order of the Court.
Arrears, Loan Repayments & Outgoings
6.Forthwith, and until settlement of the sale of the former matrimonial home at B Street, Suburb C, New South Wales (Certificate of Title Folio Identifier: …) (“Suburb C Property”) pursuant to Orders 7 to 11 below, the Respondent Husband (“Husband”) is to do all acts and things and make all payments necessary to:
(a)Bring out of arrears, and remedy any default in respect of, the home loan with D Bank (Loan Account No. … 00) (“D Bank Home Loan”) secured by way of mortgage – (“Mortgage”) over the Suburb C Property;
(b)Meet all repayments on the D Bank Home Loan as and when they fall due;
(c)Meet all outgoings in relation to the Suburb C Property including, but not limited to, council rates, water rates and charges as and when they fall due.
7.On the basis that the Court orders the sale of the Suburb C Property, the Court notes the agreement of D Bank that for a period of six months from the date of this Order, D Bank will refrain from taking the following enforcement action pursuant to the Mortgage:
(a)Taking possession of the Suburb C Property; or
(b)Commencing Court proceedings in respect of the Husband’s default in relation to the D Bank Home Loan and/or the Mortgage; or
(c)Exercising any power of sale or foreclosure in respect of the Mortgage secured over the Suburb C Property.
8. D Bank's agreement in Order 7 above is conditional upon:
(a)the Wife or Husband arranging satisfactory insurance for the Suburb C Property (with D Bank's interest noted as mortgagee);
(b)the Wife taking all reasonable steps to achieve a sale of the Suburb C Property at market value, on an arms-length basis, within the period of six months from the date of this Order;
(c)D Bank's solicitors receiving monthly updates from the Wife to confirm that the Suburb C Property is being marketed for sale; and
(d)there not being any unforeseen circumstances which in the opinion of D Bank (acting reasonably) gives rise to an urgent need for D Bank to exercise its rights under the Mortgage within the six month period referred to above. Should such a circumstance arise, D Bank will give 7 days' notice to the Wife of D Bank's intention to exercise its rights under the Mortgage.
Appointment of Trustee for Sale
9.Forthwith, the Wife is appointed pursuant to section 80(1)(e) and/or section 80(1)(k) of the Family Law Act 1975 ("Act") as Trustee for sale of the Suburb C Property and that the Suburb C Property vest in the Wife for the purposes of the sale (subject only to the rightful interests of D Bank as priority interest holder [which interests the Wife does not seek to disturb save and except for the agreement noted in Orders 7 to 8 above]).
10.Without limiting the Wife’s powers under the terms of Order 9 above, the Wife is empowered to do all things, including signing all documents necessary to effect a sale of the Suburb C Property including but not limited to:
(a)Determining whether the sale be by private treaty or auction;
(b)Nominating a real estate agent to act on the sale;
(c)Nominating a solicitor or conveyancer to act on the sale; and
(d)Determining the listing price from time to time, or the reserve price in the event of sale by auction.
(e)Transferring of the title, subject to the Mortgage, of the Suburb C Property from the Husband’s name into her name in her capacity the Trustee appointed in accordance with Order 9 hereof.
Save an except to give effect to Order 10(e) hereof, the Wife be and is hereby restrained from transferring title of the Suburb C Property to any person without the written consent of D Bank, order of the Court or to give effect to Order 11 below (subject to the rights of the D Bank in accordance with the terms and conditions of the D Bank Home Loan and the Mortgage).
11.On completion of the sale of the Suburb C Property (which is to occur within six months of the date of this Order), the proceeds of sale are to be applied in the following manner and priority:
(a)In payment of all amounts owing under the D Bank Home Loan and Mortgage (which amounts are continuing to accrue on account of interest, reasonable enforcement costs and any other amounts payable under the loan agreement for the D Bank Home Loan and Mortgage);
(b)In payment of the usual adjustments as between purchaser and vendor, including council and water rates and charges;
(c)In payment of all costs and expenses of sale including legal costs and disbursements, agent’s commission and advertising fees and auction expenses; and
(d)In payment of $600,000 to the Wife by way of interim distribution of property; and
(e)The remaining balance to be held in the Trust Account or a Controlled Money Account held by the Wife’s solicitor or the solicitor or conveyancer acting on the sale of the Suburb C Property pending further Order.
For the avoidance of any doubt, D Bank is not required to discharge its Mortgage over the Suburb C Property unless all amounts owing under the D Bank Home Loan and Mortgage are paid in full.
12.In the event that the Husband defaults in his obligations pursuant to Order 6 above and provided that the Wife’s financial circumstances permit her to do so, the Wife shall pay any outstanding statutory charges, such as council and water rates for the Suburb C Property, and the Wife shall be entitled to reimbursement of any such payments from the net proceeds of sale of the Suburb C Property in addition to the interim distribution payable to the Wife pursuant to Order 11(d) above.
13.In the event that the Husband refuses or neglects to do any act or thing or sign any document necessary to give effect to these Orders, a Judicial Registrar of the Federal Circuit and Family Court of Australia at Parramatta shall be appointed pursuant to section 106A of the Act to do any such act or thing or sign any document necessary to give effect to these Orders at the cost of the Husband.
Anti-Suit Injunction
14. Not made.
Final Hearing
15. The substantive proceeding be set down for undefended final hearing.
16. Not made.
APPLICATION IN A PROCEEDING FILED 24 DECEMBER 2021
17.Personal service on the Fourth Respondent of the Applicant’s Amended Initiating Application and the supporting documents filed 15 December 2021 (“Applicant’s Court Documents”) is dispended with.
18.By way of substituted service, within 7 days, the Wife is to cause the Fourth Respondent to be served with the Applicant’s Court Documents by emailing them to the First Respondent at the following email address ... and forwarding them by international standard post to U Street, V Park, City K, Country H.
LITIGATION GUARDIAN
19. Not made.
PROCEDURAL ORDERS
20. The Husband pay:
(a)Not made.
(b)The Wife’s and/or D Bank’s costs of and incidental to the Application in a Proceeding filed 10 August 2022.
21.Order 20(b) does not prejudice any entitlement of D Bank to recover any reasonable enforcement costs or other amounts in accordance with the terms of the loan agreement for the D Bank Home Loan and/or Mortgage.
22.The Court orders that D Bank must, upon request and within 7 days, disclose the balance of the D Bank Home Loan to the Wife to the extent it is required by the Wife for the purposes of effecting a sale of the Suburb C Property pursuant to this Order.
23. Not made.
Schedule B
CHRONOLOGY
All paragraph references are taken from the Affidavit of Ms Zamir filed 10 August 2022 unless otherwise stated.
1976 Date of birth of Husband. Para 6 1976 Date of birth of Wife. Para 4 1986 Wife immigrates to Australia. Para 5 1997 Parties marry in Country F. Para 8 1998 Husband arrives in Australia on spousal visa and parties commence cohabitation. Para 10 1999 Date of birth of Ms BB. Para 11(a) 2000 Date of birth of Ms AA. Para 11(b) 2004 Husband accepts job offer at W Company in Country F and parties migrate to City O, Country F. Para 29 Early 2005 Husband accepts job offer at E Bank and the family migrates to Country H. Para 33 2005 Date of birth of Y. Para 11(c) 2005 Date of birth of X. Para 11(d) 2006-2009 Wife claims parties separate on multiple occasions due to Husband's infidelity. Para 35 Late 2009 Wife ceases employment. Para 37 2010 Date of birth of Z. Para 11(e) 2012 Wife claims parties build house in CC Town, Country F, on land that is gifted to the Husband by the Husband’s father, spending approx. AUD$1 mil from funds held in accounts in the Husband’s name. Para 44 2012 Husband’s father gifts Husband with apartment at Suburb P, City O, Country F. Apartment is registered in Husband’s name and renovations are carried out during the course of the marriage. Para 66 2019 Husband and Wife have discussions regarding Husband’s Will in the presence of the children. Para 55 2015 Parties purchase matrimonial home at Suburb C in Husband’s sole name contributing AUD$480,000 from funds held in accounts in Husband’s name and remaining AUD$1,920,000 is mortgaged to D Bank. Para 57 2015 Husband opens Term Deposits with DD Bank in Country F in Y’s name. Para 67 2018 Wife asserts D Bank Home Loan is either paid off or close to being paid off from funds held in accounts in Husband’s name. Para 60 2018 Parties purchase apartment in Suburb N, City O, Country F, for approx. USD$350,000 in Husband’s sole name. Husband takes out personal loans with E Bank for the purchase of the apartment. Para 61 2019 Husband appoints Wife Power of Attorney to access Term Deposits. Para 68 2019 Approx. USD$960,000 is transferred from Husband’s accounts with DD Bank to accounts held in Y’s name. Para 71 2019 Parties go on holiday to Country G. Parties discuss purchasing holiday home in Country G. Para 76-79 17.2.2020 Parties separate on a final basis. Wife returns to Australia and resides in the Suburb C Property. Para 12 & 86 Early 2020 Children returned to Australia. Para 86 2020 Husband sends Wife regular monthly allowance of AUD$10,000. Para 87 Late 2020 Y and X return to City K. Para 88 Late 2020 Husband reduces Wife’s monthly allowance. Para 89 Late 2020 Husband informs Wife that he had purchased a unit in City GG for about USD$300,000, which he registered in the name of his sister, Ms R Zamir. Para 81-83 Late 2020 Husband redraws AUD$1,879,000 from the D Bank Home Loan secured over the Suburb C Property without Wife’s knowledge or consent. Para 106, Exhibit Z-7 Early 2021 Husband enters into Contract for sale of apartment in Suburb N Apartment with Y, without Wife’s knowledge or consent. Para 112, Exhibit Z-8 21.5.2020 Wife files Initiating Application and Application in a Case seeking, inter alia, an urgent ex parte injunction restraining the Husband from encumbering, transferring or otherwise disposing of his interest in the Suburb C property held in his sole name. 3.6.2021 Senior Registrar grants injunctions sought by the Wife that restrain Husband from transferring, encumbering Suburb C property; from withdrawing or transferring from any available redraw facility, line of credit or home loan account held in his sole name. Para 104 8.6.2020 Husband’s lawyers, FF Lawyers, filed Notice of Address for Service. Mid-2021 Husband cuts off Wife’s monthly allowance. Husband sends Wife $2,500 per month by way of informal child support for Amber only. Para 102 Mid-2021 Wife becomes aware that Husband redrew AUD$1,879,000 from the D Bank Home Loan secured over the Suburb C Property without Wife’s knowledge or consent. Para 106 Mid-2021 Husband transfers AUD$1,899.830.97 to an account held in the name of his sister, Ms R Zamir, without Wife’s knowledge or consent. Husband asserts these funds were transferred to Ms R Zamir to be donated to her company, J Pty Ltd. Para 107, Exhibit Z-7 Mid-2021 Husband transfers total USD$449,728.29 to an account held in the name of his sister, Ms R Zamir, without Wife’s knowledge or consent. Para 108, Exhibit Z-7 2.8.2021 Upon the Wife’s application to the Court, Senior Registrar expands Orders of 3 June 2021 to include worldwide injunctions restraining Husband from disposing of, dealing with or diminishing the value of any assets held within or outside of Australia over which the Husband has the power to dispose, whether or not held in his name or in the name or control of a third party. Senior Registrar also orders repayment of funds redrawn by the Husband. Para 110 Mid-2021 Ownership of Suburb N Apartment is transferred by Husband to Y without Wife’s knowledge or consent. Para 112, Exhibit Z-8 Mid-2021 Ownership of Suburb P is transferred by Husband to his mother, Ms S, without Wife’s knowledge or consent. Para 113, Exhibit Z-9 2.9.2021 Upon the Husband’s application to the Court, Orders of Senior Registrar are reviewed by Justice Hannam. Her Honour sets aside order for repayment of the funds redrawn by the Husband and caries injunctions to include a “carve-out” permitting Husband to access funds to meet certain expenses. Para 111 15.12.2021 Wife files an Amended Initiating Application joining Ms R Zamir, J Pty Ltd and Y to proceedings and seeking to set aside transfers of funds together with declaratory and tracing orders. Wife files Application in a Proceeding seeking, inter alia, urgent ex parte orders and injunctions against Ms R Zamir, J Pty Ltd and Y. Para 114 23.12.2021 Senior Judicial Registrar makes Orders and injunctions on an urgent ex parte basis against Ms R Zamir, J Pty Ltd and Y. 24.1.2022 Senior Judicial Registrar extends injunctive Orders by consent of the parties until further Order. Early 2022 Husband receives bonus in the amount of approximately AUD$659,000. Para 116, Exhibit Z-16 Early 2022 Husband withdraws AUD$586,000 from his account by cheque and a further cash amount of approximately AUD$14,000. Para 116, Exhibit Z-16 Early 2022 Husband ceases making repayments on the D Bank Home Loan. Para 121, Exhibit Z-14 Mid-2022 Husband informed Wife he has commenced proceedings against her in City K and Country F. Para 148 Mid-2022 Wife receives email from City K Judicial Department pertaining to Court proceedings in City K. Para 149, Exhibit Z-20 Mid-2022 Husband discloses loan to “friend” in the amount of $580,000 from his bonus. Para 116, Exhibit Z-10 Mid-2022 Parties attend Mediation. Mediation is unsuccessful. Para 119 Mid-2022 Default Notice is issued by Westpac on Husband regarding D Bank Home Loan. Para 124, Exhibit Z-14 13.7.2022 FF Lawyers file Notice of Ceasing to Act on behalf of Husband. Husband ceases to engage in proceedings. Para 127 14.7.2022 Wife files Subpoena to Westpac to produce statements/default notices in relation to D Bank Home Loan. Upon review of Subpoena material, Wife becomes aware the D Bank Home Loan is in default. Para 124 22.7.2022 Wife files Application – Contempt against Husband. Mid-2022 Wife attends Consulate General in Country F and collects legal documents served on her by Husband from the court in Country F. Para 152, Exhibit Z-22 10.8.2022 Wife files Application in a Proceeding seeking, inter alia, sale of Suburb C Property, interim property distribution and anti-suit injunctions. Late 2022 X returns to Australia to reside with the Wife. 20.9.2022 Interim Hearing before the Honourable Justice Altobelli. Late 2022 Hearing listed for proceedings in Country F. Should Wife fail to attend, warrant may be issued for her arrest. Para 152, Exhibit Z-22
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