[2014] FamCA 622

Family Law Act 1975 (Cth)

Mullen v De Bry [2006] FamCA 1380, (2006) FLC 93-293

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit "A" sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.
2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.
3. That until the return date referred to below, the husband, by himself, his servants and agents, is restrained from selling, transferring, encumbering (or further encumbering), disposing of or otherwise dealing with:
   • (a) Any real property;
   • (b) Any motor vehicle;
   • (c) Any aeroplane; and
   • (d) Any business,

without giving the wife 7 days prior written notice through her lawyers.

1. That all extant interim applications are otherwise adjourned to 10.00am on 14 August 2014.
2. That all parties have liberty to apply on short notice.

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

1. This is a very discrete issue in which there is no dispute that an injunction was granted by the court on 30 September 2013 in relation to the husband's activities associated with the assets of the parties or either of them, including, no doubt, various corporate entities and trusts with which they have some control or connection. That injunction restrained the husband from disposing of those assets except in the ordinary course of business.
2. The wife's position today, which is clearly set out in her application filed on 25 June, and supported by the affidavit material that she filed, is that she now wants to vary that order to specifically identify real property, any motor vehicles, any aeroplanes, and otherwise all businesses on the basis that she be given seven days notice prior to any sale which would be in the ordinary course of business.
3. She supports that by paragraph 108 of the affidavit, which does not directly relate to the issue of the sale of assets, but rather indicates that the husband is, to use the expression that was used earlier this morning, now showing a change of attitude in relation to discovery. Whether that is right or not is a matter that I need not make any determination about today and whether, indeed, the compliance with the production of documents is, in accordance with the orders is also a matter that I do not need to make any determination about today.
4. It is quite clear, however, that there has been an ongoing dispute about what the parties do or do not want to sell and there can be no better indication of that than in the orders proposed by the husband. The husband is indicating that he wants to sell various assets for specific prices. Ms Williams for the husband properly concedes there is no specific evidence before me in relation to those sales. It is asserted by counsel for the wife that if a valuation has been provided, the wife does not necessarily agree with it.
5. There is clearly a lot of controversy about these matters and as is well-known I cannot determine matters on the basis of evidence that is controversial in this application. The wife wants to rely on her affidavit material and the husband wants to respond to that affidavit material so that the court can have a better opportunity to understand the situation. For that reason the matter is being adjourned to 11 August. The wife's position is therefore that she wants a holding order.
6. The power to make an order of an injunctive nature lies in section 114 of the Act. The Act simply says that for the court to make the order it must be satisfied that it is proper to do so. The Full Court of this Court in cases such as Mullen v De Bry [2006] FamCA 1380, (2006) FLC 93-293 has referred to the question of whether or not there is objective evidence of a danger of the alteration of the assets in some way affecting the jurisdiction of the court particularly by a party defeating the court's process.
7. I am not at all clear on what the husband's position is here and having regard to the fact that I have been managing this case and constantly being involved in arguments about discovery, I think it is fair to say that it is unclear what the husband is doing and that therefore the wife has some justification for her concern. The wife's position is akin to a holding order which is not necessarily injunctive in nature, so much as protective in nature. Section 114 empowers the Court to make a protective order as well as an injunctive order.
8. The order that the wife seeks simply requires the husband to give notice if he is exercising what is currently his right under the injunction in September 2013 by operating within the normal course of his business. I fail to see how that is of any inconvenience to the husband. The husband's position through his counsel is that the husband will be commercially prejudiced if he has to give seven days notice. I find that hard to understand, but even if it is possible that a commercial arrangement needs to be entered into within the seven day period, I will make a liberty to apply clause on short notice.
9. As I had indicated in discussion, there are judges of this court sitting every day of the week, including on the weekends. We run an after-hours service which commences at 4.30 pm every day of the year, including public holidays and special days, so it is hard to see how something of this nature could not be brought on very short notice. It seems to me, therefore, that it is proper to make an order in the terms that the wife seeks in which the husband has to give seven days notice in respect of those precise assets.
10. To the extent that there is any concern by the husband about his prejudice he can exercise the liberty to apply provisions.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 July 2014.