R v Ross-Jones; Ex parte Green

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Final property orders were made in this matter on 3 May 2024, ordering the husband to pay to the wife sums of $232,422 and $1,354,200 within 30 days. Of those amounts, $273,633 was paid from monies then held in the wife's solicitor's trust account. Otherwise, the order has not been complied with.
2. On 17 September 2024 the husband was ordered to pay to the wife's costs in the sum of $106,726.52, to be paid within three months. The order has not been complied with.
3. The above orders were made in circumstances where the husband had disengaged from the proceedings and each matter was dealt with on an undefended basis, in his absence. They leave the husband with a significant liability to the wife.
4. At trial it was determined that the husband perpetrated "persistent and serious family violence" upon the wife. It was further determined that the wife's description that she was and is terrified of the husband was reasonable. This forms a background to the manner and form of the wife's current application.
5. The wife has a Family Violence Order in her favour, protecting both herself and one of the children of the relationship, that is in place until 2034, directed to the husband.

1. The wife now seeks ex parte orders to facilitate the enforcement of the previous orders. She seeks the appointment of a receiver for both the husband and a corporation, B Pty Ltd (B Pty Ltd), of which he is the sole director and shareholder. In the primary proceedings B Pty Ltd was identified as a source of significant financial resource for the husband, able to be dealt with by him under his sole control and direction.
2. Although the orders sought provided for the receiver to take control of the finances of both the husband and B Pty Ltd, at first instance the wife seeks the appointment of the receiver for the purpose of preparing a report as to the financial circumstances of the husband and B Pty Ltd for the purpose of recovering the owed monies, and for a restraint upon the husband from dealing with the property of either himself or in B Pty Ltd, save for ordinary living expenses and the daily operation of B Pty Ltd. Allowing 30 days for the receiver to prepare a report, the wife then seeks that the matter be relisted before the court.
3. Rules 11.48 and 11.49 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide as follows:

11.48 Application for appointment of receiver

(1) A payee may apply for an enforcement order appointing a receiver of the payer's income or property by filing an Application--Enforcement and an affidavit.

(2) The affidavit must:

(a) comply with rule 11.06; and

(b) include the full name and address of the proposed receiver; and

(c) include details of the receiver's fees; and

(d) have attached to it the consent to the appointment of receiver, signed by the proposed receiver.

(3) The court may hear an application under subrule (1) in chambers, in the absence of the parties, on the documents filed.

Note: For the hearing of an application in the absence of the parties, see Part 5.3.

(1) In considering an application under subrule 11.48(1), the court must have regard to:

(a) the amount of the debt; and

(b) the amount likely to be obtained by the receiver; and

(c) the probable costs of appointing and paying a receiver.

(2) When appointing a receiver, the court must make orders about:

(a) the receiver's remuneration (if any); and

(b) the security (if any) to be given by the receiver; and

(c) the powers of the receiver; and

(d) the parties to whom, and the intervals or dates at which, the receiver is to submit accounts.

(3) The court may authorise a receiver to do (in the receiver's name or otherwise) anything the payer may do.

(4) The receiver's powers operate to the exclusion of a payer's powers during the receivership.

(5) The court may, on application by an interested person, make procedural orders about the powers of the receiver.

Note: For rules relating to the enforcement of obligations other than an obligation to pay money, see Division 11.1.7.

1. It may be observed that the receiver's powers, whatever their extent, operate in this case to the exclusion of either the husband's or B Pty Ltd's powers, to the extent of the appointment.

1. The wife proposes that a Mr L be appointed as the receiver. The wife's solicitor gave evidence as to her contact with Mr L as follows:

(a) Mr L estimated that the cost of a report into the finances of the husband and B Pty Ltd would be in the vicinity of $15,000;

(b) Mr L nominated that his renumeration could come from the assets of the company or the husband; and

(c) in the event that there were no assets held by B Pty Ltd or the husband, Mr L was content to proceed as long as there was an order made in respect of his remuneration, as this would become an enforceable debt.

1. The restraint proposed is in the following terms:

Pursuant to section 114(e) of the Family Law Act 1975 (Cth), the Respondent is restrained by force of injunction from disposing of, transferring, encumbering or otherwise altering the property held by him either personally or in [B Pty Ltd] except for payment of normal operating expenses in the operation of [B Pty Ltd].

1. It is a restraint pursued in the context that the husband is the sole director and shareholder and, during the substantive proceedings, appeared to have an ability to draw upon B Pty Ltd to meet his personal expenditure. The reach of this order into B Pty Ltd is somewhat unclear, in its reference to "property held by him...in [B Pty Ltd]." While B Pty Ltd may hold property, what is held by the husband are the shares in [B Pty Ltd], which is not the same thing as a direct right to the property of [B Pty Ltd].

1. The wife was permitted to argue the application, in the first instance, on an ex parte basis without placing the husband on notice, in the context of the history of serious family violence. That history of family violence, in the further context of significant non-compliance with orders, explains why the application was made in such a manner.
2. However, the circumstances identified to the court were not such as to require that the relief in respect of the receiver be granted on an ex parte basis, for example, in order to preserve the subject matter of the dispute pending hearing from the husband. It is unclear that the orders to appoint a receiver to report would provide any such protection, particularly once the husband became aware of the appointment for that purpose, and particularly given their limitation in the first instance to merely reporting.
3. Further, at present, a basis for the appointment of a receiver of B Pty Ltd is not established. Despite the husband having control of B Pty Ltd, B Pty Ltd was a stranger to the litigation, and so enforcement against B Pty Ltd directly, as opposed to as an aspect of enforcement against the husband, would require further justification, and may fall foul of authorities such as R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185.
4. Although the default of the husband appears plain, the appointment of a receiver should not occur without the husband being first afforded the opportunity to be heard.
5. As to the further restraints, the nature of the ongoing default and the withdrawals described by the wife, undertaken by the husband following the wife's issuing of subpoenas in the substantive matter, in excess of $1.4 M in a short period of time, point to the appropriateness of injunctive relief directed to the husband pending further hearing. However, the case for the extension of that relief to what may be held by B Pty Ltd is not at present clear.
6. The wife has indicated difficulties in effecting personal service upon the husband, particularly in circumstances where he has exhibited violence. The wife should be permitted to effect service by ordinary service upon the registered address for B Pty Ltd (G Street Suburb H), the home address identified by the wife as set out in a Notice of Ceasing to Act filed by previous lawyers for the husband (J Street Suburb K), and the email address used by the husband in the substantive proceedings (...@...).

1. Orders will be made for service of the husband of the wife's application, supporting material and these orders and reasons, with a return date for further hearing on 5 November 2025 at 10:00AM.
2. Orders will be made to permit the application to be served by ordinary service.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.