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Wife Seeks to Restrain Husband from Dealing with their Assets

Cirillo & Cirillo [2021] FedCFamC1A 45 (2 November 2021)

The primary judge dismissed the wife’s application for injunctive orders seeking to restrain the husband from dealing with the parties’ assets.  The wife then sought leave to appeal.  The Court, in deciding whether or not to grant the same, considered how the orders preserved the assets of the parties and how s 91 of the Evidence Act 1995 (Cth) is not a prohibition on the admission into evidence of a judgment in other proceedings. 

Facts:

The husband and the wife married in 1975 and separated in 2020.  The net value of their asset pools is agreed to be not less than $90 million.  The husband and the wife both seek an equal division of the asset pool.  With the exception of the former matrimonial home, which is jointly owned, the husband has the sole control of the assets of the marriage.  The substantial portion of those assets is held in three trusts which are controlled by the husband.

B Pty Limited as trustee of the D Trust owns four commercial properties, LL Property, MM Property, PP Property and QQ Property.  The sale of one of those commercial properties, LL Property for $78.1 million, was pending and is now subject to a contract for sale dated 24 September 2021.  B Properties Pty Limited is the trustee of the D Investment Trust and owns property in Country H.  F Pty Limited is the trustee of the Cirillo Family Trust (No. 2) and owns the FF Property. 

The husband owns real properties in Country H and also has businesses in Country H.  Since the making of the orders was the subject of the appeal, further orders have been made in the primary proceedings.  On 14 September 2021 and 27 September 2021, the wife filed further Applications in a proceeding seeking freezing orders against the proceeds of sale of LL Property, settlement being anticipated to occur on 30 November 2021.  

On 1 October 2021, Aldridge J made orders joining B Pty Ltd in the proceedings as the second respondent.  The husband is to provide the wife the contract for sale of the business known as LL Property (“LL Property”).  On settlement of the Suburb U property and the business known as LL Property, B Pty Ltd as the trustee for the D Trust, shall not deal with the proceeds of sale.  Further orders were made ordering that payment to the husband or as he directs in writing the sum of $1,500,000 by way of interim property settlement, of which $500,000 is to be used by the husband for the sole purpose of paying legal costs in relation to these proceedings.  The effect of the orders made is to preserve the net proceeds of sale of the LL Property and to require the husband to give notice of any intention to deal with the MM Property. 

In an Application in a Proceeding filed 25 February 2021, the wife sought a suite of orders which would have the effect of restraining the husband from exercising powers as appointor; dealing with the assets owned by three trusts, other than in the ordinary course of business; causing the trusts to make distributions in his favour; or dealing with the real estate and commercial assets in Country H which he owns personally.  By orders made on 17 June 2021, the primary judge dismissed the wife’s application.  

By an Amended Notice of Appeal filed 5 October 2021, the wife seeks leave to appeal, and if leave is granted, to appeal against orders of a judge of the Family Court of Australia made on 17 June 2021 dismissing her application for orders by way of injunction in proceedings between herself and the husband.  If leave is granted, the wife seeks leave to adduce further evidence.  

Issue:

Whether or not the primary judge erred in making its orders. 

Applicable law:

Evidence Act 1995 (Cth) s 91 - provides that evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.  Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

Family Law Act 1975 (Cth) s 94AA - replicate what is now known as s 28(3) of the Act. 

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28(3)35(b) - provides that leave of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from:
(a)  a judgment of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia exercising original jurisdiction under:

(i)  the Child Support (Assessment) Act 1989 ; or

(ii)  the Child Support (Registration and Collection) Act 1988 ; or
 
 
(c)  a judgment or decision of a Judge or Magistrate exercising jurisdiction, as mentioned in paragraph (a), rejecting an application that the Judge or Magistrate disqualify himself or herself from further hearing a matter.
 
Ainsworth v Burden [2005] NSWCA 174 - held that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. 
 
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 - provides that the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
 
Analysis:
 
The wife asserted, as substantial injustice, how the husband has dealt with the property pool in a manner adverse to the wife, which has occurred since the date of the primary judgment.  However, the former matrimonial home at Suburb P, the net proceeds of the sale of the LL Property, and the MM Property were reserved and the value of those preserved assets is as much as $80 million.  The effect of the orders is to secure substantially more than half of the net assets and the wife’s interests are more than adequately protected. 
 
The mother asserts that the primary judge erred in admitting the judgment of Justice Black over the objection of the wife and contrary to section 91 of the Evidence Act 1995 (Cth) and in doing so, the primary judge erred in adopting the findings or paragraphs of Justice Black’s judgment, which impermissibly infected the reasoning process of the primary judge.  However, s 91 of the Evidence Act is not a prohibition on the admission into evidence of a judgment in other proceedings.  Counsel for the wife was unable to point to any finding of fact in the reasons of the primary judge which was a finding of a fact in issue and was based on acceptance of a finding in the Supreme Court judgment.

Conclusion:

The Court orders the dismissal of the application for leave to appeal from the orders of a judge of the Family Court of Australia (as it then was) made on 17 June 2021.  The application to adduce further evidence filed 8 October 2021 is dismissed.  No injustice is demonstrated.  The question of costs is reserved.  Within 14 days the husband must file and serve any affidavit and written submissions in relation to costs.  Within a further 14 days the wife should file and serve any affidavit and submissions in relation to costs.  Within a further seven days the husband should file any response to the wife’s submissions in relation to costs.  The issue of costs is to be determined in chambers without further appearances.

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