Ex Parte Applications

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT MELBOURNE

 

MLC 3410 of 2020

 

MR TADROS

Applicant

 

and

 

MS TADROS

First respondent

Company A

Second respondent

Company B

Third respondent

Company C

Fourth respondent

Company D

Fifth respondent

 

REASONS FOR JUDGMENT

(revised from the transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

2. This is an application for review of a Registrar’s decision in relation to an urgent application filed by the applicant husband. In addition, the applicant seeks leave to proceed on an ex parte basis in relation to certain orders sought in his application.
3. In particular, in his application filed on 3 April 2020, the husband sought, among other things, interim orders for:

a) the joinder of four named superannuation and/or insurance companies;
b) all time be abridged to enable this application to be listed for an urgent ex parte hearing;
c) for orders 1 to 11 of the orders sought in his application be made on an ex parte basis; although in submissions today, counsel for the applicant indicated that, in fact, it was orders 1 to 12 that were being sought to be made on an ex parte basis; and
d) an order injuncting the respondent wife from dealing with or cancelling any of the life insurance policies referred to in the husband’s affidavit.

4. In support of his application, the applicant filed an affidavit affirmed on 2 April 2020, in which he deposed to the following:

a) his relationship with the respondent;
b) the parties separated in mid-2018;
c) there were three children of the relationship;
d) the parties ran a business together;
e) the parties took out large loans in 2000 and were advised to take out various insurance policies;
f) the parties confronted financial difficulties and ultimately the business was sold;
g) the parties purchased a family home in Town E in 2012 in the respondent wife’s sole name;
h) throughout this period, the parties continued making payments in respect of various insurance policies, including the life insurance policies the subject of these proceedings;
i) in 2008, the respondent wife was diagnosed with stage 4 breast cancer; and
j) the premiums of the various insurance policies have continued to be met by the husband for his business activities, both during the relationship and post-separation.

5. The husband’s affidavit also stated that the respondent’s wife’s condition is such that she is not likely to recover, and continues to receive regular treatment.  The current situation with COVID-19 is such that the wife’s health condition is more uncertain. 
6. He also stated that although he has sought to resolve property matters with his wife outside of the litigation process, the wife has not engaged meaningfully in these negotiations.  His evidence was that the wife has threatened to cancel various life insurance policies held for her benefit, and then after further discussion she indicated that she would not do so.
7. The husband also gave evidence that the wife put their holiday house at Town F up for sale in 2018 without consulting the husband. He stated that property was also in her sole name and that, as a result of decisions made to protect the matrimonial assets during the relationship, most of the parties’ assets are in the wife’s name.
8. The husband assesses the non-separation asset pool to be worth in the vicinity of $1,000,000, with liabilities of just over $200,000.
9. In addition, he believes that the wife has retained a further sum, being the net proceeds of sale of the Town F property, and is likely to receive a further sum by way of an inheritance following the death of her late father in 2018.

Urgency

10. The husband says that this matter ought to be dealt with urgently and on an ex parte basis because he is concerned that if the wife is given notice of his application, she may carry out the threat made and cancel her insurance policies.  He says that the consequence of that, even if done in a fit of pique, will be irreversible.
11. It was submitted that if the policies are deemed to be property for the purposes of the Family Law Act 1975 (Cth), they constitute a significant part of the asset pool.  Accordingly, that would significantly affect the outcome of these proceedings, for which the husband could not adequately be compensated.
12. Having regard to the factors in Myers & Myers [2011] FMCAfam 1104 (“Myers”), as noted with approval in Vibbard & Garcia [2012] FamCAFC 114, the applicant has satisfied me that absent an urgent listing, the applicant would be prejudiced in relation to the substantive relief sought other than in ways common to other matters awaiting the court’s attention in the normal course.  He has also satisfied me of the other requirements in Myers.  For those reasons, I propose exercising my discretion to list this matter on an urgent basis. 

Ex parte

13. I turn then to the question of whether orders should be made on an ex parte basis.  As stated earlier in these reasons, the applicant argued that the court, in exercising its discretion to list the matter for an urgent hearing, should also consider making the orders sought on an ex parte basis.
14. As stated by the Full Court of the Family Court in Sieling & Sieling (1979) FLC 90-6276-7 at [78254]:

Whenever a court acts ex parte it is departing from one of the primary rules of natural justice, that each part should be given an opportunity to present his or her case to the Court.  For this reason, an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the Court.

15. In this case, it is said that it is necessary to deal with this matter urgently and on an ex parte basis in order to preserve property of the parties. 
16. In light of:

a) the wife’s threat to cancel the insurance policies; and
b) the fact that if they are indeed to be property for the purposes of these proceedings, any such cancellation would be irreversible and would significantly affect the asset pool in this matter;

I am satisfied that it is appropriate in these circumstances for this matter to be dealt with on an urgent basis and for the orders sought to be made on an ex parte basis.

17. Moreover, I am satisfied that it is appropriate for the orders to be made on an ex parte basis, having regard to the Family Law Rules 2004 (Cth).
18. In submissions on behalf of the applicant, reference was made to rule  5.12 of the Family Law Rules 2004 (Cth) in relation to the applications without notice.  Similar provisions are found in the Federal Circuit Court Rules 2001 (Cth) at rule 5.01 and 5.03.
19. Relevantly, the applicant is required to establish the matters set out in rule 5.03 of the Federal Circuit Court Rules 2001 (Cth).
20. In this case, having regard to the affidavit material filed on behalf of the applicant, I am satisfied that:

a) there have been no previous proceedings between these parties;
b) there are no current proceedings between these parties;
c) there are no current orders in force between these parties; and
d) whilst there have been some attempt to negotiate property matters generally, no steps have been taken to advise the respondent of the applicant’s intention to seek these orders for the reason that the applicant is concerned that to do so might trigger the respondent to cancel the insurance policies and therefore render any claim by the applicant in relation to those policies nugatory.

21. I have already discussed the nature and the immediacy of the damage or harm which may result if the proposed orders are not made.  For similar reasons, it was submitted on behalf of the applicant that an abridgment of time alone without ex parte orders would not be more appropriate.  I accept those submissions.
22. Simply having the matter listed with a shorter period of time does not deal with the risk that by giving notice to the respondent wife that she may not then take action which is irreversible and cancel the insurance policies.
23. Importantly, the applicant has indicated a preparedness to give an undertaking as to damages in relation to the insurance companies that he seeks to have joined to these proceedings.  Given the size of the asset pool, there is some money at his disposal to meet any award of damages made in relation to those matters, and in reliance upon that undertaking.
24. This matter was initially listed by the registry for a first return on 6 June 2019.  In circumstances where ex parte orders are made, it is my view that this matter ought to come back before me earlier than that date.
25. I therefore make orders 1 to 12 of the interim orders sought in the applicant’s application filed 3 April 2020.

Posted in: Derek Legal Blog at 08 July 20