Redundancy not injuncted
The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/1177.html?stem=0&synonyms=0&query=family%20law%20act
Gannon & Gannon  FCCA 1177 (13 May 2016)
- There is an Application in a Case before the Court today brought by the Wife who is the substantive Applicant. Her application is to re-open proceedings by way of an interim hearing where judgment is currently reserved and where judgment is expected to be handed down on a date to be fixed next month upon my return from leave.
- The order that was sought was that leave be granted to the Applicant Wife to re-open her case for urgent injunctions sought in her application in a case filed 24th September 2015 which was heard and judgment reserved on 11th November 2015 to adduce further evidence as set out in the affidavit filed with this Application. There is an affidavit by the Wife in support of that Application.
- There is before the Court today a Response to An application in a Case which was filed electronically at 11 minutes past 9 this morning. It is supported by an affidavit of the Husband to which he deposed in (country omitted) yesterday. Order 2 in the Response to an Application in a Case is that leave be granted to each of the parties to re-open their respective cases and adduce fresh evidence as set out in the affidavits filed in respect of this Application. That has happened this morning. I have heard submissions from Mr Givney of Counsel for the Applicant wife and Mr Richardson of Senior Counsel for the Respondent husband.
- What has transpired this morning is that the Applicant sought to amend her Application in a Case to add a further order to become order sought number 5, which is an order intended to take place immediately to bring about an injunction to abide until the decision in the matter before me can be handed down. And that order is, as it is sought:
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Pending further order the husband be restrained from disposing of any lump sum payment or payments made or to be made by (omitted) in relation to his resignation from that employer.
- That Application has arisen from statements deposed to by the Husband in paragraphs 30 and 31 of his recent affidavit. In paragraph 30 he indicates that he has negotiated terms of employment with a prospective employer and will, in due course, receive a formal offer of settlement in respect of those terms and expects to receive sign-on payments. Those payments are not the subject of the specific application for an injunction but the affidavit goes on to say at paragraph 31:
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It is my expectation that I will be resigning from (employer omitted). I have already informed my current employer that I intend to resign. I will formally resign once I have accepted the formal offer of settlement.
- It is moneys to come from (employer omitted) that are the subject of the order I am being asked to make today to tide the Applicant over until a decision can be handed down in respect of the other matters. Both Counsel referred the Court to the decision of the Full Court of the Family Court in Gollings & Scott.
- That case concerned an appeal by the husband against property orders made in the Family Court of Western Australia. There were also spousal maintenance orders made and the husband submitted that the trial judge erred in determining the size of the pool of assets available for distribution between the parties. The appeal was allowed. There are a number of significant factual differences between Gollings & Scott and the case that is before me.
- Mr Richardson of Senior Counsel has pointed out to me that for a start whilst the Wife’s case refers to indirect contributions which have led to the Husband having been able to generate a significantly high income that there were children under the age of 18 in Gollings & Scott who were with the Wife whereas this matter has no children involved, so there is no child maintenance issue to be considered.
- It is a fact that the parties separated in 2011 and the Husband, who now resides in the (country omitted) and has for some time, has continued to work there and obtain a significantly high income. He commenced work with (employer omitted) in 2013 and it now appears that he will be resigning from (employer omitted) at some stage in the near future.
- There was some argument about his entitlement to (omitted) which are expected to vest on the 20th of this month but it is the Husband’s evidence that he can expect nothing more in that regard because after that date and in the fairly near future he will have left the employment of (omitted) to go to this new employer. Mr Givney of Counsel has pointed out that were it not for this Application in a Case having been brought, the Wife would not have known and the Court would not have been aware, at least at this stage, of the change in the Husband’s employment situation.
- But this gets back to the fact that the Court is being asked to make an injunctive order now in respect of whatever amount of money the Husband is to receive from (employer omitted) in relation to his resignation from that employer. I raised the issue that there was no evidence at all as to what that amount of money might be. Mr Richardson has submitted that there may in fact be no amount. I am inclined to think that there may well be some amount of money but again I have no idea of the quantum.
- There is also the issue which concerned me as to if there were to be a lump sum would it be regarded as property or would it be regarded as financial resource available to the Husband.
- Mr Givney has submitted that such an issue is ultimately for determination by the trial judge conducting the final hearing. That will not be me; it will be another judge.
- There are, however, two matters which concern me and I have read through the decision in Gollings & Scott where their Honours refer at paragraphs 46, 47 and 48 about paid legal costs and where there is a reference to funds generated by a party post separation and in particular funds generated by a party from his or her own endeavours. It seems to me that moneys made by the husband whilst working for (employer omitted) must clearly be described as funds generated post separation because he did not start working for (employer omitted) until some time after the parties separated.
- If there is to be a lump sum, ultimately it will fall to the trial judge to decide what it is. In other words, what that sum is and whether it is to be regarded as property or a financial resource. However, in my view, when deciding whether or not an injunctive order should be made, it does fall to the Court today to form some idea as to what this amount of money from (employer omitted), whatever it is and presumably is in a lump sum, could conceivably be regarded.
- I maintain my view that it is more likely than not that it would be regarded as a financial resource available to the Husband. But there is another issue to which Mr Richardson of Senior Counsel referred about the making of an injunctive order in the first place.
- Mr Givney of Counsel has submitted that the Husband has not shown any hardship would arise if this order were to be made. It is clear that he has a substantial income and there is evidence before me that he has entered into transactions to purchase a (omitted) motorcycle and a Range Rover (omitted), a motor car.
- But as I indicated to Counsel in the course of discussion, the party seeking the injunction must show that there are grounds for making the injunction and that a Court cannot accede to an argument that the Respondent has not shown any reason why the injunction should not be made. It is a rule, a principle in litigation, that the party who puts is the party who must prove.
- As Mr Richardson submits, it is up to the Applicant to establish that there is a serious issue and if the serious issue is not established then the Court does not move to the issue of balance of convenience which gets to Mr Givney’s argument. All these reasons lead me to the view that I am not persuaded that there is a ground for making the injunctive order set out in the now paragraph 5 of the Amended Application in a case.
- I will not, therefore, be making an order restraining the Respondent Husband from disposing of any lump sum payment or payments that he is to receive from (employer omitted) in relation to his resignation from that employer. I dismiss that part of the application.