Abati and Cole

[2014] FamCA 60

FAMILY COURT OF AUSTRALIA

ABATI & COLE [2014] FamCA 60

FAMILY LAW – INJUNCTIONS - Holding orders.

Family Law Act 1975 (Cth)

APPELLANT: Ms Abati

RESPONDENT: Mr Cole

FILE NUMBER: MLC 10475 of 2013

DATE DELIVERED: 4 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 February 2014

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr North SC

SOLICITOR FOR THE APPELLANT: Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Eidelsen

SOLICITOR FOR THE RESPONDENT: Turner Freeman Lawyers

Orders

UPON THE UNDERTAKING of Ms Abati to pay as directed by the Court to any person affected by the restraints imposed by the injunction granted this day (or of any continuation thereof), such compensation as the Court may in its discretion determine AND UPON THE UNDERTAKING of the wife it is through her counsel not to dispose of any of the properties in Indonesia the subject of the litigation
IT IS ORDERED

1. That until the return date, the husband be restrained by injunction from further prosecuting proceedings in …, Indonesia in relation to issues which conflict with the obligations and entitlements of the parties arising out of the financial agreement said to be made on 30 April 2012 under s 90B of the Family Law Act 1975 (Cth).

2. That until the return date, the husband be restrained from doing any act, or executing any document, in Australia or Indonesia, to transfer the wife’s separate property in …, Indonesia into his name or into the name of any other person or entity.

3. That the reasons this day be transcribed and be made available to the parties.

4. That the parties’ costs of this day be reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel, to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abati & Cole has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: MLC 10475 of 2013

Ms Abati

Appellant

And

Mr Cole

Respondent

REASONS FOR JUDGMENT

1. In this particular matter, an application was filed by the wife on 2 December 2013 seeking a number of orders in relation to a financial agreement said to have been executed on 30 April 2012.  The orders sought today, which brought the matter into the judicial duty list, were an abridgment of time and various declarations relating to property which were said by the application to be in the wife's sole name.  The wife further sought some injunctive relief which, I am told, is now to be amended to read that the husband be restrained by injunction from prosecuting proceedings in Indonesia which would be inconsistent with the obligations and/or entitlements under the financial agreement which I have just mentioned.

2. I indicated to the practitioners this morning, who seem to have reached an agreement prior to today that the matter had to be adjourned, was that I was not prepared to adjourn the matter for two to three weeks.  I will not repeat the discussion I then had, and I have now had, with counsel for both parties.  What occurred thereafter, I am told by senior counsel for the applicant, is that an undertaking in relation to the wife's obligations was offered and an undertaking was sought in relation to his continuation of various things in Indonesia, including the transfer of property, and it was refused.  That triggered the application by the applicant seeking holding orders and it is on that basis alone that I propose to make the holding orders.  Injunctions are rarely made without an undertaking as to damages being proffered, and I am told by senior counsel for the applicant that that undertaking as to damages is, indeed, offered in this case. 

3. Jurisdiction is not in doubt whether it is as described by senior counsel for the applicant or under the powers in s 114 or, indeed, under the provisions relating to the enforcement of financial agreements. 

4. This is a holding order only and, notwithstanding a valiant argument by counsel for the respondent that there is prejudice by virtue of the fact that the court has not had the opportunity to see his client's case, it seems to me that there is no prejudice here, having regard to the fact that this is a temporary order.  The very purpose of that exercise is to stop people preventing the courts ultimately determining matters on a proper basis. 

5. In this matter I will make orders that the matter is adjourned to 5 March 2014.  That is upon the undertaking, as by the wife, as to damages. 

RECORDED  :  NOT TRANSCRIBED

1. I will reserve the costs of both parties.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 February 2014.

Associate: 

Date:  13 February 2014