Arman and Arman (No. 2)

[2008] FamCA 1131

FAMILY COURT OF AUSTRALIA

ARMAN & ARMAN (NO. 2) [2008] FamCA 1131

FAMILY LAW – PROPERTY – Contravention – Payment of monies – Costs reserved

Family Law Act 1975 (Cth)

APPLICANT: Ms Arman

RESPONDENT: Mr Arman

FILE NUMBER: MLC 3450 of 2007

DATE DELIVERED: 17 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Phelan

SOLICITOR FOR THE APPLICANT: Harwood Andrews

THE RESPONDENT: Litigant in person

Orders

1. That the interim application in a case filed 13 November 2008 and the application that the husband be dealt with for contravention of orders filed 13 November 2008 be adjourned before me at 9.00am on 17 December 2008.

2. That the husband be by himself, his servants or agents, restrained from dealing with or disposing of any funds received by him on the redraw facility from the joint home loan account of the parties with the National Australia Bank from Account No. … transferred into his account on 3 November 2008.

3. That the husband forthwith pay the sum of $26,000 either to the account of Harwood Andrews to be held on behalf of the parties jointly pending final settlement of the orders made on 31 October 2008 or return the said sum to the National Australia Bank depositing it into the joint home loan account of the parties referred to.

4. That the husband be by himself, his servants or agents restrained from renting or sub-renting the property at T Street to any other person until further order.

5. Reserve the questions of costs of this day.

6. That the reasons for judgment this day be transcribed.

7. That the wife have leave to issue subpoenae to National Australia Bank returnable on 17 December 2008 at 9.00am before me.

8. That upon the oral application by the husband to vary paragraph 7 of the orders made on 31 October 2008, the application is refused.

IT IS NOTED that publication of this judgment under the pseudonym Arman & Arman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3450 of 2007

MS ARMAN

Applicant

And

MR ARMAN

Respondent

REASONS FOR JUDGMENT

1. In this matter I have an application before me filed by the wife on 13 November 2008, but there are in fact two applications.  The first is an application for contravention and the second is an application of case.  Both were directed by a registrar to be listed as a matter of urgency this morning at 9 am. 

2. The husband, who is the respondent to both applications, arrived at 9.25 am and has indicated to me that he is no longer represented by the lawyers who represented him in the trial but is now approaching a Gary Goldsmith who is unable to be here today because he is in the Supreme Court, but in addition to which Mr Goldsmith wants the various documents executed to enable him to have the appropriate retainer.  There has been some discussion about what documents can and cannot be signed and lodged and the transcript will note that those matters are matters about which I have indicated to the husband that he needs to get some legal advice.

3. The application in relation to contravention concerns breaches of orders other than children's matters and as such I have drawn to the husband’s attention page 5 of the application which sets out the consequences if the orders are found to have been breached.  On that basis it is not appropriate that I deal with that issues at the moment until the husband gets some legal advice.

4. The other matters relate to some action by the husband last week in which he unilaterally removed money from a National Australia Bank account and he has told me from the Bar table this morning that he has given that money to his lawyers because they will need to be paid.  That was clearly something that was not foreshadowed, nor permitted under the orders, but that is a matter that I will hear some evidence about, no doubt, in due course.  It seems appropriate in the circumstances that that money simply be put back.  I would hope that the lawyers who received the money understand that they would be assisting, potentially, the husband to be doing something that he should not be doing and on that basis they should not be participating in that sort of activity.

5. The other matters that relate to the contravention are also that the husband be restrained from parting with possession or occupation of T Street property or renting the property out.  The husband has told me from the Bar table this morning that he has let some friends use the property because he is now going to have to sell it, but providing he does not rent it, I do not see there is a problem because he has the right under the orders that I made to have exclusive occupancy until seven days prior to the sale of the matrimonial home.  I propose to make an order that he not rent it out in any commercial sense.

6. These are very serious matters and I had indicated to the parties that I would like to know exactly what they intend to do, but it does not seem to suit everybody to have the case heard later this week for mention so I will now list it for 9 am on 17 December.

7. The husband has now made an application orally for a variation of paragraph 7 of the orders that I made on 31 October in relation to telephone communication with his children.  I have indicated to him that to do that he would need to show me that there has been a change of circumstances and, without a proper application or affidavit material in support of that, it is not a matter that I should determine otherwise than to refuse it this morning.

8. The other matter that has just also been raised is an oral application by the wife for leave to issue subpoena to the National Australia Bank returnable on 17 December 2008 at 9 am before me in relation to the questions of what actually occurred last week with the account and I see no reason why that ought not to be allowed on the basis that it will establish the factual issues in dispute.

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 November 2008