Barnes and Barnes and Anor (No 2)

[2016] FamCA 1102

FAMILY COURT OF AUSTRALIA

BARNES & BARNES AND ANOR (NO 2) [2016] FamCA 1102

FAMILY LAW – INJUNCTIONS – Application by the wife for an injunction restraining a third party from destroying documents – no appearance by the third party – where the third party has been served and is aware of the proceedings – where the third party chose not to participate – application granted

Family Law Act 1975 (Cth)

APPLICANT: Ms Barnes

FIRST RESPONDENT: Mr Barnes

SECOND RESPONDENT:  Mr Harris

FILE NUMBER: MLC 4997 of 2016

DATE DELIVERED: 9 June 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 9 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Nedovic Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Glick QC

SOLICITOR FOR THE FIRST 

RESPONDENT:

Taussig Cherrie Fildes

THE SECOND RESPONDENT: No appearance

Orders

1. That pursuant to the accrued jurisdiction of this Honourable Court, the wife’s application against the second respondent be heard together with her application pursuant to s 79A.

2. That the husband and Mr Harris each be restrained from:-

   (a)      Destroying; or

   (b)      Doing any act which restricts the availability of; or

   (c)      Directing any person to do any act which restricts the availability of:

   any document which:-

   (d)Evidences any request by him or his agents to produce any statement as to the value of the property situate at and known as B Street, Suburb C in the State of Victoria;

   (e)Constitutes or evidences any communication between any of the following persons in relation to the value of the property situate at and known as B Street, Suburb C in the State of Victoria:-

   (i)The husband;

   (ii)Mr Harris;

   (iii)Mr D of E Pty Ltd;

   (f)Constitutes or evidences any material relied upon by him in support of any application for finance to any bank or like lending institution since 1 January 2015.

3. That within 14 days the husband and Mr Harris each swear an affidavit deposing to all documents in their possession, power and/or control which:

   (a)Constitute or evidence any communication between any of the following persons in relation to the value of the property situate at and known as B Street, Suburb C in the State of Victoria:

   (i)The husband;

   (ii)Mr Harris;

   (iii)Mr D;

   (b)Constitute or evidence any representation made by them to any third party as to the value of the property situate at and known as B Street, Suburb C in the State of Victoria.

4. That the second respondent have leave to file any application upon which he seeks to rely with respect to order 1 hereof upon the filing of:-

   (a)      An Application in a Case;

   (b)An affidavit in support which provides an explanation for his non-attendance at Court this day.

5. That the husband make, file and serve any affidavits upon which he seeks to rely by 23 June 2016.

6. That the wife file any affidavits in reply upon which she seeks to rely by 7 July 2016.

7. That paragraphs 5 and 6 of the interim orders sought in the wife’s Initiating Application filed 1 June 2016 be adjourned for hearing in the Judicial Duty List at 10.00am on 3 August 2016.

8. That the wife cause a copy of these orders to be personally served upon the second respondent. 

9. That the second respondent personally attend Court at the hearing listed on 3 August 2016.

10. That the costs of this day be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barnes & Barnes and Anor (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4997 of 2016

Ms Barnes
Applicant

And

Mr Barnes
First Respondent

And

Mr Harris
Second Respondent

REASONS FOR JUDGMENT

1. The matter of Barnes, Barnes and Anor comes before me today in accordance with the orders that I made on 6 June 2016.  The wife is represented today by Ms Smallwood of counsel, the husband by Mr Glick QC.  There has been no appearance by Mr Harris. 

2. Mr Harris was called at the commencement of the day.  He did not answer the call.  As a result, I caused the matter to be stood down, so that attempts could be made to communicate with Mr Harris to ascertain his position with respect to the application before me today. 

3. I should note, by way of background, that an affidavit of service was filed on 8 June 2016, that being the affidavit of Mr H.  That affidavit confirms that on 7 June 2016 at 9.15 am, Mr H served upon the second respondent, Mr Harris, the wife’s Initiating Application, the affidavit of the wife sworn 1 June 2016, the orders made 6 June 2016 and the undertaking of the wife.  Mr H deposes in that affidavit that he served the documents by hand upon Mr Harris at I Street, Suburb J, and that, further, he had the following conversation with Mr Harris.  He deposes that he asked, “Are you [Mr Harris]?” to which the person served replied, “Yes.”

4. Upon the resumption of the hearing, I was informed by Ms Smallwood of counsel that her instructor had had a conversation with Mr Harris by mobile telephone.  I am told that Mr Harris denied that he was served personally with the documents.  He denied that he had a conversation with Mr H.  He indicated that he was aware that there were documents at his place of work, but that he had not read those documents.  He was asked whether he was in a position to come to Court today.  He declined that opportunity, informing Mr Nedovic, Ms Smallwood’s instructor, that he could not come to Court today, because his partner had a migraine and he was required to take his partner to hospital. 

5. In those circumstances, the wife seeks that I make orders today in terms of paragraphs 2, 3 and 4 of the interim orders sought in the wife’s Initiating Application filed 1 June 2016.  The husband does not oppose orders in those terms. 

6. Counsel for the wife submits that in circumstances where Mr Harris has made a decision not to read Court documents served, and, further, has made the decision, when presented with an opportunity to attend Court today, not to take up that opportunity, orders should be made in the terms sought in her application.  The wife seeks that orders be made until further order, it being agreed, that the matter should be adjourned to 3 August 2016.  I am satisfied, based on the material filed, that Mr Harris has been served with the documents.  There is an affidavit that confirms that he has been personally served with the documents. 

7. Having regard to the matters that I have outlined, I am satisfied that it is appropriate that I make orders in the terms of paragraph 3 and 4 interim orders.  As to paragraph 2, I will give Mr Harris an opportunity to make application to set aside that order, upon him filing an application and an affidavit in support of that position.  That is a matter, if he wishes to ventilate, can be ventilated at the adjourned hearing of the matter.

8. I will make further orders as to the filing of material by the husband by 23 June 2016.  I will provide the wife with an opportunity to respond by 7 July 2016. 

9. I will adjourn the matters to 3 August 2016, particularly the hearing of paragraphs 5 and 6 of the interim application of the wife, as set out in her initiating application. 

10. I will make a further order that the wife cause a copy of these orders to be served personally upon Mr Harris.  There will be an order that Mr Harris personally attend Court at the adjourned date, on 3 August 2016.  I otherwise will reserve costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 9 June 2016.

Associate:  …

Date:  9 June 2016