Biggs and Curtis

[2012] FamCA 358

FAMILY COURT OF AUSTRALIA

BIGGS & CURTIS [2012] FamCA 358

FAMILY LAW – ORDERS – Ex parte orders – Orders to preserve assets – Immediate notice - Immediate service – Return date in 24 hours

APPLICANT: Ms Biggs

RESPONDENT: Mr Curtis

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3969 of 2012

DATE DELIVERED: 7 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Glezer Lanteri & Associates

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1. The applicant have leave to proceed ex parte with her Application in a Case filed this day.

2. The further hearing of the applicant’s Application in a Case be adjourned to 2.15 p.m. on Tuesday 8 May 2012 before me (“the adjourned date”).

3. Until further order the respondent be and is hereby restrained by injunction from causing permitting or suffering a disposal by him or any entity controlled by himself of his or that entity’s interest in the assets described in Schedule 2 of the applicant’s affidavit sworn 7 May 2012 and/or from further encumbering such assets.

4. The respondent attend court personally on the adjourned date, with legal representation if he has any.

5. Subject to sustainable objections, the respondent be in a position to provide responses orally to the allegations raised by the applicant in her affidavit sworn 7 May 2012.

6. The solicitors for the applicant forthwith attend to personal service on the respondent of a sealed copy of this Order and the documents filed this day being the Application Initiating Proceedings, the Application in a Case, the affidavit of the applicant sworn 7 May 2012 and the applicant’s Financial Statement.

7. Forthwith upon the Court rising today, the applicant’s solicitors send the documents referred to in the preceding paragraph to any solicitor whom they reasonably believe to have instructions to act on behalf of the respondent and, if there is no such solicitor(s), the lawyers whom, to their knowledge, last acted on behalf of the respondent. The documents be sent electronically and the fact that such documents are in the process of being sent be notified to any other relevant solicitors by telephone without delay.

8. The solicitors for the applicant be in a position to prove compliance, if called upon to do so, on the adjourned date with the two preceding paragraphs save that if solicitors who act for the respondent notify the applicant’s solicitors in writing that the respondent waives personal service, personal service need not be effected.

9. I reserve to the respondent liberty to apply to vary or set aside this Order or as he may be advised.

10. I reserve all questions of costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3969 of 2012

Ms Biggs

Applicant

And

Mr Curtis

Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. This matter comes before me as an urgent ex parte application for orders to preserve assets pursuant to s 90SS (1)(k).  These reasons will, of necessity, be brief because time is of the essence.  I have decided that some relief should be granted subject to the immediate service of the proceedings upon the respondent. 

2. I have read the applicant’s documents and am informed of the history.  The applicant is 45 years old.  She is not employed outside the home.  She is the mother of the parties’ two children.  She and the respondent reside at W Street, Suburb T.  The respondent is 57 years old.  He is employed in the property industry.  The parties cohabited from approximately 1998.  They have not married.  They separated last week on 1 May 2012.  Prima facie, I am satisfied that there is a de facto relationship within the meaning of the legislation.  The applicant’s evidence is that the parties separated well after 1 March 2009.  It was a de facto relationship of more than two years and there are children.  The children are L and J both born in November 2003 and both attend grade 3 at B School. 

3. The applicant has made application initiating proceedings and also makes the application in a case seeking urgent injunctive relief with which I deal today. 

4. I am concerned that the orders sought in the application in a case are too broad.  However, I am satisfied that there could be some risk of dissipation of assets.  I have not heard the respondent’s side of the story.  There may be a perfectly plausible explanation which exonerates the respondent from what the applicant says he will do. Procedural fairness and natural justice is a very significant feature of our system.  The respondent should know what case he faces and have a right to be heard before orders are made against him.  However, I am also concerned that there could be a dissipation of assets which could prejudice further relief which the applicant may seek.  That is what she claims.  That is, the applicant says that if the respondent is given notice of the application, he will do the very thing that she fears, which is to remove an asset from, or diminish the value of an asset in, the pool of assets divisible between them.  On the evidence, including a note allegedly in the respondent’s hand, I have some concerns.

5. In the circumstances, I will order some broad injunctive relief which, I envisage, will last only 24 hours.  I direct that the respondent be served immediately and I will hear from him, or on his behalf, tomorrow. I make orders which will operate until further order, noting that the matter will come back to court before me at 2.15 tomorrow afternoon. 

6. Hopefully, the respondent will be represented or have the benefit of legal advice and an interim holding arrangement can be negotiated.  Notice is to be given to Mr Kennedy, solicitor, notwithstanding the applicant’s objection to him or his firm acting for the respondent. I adjourn the court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 May 2012.

Associate: 

Date: