Birswood and Birswood

[2007] FamCA 1030

FAMILY COURT OF AUSTRALIA

BIRSWOOD & BIRSWOOD [2007] FamCA 1030

FAMILY LAW – INJUNCTION – Although the Respondent was not served with the Applicant’s Initiating Application and affidavit, he was aware of the proceedings but elected to avoid process and absent himself from court.  Urgent injunctions made until further order with orders as to service of application and affidavit.

Family Law Act 1975 (Cth) s 97(3)

APPLICANT: Mrs Birswood

RESPONDENT: MR Birswood

FILE NUMBER: MLC 9532 of 2007

DATE DELIVERED: 27 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 27 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McNaught

SOLICITOR FOR THE APPLICANT: Donald S Lampe

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all times be abridged to enable the hearing of paragraphs 2 and 3 of the interim orders sought to be expedited and heard this day.

2. That the Respondent and/or his servants and/or agents be restrained from dealing with, disposing of or otherwise encumbering the proceeds he received following retrenchment from P Group, Melbourne on or about 19 June 2007.

3. That the husband be and is otherwise restrained from dealing with, disposing of or encumbering any additional assets held by him or in his possession or on his behalf pending resolution of the proceedings.

4. That the wife do cause a sealed copy of the Initiating Application filed 27 August 2007, her Affidavit filed 24 August 2007 and this day, the Affidavit of GEOFFREY LAWRENCE McNAUGHT also filed this day and a sealed copy of these orders by forwarding the same by pre-paid post to:

   4.1the husband’s parents …, and

   4.2to Mr M Beswick, Solicitor, C/o Kempson Lawyers….

5. That the wife’s costs of this day be fixed in the sum of $650.00 and responsibility for payment of those costs be determined by a trial judge.

6. That the Initiating Application of the wife filed 24 August 2007 be otherwise adjourned for hearing and determination in the Judicial Duty List at 10.00 am on 10 September 2009.

7. That pursuant to rule 19.51 of the Family Law Rules 2004 this matter reasonably required the attendance of a solicitor acting as Counsel.

8. That the preparation of this Order be expedited forthwith.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Birswood & Birswood.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9532  of 2007

Mrs Birswood

Applicant

And

Mr Birswood

Respondent

REASONS FOR JUDGMENT

1. I have before me an Initiating Application brought by the wife as Applicant, and filed on 27 August 2007.  By that application, she seeks interim orders, firstly for leave to proceed this day in the absence of the husband (“the Respondent”) and secondly, that the Respondent, his servants or agents be restrained from dealing with, disposing or otherwise encumbering any proceeds he received on or about 19 June 2007 following his retrenchment from the P Group.  Finally, the Applicant seeks a further order that the Respondent be restrained from dealing with, disposing or encumbering any additional assets held by him or in his possession or on his behalf pending resolution of the proceedings.  Further and other facilitating necessary orders are also sought.  The application is supported by an affidavit sworn by the Applicant and filed on 24 August 2007. 

2. Mr McNaught appears for the Applicant and I have had the Respondent called this morning.  He failed to respond to the call.  I have also granted leave to Mr McNaught to file copies of a further affidavit sworn by the Applicant and one sworn by him which goes to the husband's knowledge of the proceedings, albeit that he has not been served with sealed copies of the Initiating Application and supporting affidavit. 

3. In all the circumstances I am satisfied that the Respondent has notice of the proceedings but is taking action to avoid process and responsibility.

4. I am satisfied from the documents that I have read, and from the helpful submissions of Mr McNaught, that the Respondent is aware of the subject of the proceedings this day, but has elected to rely upon formality.  I am satisfied as to his awareness of the proceedings by reason of the contents of the affidavit of Mr McNaught and that also of the Applicant.  Furthermore, annexed to the Applicant's affidavit is correspondence from Mr McNaught to Kempson, Lawyers and dated 16 August 2007.  I need not read the contents of that document into this short extempore judgment, save to say that when one adds together all the separate indices referred to in the various pieces of correspondence, and the contents of the two further conversations deposed to, both by Mr McNaught and by the Applicant, I am satisfied to the requisite standards of persuasion that the Respondent is aware of the proceedings this day and of the orders sought by the Applicant.

5. However, for reasons best known to himself, he remains absent. That does not deter me from making the orders until further order given the apparent urgency of the situation. I have been assisted by the helpful affidavit of the Applicant in support of the interim orders sought and I am satisfied those orders should be made. In matters such as this with the associated stamp of urgency, I should proceed without undue formality within the requirements of section 97(3) of the Family Law Act 1975 (as amended). Furthermore, the available assets for distribution are modest and I would trust that the Respondent may exercise some modicum of good commonsense and realise that the matter should be adjusted in a sensible and dignified manner. However, that is a matter for him.

6. Having regard to what I have said, I propose to make the orders sought. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  7 September 2007