Bramaer and Bramaer

[2008] FamCA 1134

FAMILY COURT OF AUSTRALIA

BRAMAER & BRAMAER [2008] FamCA 1134

FAMILY LAW – PROPERTY – Injunctions

Family Law Act 1975 (Cth)

APPLICANT: Ms Bramaer

RESPONDENT: Mr Bramaer

INTERVENOR: HSBC Bank Australia Ltd

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9311 of 2008

DATE DELIVERED: 13 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B.R. Geddes QC

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

Orders

1. That all times be abridged and this application be heard as a matter of urgency and without notice to the husband or the second respondent.

2. Until further Order the husband be and is hereby restrained by himself, his servants and/or agents from withdrawing, transferring, closing, dissipating and/or alienating all funds held in the husband’s name in any accounts and/or term deposits with HSBC Banking Australia Limited (“HSBC”) and, in particular, without limiting the generality thereof:-

   2.1     Term deposit BSB No. … Account No. …-051;

   2.2     Term deposit BSB No. … Account No ….-054;

   2.3     Term deposit BSB No. … Account No. …-055;

   2.4     Term deposit BSB No. … Account No. …-056;

   2.5     Term deposit BSB No. … Account No. …-057;

   2.6     Term deposit BSB No. … Account No. …-058; and

   2.7     Term deposit BSB No. … Account No. …-902.

3. That until further Order HSBC Bank Australia Limited be and is hereby restrained by itself, its servants and/or agents from permitting the husband in anyway, including by internet banking facility from transferring, drawing on, closing or in anyway alienating or disposing of any funds held by the husband in his name in any term deposit held at HSBC Bank Australia Limited and, without limiting the generality thereof, the term deposit accounts, more particularly described at Order 2.

4. That service by way of hand of these proceedings on the husband be dispensed with an service be effected by the wife’s solicitors causing sealed copies of the following documents to be attached to an e-mail and forwarded to the husband by email at …@...:-

   4.1     Application for Final Orders filed on behalf of the wife in the Family Court of Australia at Melbourne filed contemporaneously herewith;

   4.2     Statement of Financial Circumstances of the wife filed in the Family Court of Australia at Melbourne contemporaneously herewith;

   4.3     Application in a Case filed on behalf of the wife in the Family Court of Australia at Melbourne contemporaneously herewith;

   4.4     Affidavit of the wife filed in the Family Court of Australia at Melbourne contemporaneously herewith;

   4.5     A sealed copy of any Orders made in the Family Court of Australia at Melbourne contemporaneously herewith;

   4.6     Family Law Courts brochure “Marriage, Families and Separation”.

5. That the wife’s solicitors forthwith serve on The Proper Officer, HSBC Bank Australia Limited at its Registered office being Level 32 HSBC Centre, 580 George Street, Sydney, NSW, 2000 sealed copies of the following documents:

   5.1     Application in a Casse filed on behalf of the wife in the Family Court of Australia at Melbourne contemporaneously herewith;

   5.2     Affidavit sworn by the wife filed in the Family Court of Australia at Melbourne contemporaneously herewith; and

   5.3     A sealed copy of any Orders made by the Family Court of Australia at Melbourne contemporaneously herewith.

6. That the further hearing of the Application in so far as it seeks orders in respect of the husband and the second respondent be adjourned to 9.00am on 24 October 2008 before me.

7. That liberty be granted to HSBC Bank Australia Limited to apply for any further or other orders of this Honourable Court on 72 hours prior written notice to the wife’s solicitors.

8. That my reasons for judgment this day be transcribed, placed on the file and a copy made available to all parties.

9. Reserve the costs of the wife of this day.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9311 of 2008

MS BRAMAER

Applicant

And

MR BRAMAER

Respondent

REASONS FOR JUDGMENT

1. This is a matter that has come to me in the duty list on an urgent basis.  Mr Geddes of Senior Counsel appears on behalf of the applicant wife and there is no dispute that the husband not been served nor has the second respondent.  The husband is either in Cyprus or possibly in Russia but there seems to be ready access to him, having regard to the fact that he is an executive with N Company and his email address is well known to the wife and will be the base to which I send orders of the court today.  HSBC Australia Ltd also has not been served for reasons which I hope will become a little more apparent when I give some further reasons.

2. The parties in this case have a long relationship of some 25 years and there is one child aged 15.  For a substantial period of time the parties have lived overseas.  In more recent times the wife has returned to Australia and the marriage has come to an end.  The wife is 50 years of age and occupied in home duties and the husband 54 years of age and as I said, he is an executive with N company.

3. The major concern relates to seven term deposit accounts with HSBC Bank Australia Ltd. I am told that they total approximately $3.3 million. Importantly, it is said by the wife that that is a significant portion of the assets of the marriage and she is concerned that the husband is in a position and in fact may do something to prejudice her entitlements in some way. 

4. I am asked today to make temporary orders without notice to either the husband or the second respondent until the matter can be properly determined by the court in a standard way. 

5. In her affidavit filed this day the wife refers to the fact that on 28 September the husband returned the child after a ski trip and she endeavoured to discuss with him issues associated with the term deposits to which I have referred.  Those term deposits are in the husband's name or under his control and the wife has no access to them.  To that extent there is some concern that the husband could take steps to prejudice her interests. 

6. According to the wife's affidavit she suggested that each of the term deposits on maturity be reinvested in joint names and the husband's response was that there was no need for that to occur.  She was aware that the term deposits were coming up for maturity and so she asked him if those funds could be deposited into her bank account and ultimately divided when the court had an opportunity to look at the matter.  The husband's response was that he did not think that that would happen and that he would probably do something, "in one big hit".  The wife's concern is that the husband has access to Internet banking and he could quite easily move funds beyond her control and again to her prejudice.

7. The wife also points out that the HSBC have told her that they will not provide any specific information to her in relation to the accounts.  I make no criticism of them for that, having regard to the fact that the wife is not a signatory to any of the accounts. 

8. The wife also says in her affidavit that the moneys form the most substantial asset that the husband has disclosed but there are possibilities of other assets of which she is not aware but even if they were, they would be minor in comparison.  The wife says, and I quote:

   I am concerned by the husband's responses to my requests to convert the HSBC term deposits on maturity to term deposits into our joint names and to my suggestions to ensure the funds in those term deposits be preserved until final division of property between us.  His response that I wouldn't know if he pressed the button and all those funds were gone causes me concern and anxiety.  His response was not reassuring in any way.

9. The first issue that I need to address is the fact that the application is to proceed without notice to any party.  Chapter 5 of the rules sets out that the parties can make an application and in particular sets out the procedure.  One of the submissions that must be satisfied is that there are reasons why the application should be made on an ex parte basis supported by an affidavit.

10. I am satisfied, having regard to what the wife has set out in her comprehensive affidavit that this is a case where there is some risk, particularly having regard to the fact that the husband is outside of the jurisdiction of the court and has indicated that he has the control and may in fact exercise it that it is an appropriate case to determine on an interim basis in the absence of the husband.

11. Similarly, it is appropriate to deal with the matter on an ex parte basis in respect of the second respondent, they simply being potentially a party to whatever action the husband may take, he being the contracted owner of those funds. 

12. This is a situation where I have extensive powers under s 114 of the Family Law Act 1975 (Cth) (“the Act”) to make orders which in the circumstances have to be proper.  It seems to me that this is an application simply to preserve funds rather than to do anything else and on that basis the husband is not prejudiced in any way by me making an order that the funds be preserved until the proper processes can be followed. 

13. It is a case therefore where on a temporary basis the orders should be made.  Mr Geddes of Senior Counsel has given me a set of draft orders.  The only alteration I propose to make to those drafts is a jargon one in the very first paragraph.  I will delete the words “on an ex parte basis” and use the language of the 21st century, which is, “without notice to the husband or the second respondent”.  I will make those orders.  I will reserve all questions of costs. 

I certify that the preceding Thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 October 2008