Carson and Carson

[2017] FamCA 457

FAMILY COURT OF AUSTRALIA

CARSON & CARSON [2017] FamCA 457

FAMILY LAW – PROPERTY – interim orders – interim injunctions – where the wife seeks an interim injunction preventing the husband from accessing his superannuation – where the husband did not attend the hearing – order made for an interim injunction preventing the husband accessing his superannuation entitlements – order made for an interim injunction directing the trustees of the superannuation funds not to make payments to the husband – interim applications adjourned.

Family Law Act 1975 (Cth)

APPLICANT: Ms Carson

RESPONDENT: Mr Carson

FILE NUMBER: MLC 5515 of 2017

DATE DELIVERED: 15 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 15 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wood

SOLICITOR FOR THE APPLICANT: MST Lawyers

THE RESPONDENT: No Appearance

Orders

1. That until 5 pm on 5 July 2017, the husband, by himself, his servants or agents, be and is hereby restrained from accessing or diminishing in any way his interests or entitlements in the B Super fund or his C Super Fund.

2. That until 5 pm on 5 July 2017, the Trustees for both the husband’s B Super fund and C Super fund be directed not to make any payments in respect of the husband’s entitlements in either fund to the husband or any person nominated by him.

3. That the wife’s application for interim orders contained in her Initiating Application be adjourned for hearing in the Judicial Duty List at 10.00 am on 5 July 2017.

4. That the husband personally attend the hearing on 5 July 2017.

5. That by 4 pm on 30 June 2017, the husband file and serve:

   (a)       Response to Initiating Application;

   (b)       Affidavit in support of any interim orders sought and in reply to the wife’s affidavit filed 6 June 2017; and

   (c)       Financial Statement.

6. That there be liberty to apply on short notice.

7. That the wife’s 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 Carson & Carson 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 5515 of 2017

Ms Carson

Applicant

And

Mr Carson

Respondent

REASONS FOR JUDGMENT

1. The matter of Carson comes before me today upon an application for abridgement of time of the wife’s Initiating Application filed 6 June 2017.  That application is supported by her Affidavit sworn 5 June 2017 and her Financial Statement also sworn that day. 

2. That application seeks orders that until further order, the husband be restrained from accessing or diminishing in any way his entitlements in his B Super superannuation fund and his C Super funds, and further, that the trustees of those funds be directed not to make any payments to the husband in respect of his entitlements until further order. 

3. The matter has been brought on urgently, as the husband is to turn 60 in approximately 10 days and that is the point in time at which he will be able to access his entitlements in respect of those funds. 

4. The application has been served personally on the husband.  There is an affidavit of service of Mr D, that affidavit having been filed on 8 June 2017.  That affidavit confirms that the Initiating Application, Court brochure, the wife’s Affidavit and her Financial Statement was served by hand upon the husband on 7 June 2017 at 5.10 pm.  In addition to that document is an acknowledgement of service signed by the husband on 7 June 2017.  Accordingly, on the basis of those documents, I am satisfied that the husband has had notice of the wife’s application. 

5. At the commencement of the hearing before me, the husband was called.  He did not answer the call.  I am satisfied that he has had notice of the interim application listed this day.

6. The wife, in her Affidavit, sets out the background to the matter.  She lives in Suburb E in the former matrimonial home with two children of the marriage and her son-in-law.  She is aged 58 years and is engaged in part-time employment.  The husband is 59 years and will turn 60 on 25 June.  He is living currently at an address in F Town.  He is engaged in full-time employment. 

7. The parties had a relationship that spanned some 35 years.  They separated in December of 2016.  There are four adult children of the marriage.

8. The principal assets of the parties are:-

   ·The former matrimonial home in Suburb E.  I am informed that the parties’ equity in that property is approximately $375,000;

   ·An investment property in Queensland which has equity of approximately $108,000. 

9. Hence, their interest in real property is valued at approximately $483,000.  The husband’s superannuation entitlements are valued at approximately $810,000.  The wife annexes to her Affidavit at annexure JMC-2 a statement of the husband’s superannuation interests as at 29 May 2017, which confirms the value of those interests at that time.

10. The wife, in her Affidavit, deposes as to the circumstances of the separation.  Further, at paragraph 14 of her Affidavit, she deposes that her solicitors wrote to the husband on 15 May 2017 in an endeavour to negotiate a property settlement and further seeking from him a written undertaking and assurance that upon his attaining 60 years, that he will not in any way access or diminish his superannuation benefits pending final property settlement.  That letter is annexed to the wife’s Affidavit at JMC-3.  At paragraph 15 of her Affidavit, the wife deposes that the husband has not responded to that correspondence, nor has he had any solicitor engaged on his behalf respond to that request.  She also notes there that the husband has agreed to attend financial mediation on 14 July 2017.  However, that appointment postdates his 60^th birthday. 

11. The wife expresses concern in her Affidavit as to the husband’s conduct.  Particularly, at paragraph 11 of her Affidavit, she notes that the husband has unilaterally withdrawn sums of money from the parties’ joint bank accounts.  She also deposes as to the husband having work in Asia and having formed a relationship with a person in Asia.  She is concerned that the husband will access his superannuation benefits and remit them to Asia, which will be beyond the reach of both the wife and this Court.  It is in those circumstances that she makes her application for an urgent injunction to restrain the husband from accessing his superannuation.

12. In circumstances where the husband has failed to respond to the request that he not deal with the asset and further has failed to appear at Court this day, I am satisfied that there is a basis for the wife’s concerns.  I am satisfied that it is appropriate, in the circumstances of the case, that there be an injunction as sought by the wife until, at least, he has the opportunity to put material before the Court. 

13. What I propose to do is make injunctions as sought by the wife.  They will expire at 5 pm on 5 July 2017.  I will otherwise adjourn the interim applications to the Judicial Duty List at 10 am that day.  I propose to make orders that the husband personally attend that hearing.  He needs to come before the Court so that his position can be known and appropriate arrangements made moving forward, as to securing the parties’ interests until such time as there is a final resolution of their property dispute.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 15 June 2017.

Associate: 

Date:  15 June 2017