Castles and Pesic - [2008] FamCA 1003

FAMILY COURT OF AUSTRALIA

CASTLES & PESIC

[2008] FamCA 1003

FAMILY LAW – INJUNCTIONS –Wife’s application for ongoing injunction restraining husband from departing from Australia until he pays or provides security for payment of a costs order made following a trial in which husband was found to have had substantial undisclosed funds in overseas bank accounts that he had been ordered to transfer to Australia but had not done so

Family Law Act 1975 (Cth) s 114(3)

Brown v Brown (2007) FLC 93-316
Khademollah v Khademollah (2000) FLC 93-050

APPLICANT:

Ms Castles

RESPONDENT:

Mr Pesic

FILE NUMBER:

MLC

5548

2008

DATE DELIVERED:

6 AUGUST 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

WATT J

HEARING DATE:

6 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS CAMPBELL

SOLICITOR FOR THE APPLICANT:

FORTE FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT:

IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

The husband’s comments made at the beginning of the hearing and before he left the court in this matter be transcribed and a copy be sent to each of the parties and a copy placed on the court file.
Until further order THE HUSBAND born … May 1963 be and is hereby restrained from departing the Commonwealth of Australia until such time as he pays or makes provision and provides security for payment of the order for costs in the sum of $120,000 made by me on 18 January 2008 AND I DIRECT that his name remain upon the Airport Watch List until ordered to be removed by a judge of this Court.
The wife’s application filed 19 June 2008 is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 9526 of 2000

MS CASTLES

Applicant

And

MR PESIC

Respondent

REASONS FOR JUDGMENT

At this hearing Ms Campbell appeared for the applicant wife, and the husband appeared in person. As has happened in earlier hearings, both before me and before at least one other judge, the husband left the courtroom before the hearing had concluded. Paragraphs 43 and 44 of the ex tempore judgment delivered by Justice Guest on 7 September 2006 describe the husband leaving the court room during the hearing of a costs application by the wife following the dismissal of the husband’s application seeking permission to travel overseas. The husband left the court room on 24 November 2006 during the final hearing of the applications before me (he later returned and participated in the hearing to its conclusion).
The application before me today was filed by the wife on 19 June 2008 and seeks the continuation, on an indefinite basis/ until further court order, of an injunction that was first made by another judge in 2005 and last extended by me on 20 March 2008 that restrains the husband from leaving the Commonwealth of Australia.
The history of the extended financial proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Castles and Pesic

Details

AGLC: Castles and Pesic [2008] FamCA 1003
Case: [2008] FamCA 1003
Decision Date: 6 August 2008

CaseChat Overview and Summary

In *Castles and Pesic*, heard before Watt J, the dispute concerned orders made in relation to costs and the husband's ability to depart Australia. The wife had made an application on 19 June 2008, which was subsequently dismissed.

The primary legal issues before the court were whether the husband should be restrained from departing the Commonwealth of Australia and whether security for costs should be provided. The court also considered the appropriate action regarding comments made by the husband at the commencement of the hearing.

Watt J ordered that the husband's comments made at the beginning of the hearing be transcribed and distributed to the parties and placed on the court file. Crucially, the husband was restrained from departing the Commonwealth of Australia until he paid or made provision and provided security for the $120,000 costs order made on 18 January 2008. His name was directed to remain on the Airport Watch List until further order. The wife's application filed on 19 June 2008 was otherwise dismissed.

Orders

Orders of the court

The husband’s comments made at the beginning of the hearing and before he left the court in this matter be transcribed and a copy be sent to each of the parties and a copy placed on the court file.

Until further order THE HUSBAND born … May 1963 be and is hereby restrained from departing the Commonwealth of Australia until such time as he pays or makes provision and provides security for payment of the order for costs in the sum of $120,000 made by me on 18 January 2008 AND I DIRECT that his name remain upon the Airport Watch List until ordered to be removed by a judge of this Court.

The wife’s application filed 19 June 2008 is otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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