Deerborne and Firkom

[2011] FamCA 60

FAMILY COURT OF AUSTRALIA

DEERBORNE & FIRKOM [2011] FamCA 60

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Deerborne

RESPONDENT: Mr Firkom

FILE NUMBER: MLC 10945 of 2010

DATE DELIVERED: 14 January 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nehmy

SOLICITOR FOR THE APPLICANT: Isakow Lawyers

Orders

1. That until further order, the husband is restrained from using or otherwise dissipating, any monies received or due to be received by him, pursuant to the settlement of the proceedings relating to his mother’s estate in the Supreme Court of Victoria.

2. To give effect to paragraph 1, the husband and the wife do all acts and things required to cause any monies received by the husband or due to be received by the husband, to be placed in an interest bearing trust account in their joint names with such funds not to be disbursed except pursuant to an order of this Court or written agreement between the parties.

3. That the wife file and serve an application, affidavit and financial statement by 4.00pm on 28 January 2011.

4. That the husband file and serve a response, affidavit and financial statement by 4.00pm on 11 February 2011.

5. That the wife have leave to amend her contravention application filed 25 November 2010, such application to be listed as set out below.

6. That the wife be deemed to have effected service on the husband by forwarding documents to the husband by:

   (a)email to the email address …; and

   (b)prepaid post to Apartment …, Thailand.

7. That the wife serve the husband with a sealed copy of these orders within 7 days.

8. That the wife’s costs of this day be fixed in the sum of $928.55 and reserved to the trial.

9. The contravention application filed 25 November 2010 be otherwise adjourned to 24 March 2011 at 10.00am.

10. That if the husband fails to comply with paragraph 4 of these orders and fails to attend on the return date, the wife have leave to proceed on a undefended basis.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10945 of 2010

MS DEERBORNE

Applicant

And

MR FIRKOM

Respondent

REASONS FOR JUDGMENT

1. The proceedings before me today in the judicial duty list have been brought by Ms Deerborne, to whom I shall refer as the wife.  Her application is a contravention application seeking to have Mr Firkom, to whom I shall refer as the husband, dealt with for breaching a paragraph of some very old orders of this court.  In essence, the application relates to injunctive orders made in 1992 and 1993 restraining the husband from receiving money by way of superannuation payments from the Superannuation Board of Victoria.

2. The husband did not attend today, but has been in communication with the registrar. He faxed to the court, not only some correspondence, but also an affidavit which he swore in Thailand on 4 January 2011. The substance of his affidavit is not relevant for my purposes today, save that it is clear that he wishes to attend and dispute that he has done anything wrong. He should be given that opportunity to attend and participate. Counsel for the wife acknowledged that. For that reason the matter needed to be adjourned. In addition, the affidavit material of the wife could not satisfy any of the relevant requirements of the Act to establish a breach. Both parties therefore need to get their houses in order and I propose to adjourn the matter to 24 March at 10 am in the judicial duty list to enable whatever needs to be done.

3. An oral application has been made now for an injunction.  The basis of the injunction is simple.  It is alleged that the husband has breached the earlier injunctive orders by drawing down on his superannuation.  The affidavit to which I have just referred does not tell me whether or not the husband admits or denies the fact that he has drawn down on his superannuation in contravention of the order.  It appears from the evidence that I heard from the wife that she became alerted to the husband’s activities when her son informed her that there was a disputed application in the Supreme Court of Victoria over the husband’s mother’s estate.  She was shown an affidavit filed in the Supreme Court proceedings and asked to be a witness about the affidavit which she saw.  She observed the husband’s signature.  She also said that in the affidavit, the husband acknowledged that he had drawn down money against his superannuation entitlements in either 2002 or 2003.

4. The proceedings in the Supreme Court of Victoria have now been resolved.  There is an order apparently that the husband is to get 50 percent of his mother’s estate and the other half goes to the wife’s son.  The son is not an executor and therefore the wife has no control over what might come out of the estate.  I am told by the wife that a major asset of the estate is the mother’s home and that will have to be sold.  It would seem unlikely that that will be sold within the next few weeks.  Accordingly, there does not seem to be any prejudice in making an order precluding the husband from accessing his entitlements to his mother’s estate pending the determination of this court’s application.

5. The power to make an order lies in section 114 of the Family Law Act 1975 (Cth) (“the Act”). That provision says that the court should only make an order if it is proper to do so. It seems to me to be proper in the circumstances where there is an allegation that money has been taken in contravention of an injunction and where there is now information readily available that the husband may be about to have access to other moneys that might be called upon to compensate if in fact the husband has contravened the orders. I want to stress that I am not making any findings against the husband that he has done anything wrong, I am only making the injunctive orders on the basis of the fact that there is no prejudice to the husband by virtue of the orders I propose to make.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 January 2011.

Associate: 

Date:  15 February 2011