Dinunca and Rhodes

[2009] FamCA 1181

FAMILY COURT OF AUSTRALIA

DINUNCA & RHODES [2009] FamCA 1181

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

APPLICANT: Ms Dinunca

RESPONDENT: Mr Rhodes

FILE NUMBER: MLC 10015 of 2009

DATE DELIVERED: 19 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nikou SC

SOLICITOR FOR THE APPLICANT: Ryan Carlisle Thomas

COUNSEL FOR THE RESPONDENT: Mr Devries

SOLICITOR FOR THE RESPONDENT: Radford Legal

Orders

1. That all outstanding applications are adjourned to the Judicial Duty List at 2.15pm on 9 December 2009.

2. That a copy of these orders and the consequential reasons for judgment be served by the applicant upon L Rhodes by registered post to her last known address.

3. That until further order, all funds received by or on behalf of the applicant and/or the respondent in relation to the Exceptional Circumstances Claim relating to the G Hotel and Rhodes’ of V Business be forthwith paid by either the applicant or the respondent to Messrs Ryan Carlisle Thomas, Solicitors, to be held in an interest bearing account on trust for the parties until further order.

4. That until further order, the said funds remain in trust only to be released upon the written authority of the applicant, the respondent and L Rhodes.

5. That a copy of these orders be served by ordinary post by the solicitor for the applicant upon Centrelink at the local branch level and Rural Finance of Bendigo.

6. That the reasons be transcribed and be made available to all parties.

7. That the costs of both parties be reserved to the return date.

8. That the respondent file and serve any material upon which he intends to rely by 4.00pm on 30 November 2009 including service of a copy of that material upon L Rhodes by registered post.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10015 of 2009

MS DINUNCA

Applicant

And

MR RHODES

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Ms Dinunca on 11 November 2009.  It was put into the duty list on an urgency basis and the respondent has been served and although not personally attended, he has appeared today through counsel.

2. The application seeks urgent injunctive relief.  The assertion by the applicant is the only material that I have to work on.  It suggests that there was a de facto relationship between the parties between 2002 and August 2009.  In the affidavit, the applicant sets out that she has made significant financial and non‑financial contributions.  The asset pool appears to involve a number of corporate entities and a self-managed superannuation fund.  The corporate entities seem to run hotels and another business.

3. I have been told from the bar table by counsel for Mr Rhodes, the respondent, that the issue of jurisdiction is very much a live one.  Just what that means remains to be seen, but there is no argument that on an interim basis the court has power to make orders pending the determination of its jurisdiction.  The material upon which the applicant relies is somewhat sketchy.  It is asserted that the applicant has concerns about the use to which the respondent would put the sum of $70,000, being what might be described as drought relief money provided by the Australian Government through Centrelink.

4. Attached to the affidavit is a number of emails, all of which could be construed in different ways.  The purpose of an injunction can be two-fold.  In this case, however, it is for asset preservation purposes.  To that extent, and without any material from the respondent, it is hard to see what prejudice, if any, he would suffer by me making an injunction until further order relating to the preservation of an asset.  The dilemma in this case appears to be that whilst the parties have substantial capital assets they are also encumbered by substantial liabilities.  So to that extent the true equity position is not known.

5. I suppose one could draw the conclusion that there are financial problems when one is seeking financial assistance from the Australian Government.  In this case Mr Devries on behalf of the respondent does not consent to, nor does he seriously argue against the making of an injunction.  He is not in the position to do so because there is no material before the court at this stage.  The proposed period of the adjournment is some three weeks. 

6. The matter, however, is a little more complex than one would normally see in these cases.  That is because it appears that the respondent still has an unresolved financial issue with a person to whom he is married.  That gives rise to the obvious conflict of financial problems between the applicant in this case and the potential claimant against the respondent arising out of his marriage.  There is no material from the wife of Mr Rhodes, although I am told she has been on notice of these proceedings. 

7. I propose to make orders that the documents be served upon Ms Rhodes and those will include a copy of these reasons.  It goes without saying that the court would urge Ms Rhodes to attend on the next occasion because otherwise her own interests may very well be prejudiced.  If she fails to attend on the next occasion then the Court may presume that she has been provided with natural justice and has chosen deliberately not to participate. 

8. If she chooses not to resolve the issues arising out of her marriage then again the court can presume that she has no interest in those assets in terms of the equity and the court can then determine the matter between the applicant and the respondent if the jurisdiction is there.  However, it would also appear from reading the applicant's material that some of these corporate entities have a connection with Ms Rhodes in which the issues are unresolved.  Again to that extent she needs to participate in these proceedings.  If she does not the court can presume she's not interested.

9. Section 114 of the Family Law Act 1975 (Cth) is the provision that gives rise to the power to make an injunctive order.  A principle objective is to preserve assets and in those circumstances, the court should only make an order where it is proper to do so.  I am satisfied in the circumstances that this is a case where on an interim basis it is proper to make the injunctions. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: 4 December 2009