Drury and Drury

[2008] FamCA 331

FAMILY COURT OF AUSTRALIA

DRURY & DRURY [2008] FamCA 331

FAMILY LAW  -  PROPERTY  -  interim injunctions re investment properties, business assets and family trust

Family Law Act 1975 (Cth)

HUSBAND: Mr Drury

WIFE: Mrs Drury

FILE NUMBER: MLC 3298 of 2008

DATE DELIVERED: 30 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 30 April, 2008

REPRESENTATION

THE HUSBAND: In person

COUNSEL FOR THE WIFE: Ms P.J. Treyvaud

SOLICITOR FOR THE WIFE: Holt & MacDonald Pty. Ltd

Orders

1. That until further order, the husband be and is hereby restrained by injunction from :

   (a)selling, encumbering, further encumbering, or in any way dealing with the following properties :

   (i)E property;

   (ii)B property;

   (iii)G property;

   (iv)S property;

   (v)Z property;

   (vi)H property;

   (vii)R property;

   (viii)M property;

(b)selling, encumbering, further encumbering, or in any way dealing with the shares in L Pty. Ltd. or D Pty. Ltd., together with any of the underlying assets in either company except in the ordinary course of business;

(c)selling or disposing of any gold bullion or other money or coin collection;

(d)selling, encumbering, further encumbering or in any way dealing with the assets of the Drury Family Trust.

1. That on or before 23 May, 2008 the husband file and serve :

   (a)a response to the application filed by the wife on 14 April, 2008;

   (b)a statement of financial circumstances;  and

   (c)all affidavits on which he intends to rely.

1. That on or before 30 May, 2008 the wife file and serve any further affidavits on which she intends to rely.

1. That on or before 23 May, 2008 the husband make all necessary financial disclosure included, but not limited to, disclosure required pursuant to Rule 12.02 of the Family Law Rules 2004.

1. That the application filed by the wife on 30 April, 2008 and any response filed pursuant to this order be otherwise adjourned for hearing on 3 June, 2008 at 10:00 am. in the long interim hearing list. 

1. That the wife’s costs of this day be reserved, and fixed at $1,500.

1. That the reasons for judgment this day be transcribed and copies made available to the parties. 

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3298 of 2008

MR DRURY

Husband

And

MRS DRURY

Wife

REASONS FOR JUDGMENT

1. This is the first return date of an application filed by the wife on 14 April 2007.  In it she sought final property orders and spousal maintenance.  She also sought a number of interim orders.  She sought that the husband vacate the former matrimonial home and that she have sole use and occupation of it, with him paying the rates and insurance.  She sought interim spousal maintenance.  She also sought a number of injunctions referrable to six investment properties and two businesses (L Pty Ltd and D Pty Ltd) and injunctions going to other assets.

2. The husband appears today and is not legally represented.  He was served on 18 April.  It is clear from a letter tendered by the wife that solicitors acting for her initially wrote to the husband on 19 July, 2007 seeking to negotiate a property settlement.  They received no response to that letter.  They wrote to him again on 25 February 2008 indicating that the wife was keen to resolve matters, and sought to move back into the former matrimonial home.  In that letter they set out the documents he would be required to disclose in any proceedings, or before any settlement could be reached.

3. The husband has not sought any legal advice.  He initially said he proposed acting for himself.  He has subsequently spoken of obtaining advice, and I have encouraged him to take that course. 

4. In terms of background the parties married in 1978 when they were very young.  The wife was 16 and the husband 20.  She is now 45 and he is 50.  They have three adult children.  The elder son, who is 26, is in employment and living, as I understand it, in the former matrimonial home.  The daughter is 24 and living independently.  Their youngest son is at university in Queensland.  He is 20 and the father has told me today from the bar table that he is supporting the youngest son there.

5. The husband has been a builder and financial statements and information must be provided about L Pty Ltd, D Pty Ltd and the family trust.  The only evidence before the court at the moment is the evidence of the wife and it is clear that the husband disputes aspects of that evidence.

6. The wife’s evidence is that they separated under the one roof in June 2006 but stayed there living in the same house, in an unhappy truce, until 4 January 2008, when she moved out.  She is presently living in the home of her brother and sister in law, paying $100 a week board.  Their children are also in that home and it is not a long-term proposition.  The husband has remained in the former matrimonial home in E.

7. The wife resigned as the secretary of the two companies in June last year.  The husband has told me that shortly prior to resigning she withdrew as a signatory to one or more bank accounts.  He has also told me that there is a sum of $584,000 sitting in a term deposit in Bendigo Bank.  That account is now in his name only, for reasons he advanced and it is put that those funds would be accessed to make ATO and other necessary payments.

8. The reality is that the court must adjourn the matter to give the husband time to prepare material and I will do that.  The adjourned date will be 3 June, which will give him plenty of time to obtain advice, make proper financial disclosure and file a response, financial statement and affidavit. 

9. In the interim, I do propose to enjoin the husband from dealing with the eight rental properties in issue and with a number of other assets.  The husband has told me that the investment properties are just breaking even; on his account, they are not engendering any significant profit.  The wife’s evidence is that all the properties are unencumbered.  Nothing in the evidence suggests that the husband intends to act improperly with these assets.  However, given that the adjournment is required because he has not filed material or made financial disclosure, and given that (on his own account) injunctions relating to the investment properties, companies, trust and other assets will not prejudice him (he will be able to deal with the business assets in the ordinary course of business) the wife is entitled to that protection until further order.  An injunction restraining dealings with matrimonial assets other than in the usual course of business cannot adversely affect him or any of the entities, and it can be reconsidered when further material is before the court.

10. I will reserve the question of the wife's costs of today, which I fix at $1,500.

I certify that the preceding
10 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of         2008.

Associate.