Elashi and Elbani

[2017] FamCA 604

FAMILY COURT OF AUSTRALIA

ELASHI & ELBANI [2017] FamCA 604

FAMILY LAW – Urgent injunctive relief to stop auction of former matrimonial home – husband did not attend  Court personally – unopposed orders – consent orders – adjourned to judicial duty list

APPLICANT: Ms Elashi

RESPONDENT: Mr Elbani

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1002 of 2017

DATE DELIVERED: 11 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 11 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Colla

SOLICITOR FOR THE APPLICANT: Wainright Ryan Eid

COUNSEL FOR THE RESPONDENT: Mr Lethlean

SOLICITOR FOR THE RESPONDENT: Nanscawen Lawyers

Orders

BY CONSENT IT IS ORDERED THAT

1. That the wife’s urgent application in a case filed 7 August 2017 be adjourned to 6 September 2017 at 10:00 am to the Judicial Duty List.

2. That by 4:00 pm on 21 August 2017 the husband make file and serve his Response to an Application in a Case, his affidavit in reply and any other affidavit material he proposes to rely upon on 6 September 2017.

3. That by 4:00 pm on 1 September 2017 the wife make file and serve any affidavit in reply she seeks to rely upon on 6 September 2017.

4. That the Directions Hearing in this matter listed for 1 September 2017 at 9:30 am be vacated and the applications be adjourned to the Judicial Duty List on 6 September 2017 at 10:00 am.

IT IS ORDERED (WITHOUT OPPOSITION BY THE HUSBAND):

1. That until further order the husband, his servants and agents be and is hereby restrained from selling (privately or by way of auction), further encumbering or dealing with the former matrimonial home at B Street, Suburb C, in the State of Victoria (unless agreed otherwise in writing by the parties via their respective solicitors).

2. That the Solicitors for the applicant wife serve sealed copies of this Order upon the Director of D Agents Suburb E Office, such service to be effected by electronic means.

3. That all extant Orders otherwise remain in full force and effect.

IT IS FURTHER ORDERED BY THE COURT:

1. That pursuant to Section 79 (9) (b) the requirement for the parties to attend a conciliation conference be dispensed with NOTING THAT the parties have had a mediation with the Hon. Peter Young QC.

2. That by not later than 21 August 2017 the husband file and serve an affidavit detailing what steps he has taken or caused to be taken to comply with the notation of the Order made 21 July 2017 apropos notification to his first wife.

3. That my reasons for decision this day be transcribed and when settled placed on the Court file and a copy be provided to the parties.

4. Certify for Counsel.

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 Elashi & Elbani 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 1002 of 2017

Ms Elashi

Applicant

And

Mr Elbani

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as an urgent matter on the application in a case filed on behalf of the wife on 9 August 2017 seeking, amongst other things, to enjoin the husband from selling the former matrimonial home by auction later this month.  The wife’s application  has been served on the husband by being sent to his address for service, being solicitors Nanscawen Lawyers of Essendon who have retained Mr Lethlean of counsel to appear on behalf of the husband today.

2. Ms Colla of counsel appears on behalf of the wife who attends Court and has the services of an interpreter.  The husband does not attend Court.  At the callover, I was informed by Mr Lethlean that he does not know the current whereabouts of the husband but is in a position to take instructions from his instructing solicitors.

3. The application, in very short compass, seeks to stop the proposed sale by auction of the property in which the wife, the husband and their young daughter currently reside.  That is the property at B Street, Suburb C in Victoria.  It is a property of which the husband and his former wife are jointly registered as proprietors.  The husband’s former wife is not a party to these proceedings. The wife did not know of the husband’s first wife’s proprietory interest until after proceedings were instituted in this Court earlier this year.

4. The wife deposes that the proposed sale, the retaining of estate agents and the advertising of the property in the media were not matters previously discussed between herself and the husband or between solicitors acting for them. The husband has taken these steps midway through financial proceedings in this Court.

5. The next Court event was to be a listing before Registrar Field on 1 September 2017.  It was anticipated that on 1 September 2017 the matter would be placed in a list of cases awaiting allocation to a judicial docket for final hearing, or some such. There are currently 244 cases awaiting allocation to a judicial docket. The parties have attended a private mediation with the Honourable Mr Peter Young QC, which mediation failed to resolve all outstanding matters.  That case management has been overtaken by the urgent application in a case now filed on behalf of the wife. 

6. The husband should have an opportunity to put before the Court his response to the application in a case and all and any evidence upon which he relies in relation thereto.  He can do that by 21 August 2017, and then the wife has an entitlement to reply by 1 September 2017.  The adjourned date is the next available date in the judicial duty list on 6 September 2017.

7. On 21 July 2017, a notation was made to an order by Registrar Field which reads as follows:  –

   The respondent notify his ex-wife ([Mr Elbani]) of these proceedings in which the Court is being asked to determine the adjustment of the parties’ property without any reference to any entitlement she may have in such property.  In the event she seeks to be heard in respect to any such entitlement, she should apply to intervene in these proceedings forthwith.

8. I will not comment at this point on the correctitude of the notation but I do observe that there is no proof on the court record that the respondent husband has notified his former wife of the proceedings.  And even if he has, by what means; for instance, is she aware of the precise orders sought by the respective parties?  The husband and his former wife were divorced in 2011 but are still in contact with one another.

9. In the interim, I will make orders which are sought by the wife and not opposed today on behalf of the husband. It is proper, within the meaning of section 114 that I do so. Those who advise the husband sensibly acknowledge that he does not have much choice, not being at Court today and not having availed himself of any opportunity, however brief, to put evidence before the Court in opposition to the urgent order the wife now seeks and not seeking otherwise to be heard today.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 11 August 2017.

Associate: 

Date:  16 August 2017