Galvin and Galvin

[2009] FamCA 16

FAMILY COURT OF AUSTRALIA

GALVIN & GALVIN [2009] FamCA 16

FAMILY LAW – INJUNCTIONS – Interim property injunction

Family Law Act 1975 (Cth)

APPLICANT: MS GALVIN

RESPONDENT: MR GALVIN

FILE NUMBER: MLC 479 of 2009

DATE DELIVERED: 21 JANUARY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 21 JANUARY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS LESLIE

SOLICITOR FOR THE APPLICANT: KENNA TEASDALE LAWYERS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

UPON THE UNDERTAKING of the wife given to the Court this day that if the husband subsequently is found to have suffered loss or damage arising by virtue of these orders as a result of the conduct or default of the wife she will then pay such damages as assessed and, on that basis

IT IS ORDERED:

1. THAT all times necessary to abridged to permit the matter to be heard this day as a matter of urgency and on an ex parte basis.

2. THAT pending further order the husband personally, and by his servants and agents and X Pty Ltd be and are hereby restrained by way of injunction from disposing of, transferring or in any other way dealing with the term deposit, and any interest earned thereon and held in National Australia Bank account no. … (at 330 Collins Street, Melbourne).

3. THAT otherwise the application for final orders and an application in a case filed with the leave of the court this day be adjourned for hearing in the Judicial Duty List at 10.00 a.m. on Wednesday 28 January 2009.

4. THAT forthwith the wife’s solicitors serve upon the husband and X Pty Ltd the following documents:

   (a)         a sealed copy of these orders;

   (b)a stamped copy of the application for final orders and application in a case together with the wife’s affidavit and Form 13 financial statement filed in support thereof;

   (c)the extempore reasons for judgment (when available).

5. THAT the solicitors for the wife forthwith serve upon the proper officer, National Australia Bank, 330 Collins Street, Melbourne a sealed copy of this order with a detailed letter of explanation requesting the bank to hold all monies and interest pending further order of the court.

6. THAT the wife’s costs of the appearance at court this day be fixed in the sum of $930 but the question of payment of those costs, and any other costs reasonably incurred by or on behalf of the wife be reserved to the Judge hearing this matter on the adjourned hearing date.

7. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED:

A.THAT the wife has completed a written form of undertaking as to damages and that document will be marked exhibit “W1” and will be annexed to the orders pronounced this day and otherwise retained upon the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 479 of 2009

MS GALVIN

Applicant

And

MR GALVIN

Respondent

REASONS FOR JUDGMENT

1. The matter of Galvin is urgently listed before me on an ex parte basis in the Judicial Duty List at 2.15 p.m. this day.  Ms Leslie, solicitor from the firm Kenna Teasdale, appears for the wife.  There is of course no appearance by or on behalf of the husband as he does not know of this application.  The Registrar this morning abridged times to enable an ex parte hearing of the urgent interim application before the court.  The wife has caused to have filed an application for final orders and an application in a case.

2. Whilst various interim orders are sought, I am concerned at this stage only with the orders sought in paragraphs 1, 2 and 3 thereof.  They seek for times to be abridged to enable the matter to be heard ex parte and for an interim restraining order to be pronounced whereby the husband, personally and by his servants and agents, are injuncted from disposing of moneys currently on term deposit with the National Australia Bank, 330 Collins Street, Melbourne branch.  Those moneys are held in the name of X Pty Ltd.

3. In support of the urgent application, the wife has filed a Form 13 financial statement and an affidavit with various annexures to the affidavit.  I have read and considered the evidence contained in those documents.  The exhibit "KAG1" to the affidavit of the wife is a company extract setting out the information held with ASIC in respect of the company X Pty Ltd.  The principal place of business of the company is C Street in S.  Its sole director is the husband, who holds the one issued share.  I am therefore satisfied that an order can appropriately be made restraining any dealings with money in this corporate entity on the basis that it is solely managed, controlled and directed by the husband. 

4. The facts of, and related to, the marriage and the very recent separation on 15 January 2009 are detailed in the affidavit.  There is one child of the relationship, born in November 2005.  She is now three years of age and lives with the wife, who has been primarily responsible for her care and upbringing.  The affidavit deposes to the sale of real property previously owned and currently, at least to the knowledge of the wife, neither she nor her husband or any company of or associated with them own or control real property in Australia, or indeed elsewhere.

5. The business arrangements of the husband and wife, and more particularly of the husband, are identified in paragraphs 12 to 18 of the wife's affidavit.  The wife deposes to the receipt by the husband or his corporate entity of $3.6 million of a larger sum of money and these moneys were invested with the  National Australia Bank on a term deposit.  The wife has recently accessed that term deposit account and, as at 16 January 2009, that sum of approximately $3 million is still deposited in that account.  Interest of $120,000 is expected to be paid on the maturity of that six-month term investment on 29 January 2009.

6. As to the urgent issues of risk, the wife details in paragraphs 16 to 18 inclusive, and thereafter paragraphs 23 and 24 of the affidavit, the various financial threats that have been made towards her by the husband, or otherwise the prior arrangements for the husband to set up a virtual office offshore, in Singapore.  The wife has deposed to the risk of the matrimonial assets being dissipated in paragraph 27 and thereafter.  Her conclusion is that the husband is prepared to move resources and structure his affairs to minimise or avoid any claim as against him.  I observe that he holds both an Australian and an American passport.

7. Clearly the primary asset of the marriage is the cash moneys now invested with National Australia Bank in the account number specified to the court this day.  The order that is urgently sought is to restrain the disposition of those moneys by or on behalf of the husband and the company X Pty Ltd.  The requirement for the making of an interim injunction is that there is an urgent need to act and no other remedy is suitably or conveniently available.  I accept the wife's evidence, although of course I have knowledge it is yet to be tested.  There is a substantial obligation to the wife to make full and proper disclosure of all matters known to her of and surrounding the financial issues before the court.

8. I have called the wife to give evidence and she has supported her affidavit and identified these invested term-deposit moneys as the bulk of any matrimonial asset available.  She has reiterated her very real concern that moneys could or would be moved and dissipated and that she, and accordingly the child of the marriage who lives with her, would be financially disadvantaged.  I am not required to make any ultimate determination; I need only be satisfied that there is a proper basis for making an injunctive order.  In particular in this case, a matter of considerable comfort to the court is that the term deposit does not conclude until 29 January 2009.  That is next Thursday.  I will ensure that the return date of any order made this day is before that date, that is on 28 January 2009, so the matter will be before the court for further hearing prior to the conclusion of the six-month deposit term. 

9. The annexed material highlights that the husband likely solely controls X Pty Ltd, but I leave to the wife's solicitors to determine whether that company should be joined as a party in the proceedings, given that it holds the bulk of assets.  That may be a more appropriate form of proceeding hereafter.  I am satisfied that there is no financial detriment to the husband to injunct the moneys held in that National Australia Bank account until the further hearing date, which I will fix for 28 January 2009.  I conclude that it is reasonable and proper to mitigate any risk and preserve and protect assets and that the circumstances before the court in affidavit form do meet the standard required to pronounce an interim injunction.

10. I have specifically required the wife to complete a form of undertaking as to damages and, from the witness box, she confirmed her knowledge and understanding of such an undertaking.  The specific undertaking is that if there is any subsequent loss or damage incurred by the husband by virtue of orders made this day, and if it is due to any default or conduct on behalf of the wife, then she undertakes to pay any such quantum of damages as may be imposed and assessed.  I accept that undertaking and I am wholly satisfied the wife is aware of the consequences thereof.  It will be necessary to serve this order forthwith upon the husband and the National Australia Bank.

11. Given that the husband and wife had recently been in court, in the Magistrates' Court, on intervention orders, it is also appropriate to serve the solicitors who acted for the husband in those proceedings.  This is Wantrup and Associates.  I will reserve the question of the wife's costs of this day.  What I intend to do is to fix the costs at $930 which I find to be just and proper and reserve only the question of the appropriate payment or otherwise thereof.  I will have these ex tempore reasons transcribed and placed upon the court file and made available to the parties.  They should of course be also served upon the husband and his solicitors as soon as they are practicably available.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: