Ghandour & Ghandour
[2023] FedCFamC1F 112
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ghandour & Ghandour [2023] FedCFamC1F 112
File number: MLC 1780 of 2023 Judgment of: BENNETT J Date of judgment: 24 February 2023 Catchwords: FAMILY LAW - PROPERTY - Injunction- where the wife makes an urgent ex-parte application for an injunction to preserve assets pursuant to section 114(1)(e) - where injunction also sought to prevent the husband from instituting proceedings in Country C. Legislation: Family Law Act 1975 (Cth) ss 90AF(2), 114(1)(e)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 pt 5.2
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 24 February 2023 Place: Melbourne Counsel for the Applicant: Mr Fudim Solicitor for the Applicant: Sayer Jones Counsel for the Respondents: Ex-Parte ORDERS
MLC 1780 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GHANDOUR
Applicant
AND: MR GHANDOUR
First Respondent
MR B GHANDOUR
Second Respondent
order made by:
BENNETT J
DATE OF ORDER:
24 FEBRUARY 2023
THE COURT ORDERS THAT:
1.That pursuant to Rule 5.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 all times be abridged to enable an urgent hearing of this matter on an ex parte basis.
2.That the applicant wife be excused from filing a certificate given by a Family Dispute Resolution Practitioner pursuant to Section 60I of the Family Law Act 1975.
3.That the applicant wife’s legal representatives serve a copy of this Initiating Application and supporting affidavit of the wife sworn 23 February 2023 filed herewith, together with a copy of this Order by personal service on the first respondent husband.
4.That until further order the first respondent husband MR GHANDOUR born 1979 be and is hereby restrained by injunction from leaving or attempting to leave the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the respondent husband on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said husband’s name on the Watch List until the Court orders its removal.
5.That a copy of this Order be sent electronically immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia.
6.The first respondent husband be restrained, by injunction, from causing permitting or suffering the withdrawal, transfer or other dealing with any of the funds in the bank account the first respondent holds with National Australia Bank being BSB …, Account Number …01 (“the NAB account”), or any other accounts in the name of the first respondent, held solely or jointly with third party(s), or under the control of the first respondent husband, without the prior written consent of the applicant wife.
7.The first respondent husband do all acts and things to transfer the balance of his compensation payout received by him in December 2022 or thereabouts, to the applicant wife’s lawyers’ trust account within 24 hours of service upon him of this Order, with such funds to be placed in interest bearing account at call and withdrawn only with the prior written consent of both the husband and the wife or further order of the court.
8.Until further order the husband by himself his servants or agents be and is hereby restrained by injunction from causing, permitting or suffering his interest in the former family home at E Street, Suburb F to be disposed of, borrowed against or dealt with in such a way as to reduce the value of the husband’s equity in the said property.
9.Pursuant to Section 114(1) of the Family Law Act 1975, the first respondent husband be restrained, by injunction, from filing family law or like proceedings in Country C.
10.That within seven (7) days of the making of this Order, the first respondent husband provide to the solicitors for the applicant wife a copy of statements of all bank accounts and details of any safety deposit box(es) within or outside of Australia held by him jointly or individually, from December 2022 or thereabouts to the present date, and details of all transactions in relation to any interest held by him in such bank accounts and items in the safety deposit box(es).
11.The Applicant forthwith serve a sealed copy of these Orders on the Proper Officer of the National Australia Bank and Australia and New Zealand Banking Group Limited electronically and contemporaneously with doing so provide the said proper Officer with information relevant to locating accounts in which the first respondent husband has, or has had, an interest including (but not limited) to providing a copy of the affidavit of the applicant wife sworn 23 February 2023
12.The Proper Officer of each bank referred to in the preceding paragraph of this Order:
(i)acknowledge receipt of this Order;
(ii)inform the solicitors for the applicant wife of the current balance of the account(s) and details of recent transactions on the accounts;
(iii)permit no transactions on the accounts until further Order;
(iv)and take no steps whatsoever to alert the first respondent husband to the existence of this Order until advised by the solicitors for the wife that it is safe to do so or further order of the Court.
13.Liberty be reserved to the named banks (or either of them) to seek to vary or set aside paragraph 12 of this Order or as it (or they) may be advised.
14.Liberty be and is hereby reserved to the wife to make application on short notice and ex parte for tracing orders in relation to funds dealt with by, or at the direction of, the second respondent husband.
15.The husband and the wife be and are hereby at liberty to produce a copy of this Order, documents filed in this proceeding or transcripts of or reasons for decision in this proceeding in any state court in connection with any proceeding for a domestic violence order for his or her personal protection or to oppose such an order being made against him or her.
16.That the text messages commencing 12:33 (two pages) from the telephone of the applicant wife to her solicitors concluding with a message “he’s forcing me to stay home I am not allowed to leave…” be marked Exhibit “W1” and remain on the Court file.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ghandour & Ghandour has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me as an urgent interim application seeking injunctive relief. I read the documents at approximately 12 noon and indicated that I would proceed immediately with the application on an ex parte basis. My chambers were informed by the solicitors for the applicant wife that she would need until 2.15 to be able to attend court. When the matter commenced this afternoon, I was informed that the wife was not going to be in attendance, because she and the husband are in the house, the husband is suspicious that she has done something to his detriment, and that he will not permit her to leave. It was stated by Mr Fudim that his client was being held “hostage” in the house.
I have given the wife’s practitioners leave to amend the orders sought by them to restrain the husband also from leaving Australia, pending knowledge that certain funds have been secured, and to allow the parties or either of them to be able to use documents filed in this proceeding or emanating from this proceeding, such as orders or transcripts, in any domestic violence proceedings in the state jurisdiction. As will become apparent, I think that this matter presents a potentially explosive situation where the safety of the mother and the children and, indeed, the father may be at risk.
The wife relies upon her affidavit, sworn 23 February 2023, and it is from that document that I will take a relevant history of the parties’ relationship.
The mother is 34 years old, born in Australia and currently not employed outside the home. She is in good health and in receipt of a Family Tax Benefit and carer’s allowance from Centrelink in the sum of approximately $1113 per week for herself, the five dependent children and the husband.
The husband is 43 years of age, born in Country C and now an Australian citizen, as well as a citizen of Country C. The husband has been in receipt of WorkCover and Centrelink payments, although since receiving a lump sum benefit, the wife believes he is no longer eligible for periodic payments of that nature. The wife deposes that the husband is in good health, save that in 2014, he sustained an injury in the course of his employment.
The husband and wife married in City D, Country C in 2007. They remained in Country C until they moved permanently to Australia in 2010. The wife deposes:
The relationship was tumultuous with periods of separation, however, I say we separated on a final basis in 2021 and have remained living together under the same roof at the former matrimonial home at [E Street, Suburb F], in the state of Victoria.
There are five dependent children of the marriage, namely; V, aged nine; W, aged eight; X, aged six; Y, aged four; and Z, aged two.
V, W and X attend G School. Y attends four year old kindergarten and will commence Prep in 2024. The wife deposes that the children are in good health, save that X has speech delay and she has observed some behavioural concerns, including angry outbursts. The wife deposes that:
The relationship between [Mr Ghandour] and me was fraught with family violence, including abuse, financial control, intimidation, and threats to kill me and my family members. During the marriage, [Mr Ghandour] frequently made comments to me, such as: “If we were in [Country C], I would kill you” and “If you ever leave, I’m gonna get your dad killed”. My dad lives in [Country C]. I have tolerated this situation because of mine and the children’s dependence on [Country C], and because I am in such strained and difficult financial circumstances.
Today, Mr Fudim, of Counsel, appears on behalf of the wife. He informed me from the bar table that the wife has instructed his instructors that there are weapons in the family home at which, as I indicated, the husband and wife and children are currently located. I mentioned that there was no reference to weapons in the wife’s affidavit, and Mr Fudim confirmed that those instructions were not forthcoming until after the wife swore her affidavit yesterday and explained her inability to get to court today.
The application is principally directed to the freezing of the husband’s WorkCover claim payout. Relevantly, the wife deposes as follows:-
In 2014, [Mr Ghandour] suffered a work related injury. He commenced a Workcover claim afainst his employer, which settled and was finalised by way of terms of settlement late last year. The outcome of the claim was for [Mr Ghandour] to be paid funds of $500,000 for pain and suffering, and loss of earnings. After the payment of legal fees, [Mr Ghandour] received nett (sic) funds of approximately $430,000 (“the compensation monies”).
I understand that [Mr Ghandour] received the compensation monies sometimes in January 2023. The funds were held in trust by his solicitors, [J Lawyers], and thereafter, were deposited to a bank account with National Australia Bank (“the NAB account”) in [Mr Ghandour’s] name, and of which he has sole control.
As at 23 January 2023, the balance of the NAB account was $383,428.52, and the compensation payout had already been depleted.
The mother further deposes, in relation to the urgency of the application:-
13.1 On or around 15 February 2023 after returning from [Country C], [Mr Ghandour] removed my online access to the NAB account by changing the password. I no longer have access to [Mr Ghandour’s] account, and am unable to see any activity on the account. I do not know what the current balance of the account is, although I estimate he has dissipated approximately $30,000 to his father since 23 January 2023 based on discussions I have overheard between [Mr Ghandour] and his father when they have spoken on the phone. I am aware of one other account held by [Mr Ghandour] with ANZ Bank and of which he has sole control. I do not have access to any of [Mr Ghandour’s] bank accounts. [Mr Ghandour] and I do not have any joint bank accounts, not do we hold any other assets jointly.
13.2 I hold serious concerns [Mr Ghandour] has already transferred significant funds to his father, [Mr B Ghandour], who resides in [Country C]. I am also concerned he intends to transfer additional funds for the purpose of building a property in [Country C]. My concerns arise from the following:
(a) On 21 February 2023, I overheard a telephone discussion between [Mr Ghandour] and his cousin, in which [Mr Ghandour] advised he intended to transfer $25,000 to his father this impending Monday (27 February 2023) via [H Finance].
(b) [Mr Ghandour] has informed me that it is his intention to use his compensation monies to fund the construction on the property in [Country C]. In or around [mid-2021], [Mr Ghandour] acquired a property in [Country C] using funds of $60,000, provided by my mother. The funds were advanced by my mother as a loan, on the understanding they would be repaid. [Mr Ghandour] is refusing to repay the loan to my mother. The property in [Country C] is registered in [Mr Ghandour’s] name. It currently consists of vacant land, and [Mr Ghandour] is seeking to develop the land by constructing a residential dwelling. I am unable to obtain any further information or details about the land or the construction, as parts of [Country C] are currently in lockdown due to [civil unrest].
(c) [Mr Ghandour] has conveyed to me it is his intention to leave Australia once construction of the property in [Country C] is complete. He has said words to the effect: “It’s better to live in [Country C], and I’m going to go live there whether you like it or not”. He also threatened to take the children with him. Several relatives have also made comments corroborating [Mr Ghandour’s] threats that he will leave me, including one of our cousins. [Mr Ghandour] has planned to travel to [Country C] in or around April this year to finish construction.
(d) [Mr Ghandour] has informed me on multiple occasions over the past couple of weeks that he has already conducted several international money transfers to his father in [Country C] using [H Finance]. It is my understanding he has already withdrawn approximately $50,000 to $60,000 in cash prior to going to [Country C].
13.3 The quantum of the balance of funds in the NAB account (which I estimate is approximately $350,000) is not much more than the equity available to [Mr Ghandour] and me in the former matrimonial home.
Further, the wife deposes that:-
13. 6 To the best of my knowledge, [Mr Ghandour] and I have interests in the following assets and liabilities
(a) [E Street, Suburb F]: E$550,000
(b) Loan secured by Mortgage in favour of ANZ Bank: (E$260,000)
(c) Property in [Country C]: NK
(d) Compensation monies: E$350,000
(e) Other bank accounts in [Mr Ghandour’s] name: NK
(f) Bank accounts in my name: Negligible
(g) [Motor Vehicle 1]: E$10,000
As a general proposition, parties are entitled to procedural fairness and have notice of orders sought against them or their property. This is a significant right in our legal system and not to be interfered with lightly. However, there are some cases, such as this case, where the process of according procedural fairness may lead to an injustice being perpetrated. I say “may” in every sense of the word, because I have not heard from the husband or from his father. I do not know their side of the story.
It is often said that every story sounds convincing until you hear the story of the other side. I have an open mind. I have not prejudged what either respondent has done or may do. However, it is incontrovertible that there is the potential for the husband to defeat the relief sought by the wife if the husband or those who advise him or to whom he is connected have prior knowledge of the wife’s application for the orders that I make today.
Section 114(1)(e) of the Family Law Act 1975 provides that in proceedings taken by the wife for alteration of property interests, the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including an injunction relating to the property of a party to a marriage. The funds at bank and the family home are property in respect of which the wife seeks an alteration of interest vis-à-vis herself and the husband.
At paragraphs 14 and 15 of the wife’s affidavit, she deposes that:-
I have not taken any steps to alert or notify [Mr Ghandour] of my intention to commence these proceedings. This is because [Mr Ghandour] has expressly informed me of his intentions to secrete the remaining funds, and leave me with nothing. [Mr Ghandour] has also threatened to sell the former matrimonial home, and it is in this context that I lodged a Caveat on the property on 24 January 2023.
I am concerned that if I give [Mr Ghandour] notice of these proceedings that he will transfer the funds to accounts unknown to me, or dissipate them to curtail my ability to preserve them, or otherwise pay innocent third parties, such as builders in [Country C], which will cause the funds to become incapable of recovery. My position would be damaged, and my application would otherwise be rendered nugatory.
Part 5.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sets out the prerequisites for applications without notice, such as this application. Notably, the wife does not allege that the husband has breached any previous orders. There are no orders. There have been no proceedings until this proceeding with which I now deal. The wife does not know if the husband has a Melbourne lawyer; no notice has been given to any legal representatives acting for or on behalf of the husband. I am not aware of any hardship, danger or prejudice to the husband or a third party if interim injunctions are made.
I am satisfied that it is proper, within the meaning of section 114(1)(e) for me to make orders preserving funds at bank and the family home until such time as the husband can be served and be before the court to be heard, that is, to be given the opportunity to tell his side of the story. I am satisfied that shortening the time for service of the wife’s urgent application for injunctive relief and allocating an urgent listing of the application once it is served on the husband would not be a more appropriate course to take than allowing the matter to proceed ex parte this afternoon.
However, I am mindful to maintain the injunctions only for so long as is necessary for the wife, and those who advise her, to ascertain the whereabouts of the proceeds of the husband’s claim for work-related injuries compensation and for appropriate arrangements to be made to preserve those funds until a final alteration of property interests is determined by this court, including to reflect any consensual resolution to which the parties come without the need for any contested hearing.
Rule 5.11(b)(7) requires the applicant wife to make full and frank disclosure of all facts relevant to the application, including her capacity to give an undertaking as to damages. The wife, through her solicitors, proffers an undertaking. I am informed from the bar table that they have instructions to give the undertaking on behalf of their client. The applicant undertakes to submit to such order, if any, as the court may consider to be just for the payment of compensation, to be assessed by the court or as it may direct, to any person, whether or not a party, affected by the operation of this order. I mark the written form of undertaking Exhibit “W2” and direct it remain on the court file. I accept the undertaking.
The wife also seeks to restrain the husband from issuing proceedings in Country C. The natural forum for proceedings between these parties appears to be Australia. The parties are here, the property is here. The husband and wife have lived in Australia for the majority of their married life, both citizens of Australia. I do not know whether the wife is a citizen of Country C. The husband and wife married in City D in 2007 and moved to Australia in 2010. All five children were born in Australia, starting with V in 2013 and concluding with Z in 2020. Evidence relating to the various contributions of the husband and wife under section 79 of the Act, will necessarily be in Australia together with evidence about section 75(2) factors. Insofar as the husband and wife have property outside Australia, this court has extra territorial jurisdiction and can otherwise take such property into account in financial proceedings and the determination of any alteration of financial interests between them.
It seems to me that the utility of the order now sought by the wife is to a court outside Australia, with the Federal Circuit and Family Court of Australia Division One is a superior court of record and appropriately seized of this matter. On balance, I am persuaded that it is appropriate to make the order today, but, of course, I will reconsider it when the husband comes forward and is heard by the court.
The husband should not be able to leave Australia until the funds of bank are secured. Interfering with the person’s freedom of movement is a serious step also not to be taken lightly. However, depending on the husband’s cooperation, this order would need to last only for a short time and providing the funds are secured, it may be that his freedom of movement is unfettered.
The wife seeks orders against the husband’s father, in particular, she describes at paragraph 16.7 of her affidavit, the following:
That my father in law also be restrained by injunction from withdrawing, transferring or otherwise dealing with any of the funds transferred by [Mr Ghandour], since receipt of the compensation payout, pending further Order of the Court AND THAT my father-in-law do all things to pay funds transferred to him by [Mr Ghandour] to my solicitors’ trust account, with such funds not to be released without the prior written consent of both parties.
Section 90AF(2) provides that in proceedings under section 114, such as this case, the court may make any other order or grant any other injunction that directs a third party to do a thing in relation to the property of a party to the marriage or alters the rights, liabilities or property interests of a third party in relation to the marriage. However, that power is preconditioned on the court being satisfied of the matters described in section 90AF(3) and (4).
The wife’s application and evidence in support is not directed to those prerequisites. The wife does not even know the address of her father in law. She seeks, inter alia, that she be able to effect substituted service on the husband’s father by serving the husband. If the wife’s case is that the husband is siphoning funds off to his father in order to defeat or minimise her entitlement to an alteration of property interest (and I stress that I make no finding to that effect), the husband is hardly a reliable person to bring these proceedings and any consequent orders to the attention of his father because to do so may well be to his own (the husband’s) detriment. The husband’s father is joined to the proceedings by having been named as the respondent and served with the proceedings (see rule 3.03(1)).
On balance, I will make the balance of the orders more or less as sought, and I intend those orders to operate for a short period of time, being the period until the husband comes before the court and explains how he proposes to deal with these property interests until such time as there can be a final hearing in this court. Of course, the husband will have liberty to apply to set aside or vary this order or as he may be advised prior to the early adjourned date if he wishes to do so.
I will appoint the adjourn date of next Tuesday.
Finally, but very significantly, I have grave concerns about potential impact of these orders, if not, the general escalation of family violence within the family home in which the husband, wife and five children are located. As indicated, I was told that the wife considers that she is not at liberty to leave the home today. Because she spent most of yesterday with her solicitors and in preparation for these proceedings, she says that the husband’s suspicions have been raised and he is not permitting her to leave the home. There is also the belated instructions in relation to weapons.
That is probably the purview of the State jurisdiction which has, at its ready disposal, the services of the Victoria police. I have made an Order that each party be at liberty to use any documents in these proceedings in State courts. These reasons for decision will not be available until early Monday morning. I have notified the Marshall of the court of the potentially dangerous position of the wife in respect of which I obviously do not have all the facts.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 28 February 2023
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