Gordon and Murphy

[2009] FamCA 659

FAMILY COURT OF AUSTRALIA

GORDON & MURPHY [2009] FamCA 659

FAMILY LAW – CHILDREN – Interim
FAMILY LAW – PROPERTY – Interim

APPLICANT: Mr Gordon

RESPONDENT: Ms Murphy

FILE NUMBER: MLC 4035 of 2009

DATE DELIVERED: 25 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 25 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.M. Salamanca

SOLICITOR FOR THE APPLICANT: Julie Andritsos

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That until further Order the children of the marriage namely H born … September 1998 and N born … January, 2005 live with the wife.

1. That until further Order the Husband spend time with and communicate with the said children by agreement between the parties.

1. That until further Order:-

   (a)The Wife retain the said children’s’ passports and the Husband be and is hereby restrained from removing the said passports from the Wife’s possession and removing the said children from the Commonwealth of Australia;

   (b)The said children be placed on the Airport / Watch List.

2. That until further Order the Wife have the sole use and occupation of the real property situated at and known as S property and the motor vehicle registration number … to the exclusion of the Husband.

1. That until further Order the Husband pay the following:-

   (a)The sum of $500 per week for the maintenance of the Wife;

   (b)The mortgage instalments payable to the  ANZ bank regarding mortgage account number … in the approximate sum of $1,892.39 per calendar month;

   (c)The municipal rates relating to S property;

   (d)All private school, tuition and ancillary fees, including uniform, music, sporting and transport fees relating to H at W School;

   (e)All medical, dental and pharmaceutical expenses relating to each of the children of the marriage;

   (f)The current  life insurance premium of the life policy maintained by the Husband  and he continue to specify the Wife and the two children of the marriage as specified beneficiaries of the life policy.

2. That within 28 days of service of a copy of these Orders upon the Husband as specified in paragraph 4 of the Orders made 29^th May, 2009:-

   (a)(i) the Husband file and serve an affidavit setting out with particularity the movement of funds and / or the disbursal of funds in an amount in excess of $1,000 for each transaction from 1/1/08 to the present date in or out of any account in any financial institution to which the Husband is a signatory whether such account is held within or outside the Commonwealth of Australia;

   (ii) that such transactions relate to the period 1/1/08 to the date hereof.

   (b)The Husband provide an affidavit of documents setting out all discoverable documents pursuant to Division 13.1.2 of the Family Law Rules and in particular Rule 13.04(1) of the Family Law Rules;

   (c)The Husband file and serve any Response and any affidavits in support of same including any affidavit setting out with particularity the movement of funds and / or the disbursal of funds in an amount in excess of $1,000 for each transaction from 1/1/08 to the present date in or out of any account in any financial institution to which the Husband is a signatory whether such account is held within or outside the Commonwealth of Australia filed in accordance with paragraph 6(a)(i) of these Orders.

3. That in the event that the Husband fails to comply with any portion of paragraph 6 hereof, the Wife be at liberty to seek to proceed with her application on an undefended basis.

1. That in the event that the Husband has removed funds from the jurisdiction of the Commonwealth of Australia in any amount exceeding $5,000 he forthwith return such funds to Australia and until further Order they be held in an interest bearing account on behalf of the parties by the Wife’s legal practitioners.

1. That the further hearing of the Wife’s application filed 11^th May, 2009 be adjourned to the Senior Registrar’s List  on the 31^st day of August, 2009.

1. Certify for counsel.

1. Reserve costs of the Wife.

1. Pursuant to S 65DA (2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact sheet and these particulars are included in these orders.

1. Reserve liberty to the Husband to apply.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4035 of 2009

MR GORDON

Applicant

And

MS MURPHY

Respondent

REASONS FOR JUDGMENT

1. Various interim orders have been made in the past, pending the husband being served.  I am told he is living in Afghanistan.  I am satisfied that he does have notice of the proceedings.  He actually employed a solicitor.  That solicitor then filed a Notice of Ceasing to Act on 22 June.  The only contact details the solicitor gives for his client is an email address.  It is the same email address from which the husband has been communicating. 

2. I am satisfied that the methods set out by the Senior Registrar previously to ensure that the husband had notice of these proceedings has proven successful.  In the circumstances, without him being present or represented to oppose the orders that are sought, I am comfortable making the orders as sought on an interim basis. 

3. Mr Salamanca for the wife has told me that the husband will be returning to Australia in August.  I will try and find a date now for the case to go ahead in August.  The husband will be able to give the court his side of the story at that point, but in the meantime these are reasonable orders.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  25 June 2009