Graham and Graham

[2011] FamCA 886

FAMILY COURT OF AUSTRALIA

GRAHAM & GRAHAM [2011] FamCA 886

FAMILY LAW – Urgent ex parte limited injunction

Family Law Act 1975 (Cth)

APPLICANT: Ms Graham

RESPONDENT: Mr Graham

FILE NUMBER: DGC 2264 of 2009

DATE DELIVERED: 27 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 27 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barbayannis (Ex Parte)

SOLICITOR FOR THE APPLICANT: Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

UPON THE UNDERTAKING of the wife, given to the Court through her Counsel and until 5.00 p.m. Monday 31 October 2011 that she will pay any loss or damage properly incurred by the husband as a direct result of the ex parte orders made this day, then,

IT IS ORDERED ON AN EX PARTE BASIS:

1. THAT the husband, personally and by his servants and agents be and is hereby restrained until 5.00 p.m. Monday 31 October 2011 from accessing, withdrawing, transferring or in any way dealing with any or all monies deposited in an account with ING Direct in a Savings Maximiser Account Number ...

2. THAT immediately the wife’s solicitors effect service of a sealed copy of this Order personally upon the husband together with a letter advising him of the adjourned hearing date and providing him with appropriate contact details of the wife’s solicitors.

3. THAT forthwith a sealed copy of this Order and a letter of explanation be served upon the proper officer, ING Direct.

4. THAT the Initiating Application of the wife filed with the leave of the Court this day be otherwise adjourned for further hearing in the Judicial Duty List before Cronin J at 10.00 a.m. on Monday 31 October 2011.

5. RESERVE liberty to either party to apply for a transcript of the proceedings of this day.

6. THAT the costs of the wife of and incidental to the hearing this day be reserved to the adjourned hearing date.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

IT IS NOTED that publication of this judgment under the pseudonym Graham & Graham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2264 of 2009

Ms Graham

Applicant

And

Mr Graham

Respondent

REASONS FOR JUDGMENT

1. I will record in the circumstances of this ex parte application that I have read both affidavits relied upon and the annexures thereto.  The matter comes before me having been approved of by Registrar Field, all times having been abridged and the matter having been listed for hearing on short notice and as an ex parte matter.  I am satisfied that counsel appearing for the wife has instructions from his client to give an undertaking for the limited term until 5.00 p.m., 31 October 2011 that his client would pay any loss or damage properly incurred as a direct result of these ex parte orders being pronounced today.

2. As to the merits and propriety of the order I am satisfied in all of the circumstances that an order should be made of limited duration until 5.00 p.m. next Monday, to restrain the husband both personally and by his servants and agents from accessing, disposing of, transferring or dealing with moneys in that numbered ING account, the particulars of which are exhibited to the wife’s affidavit. 

3. On balance and considering the issues and facts deposed to in the material, having regard to the fact that it is ex parte and that the circumstances need be carefully considered and scrutinised for such an order to be made, I am now satisfied on the basis of both affidavits and carefully re-reading the affidavit of the son, Mr B, that this order can be made on this basis and for the timeframe as discussed.  Accordingly I will now pronounce an undertaking and order.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 27 October 2011.

Associate:

Date:  27 October 2011