GRANGE & GRANGE

[2012] FamCA 678

FAMILY COURT OF AUSTRALIA

GRANGE & GRANGE [2012] FamCA 678

FAMILY LAW – PRACTICE AND PROCEDURE – Oral application made by the mother to broaden Family Violence Order or Parenting Orders - Application dismissed - Leave granted for the mother to issue subpoenas – Flagging Orders made in respect of father’s superannuation fund - Proceedings transferred to Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Grange

RESPONDENT: Mr Grange

FILE NUMBER: CSC 787 of 2008

DATE DELIVERED: 2 July 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 2 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

1. The applicant mother be given leave to issue subpoena (returnable to the Federal Magistrates Court) to discover the father’s assets and financial position, such subpoenas to issue to:

   (a)    the Commonwealth Bank;

   (b)    St George Bank;

   (c)    Superannuation Fund S; and

   (d)    Superannuation Fund G.

2. In accordance with s90MU(1)(a) of the Family Law Act, the trustee of Superannuation Fund G member no. …21 is directed not to make any splittable payments without the leave of this court.

3. In accordance with s90MU(1)(b) of the Family Law Act, the trustee of Superannuation Fund G member no. …21 notify the court and the wife of the next occasion that a splittable payment for Mr Grange becomes payable.

4. The period required in order 3 above commences fourteen (14) days prior to the next occasion that a splittable payment to Mr Grange becomes payable and ceases fourteen (14) days after that occasion.

5. The operative time in respect of the flagging order is four (4) working days from the date of a copy of this sealed order being served on the trustee of the fund.

6. The oral application for orders broadening the Family Violence order or parenting orders be dismissed.

7. These proceedings be transferred to the Federal Magistrates Court to a date to be fixed.

   IT IS DIRECTED

8. A copy of the reasons for these orders be taken out and placed on the court file.

   IT IS CERTIFIED

9. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Grange 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 CAIRNS

FILE NUMBER: CSC 787 of 2008

Ms Grange

Applicant

And

Mr Grange

Respondent

REASONS FOR JUDGMENT

1. This is an application which was urgently listed before me today after Ms Grange, the wife, came before the Registrar of this Court earlier today.  It was listed before me in relation to the property matters in that the wife asserts that Mr Grange, the husband has not participated in the property proceedings.  The wife said she was trying to identify where significant assets were, having asserted that the husband had taken assets of the family and assets, particularly assets of the children, and I will deal with those later in these reasons.  The wife also said that she wanted orders for the personal protection of herself and the children.  There was no application before the Court.  There was no written documentation supporting her assertions.  However, I asked the wife to give evidence so that I could find out what the concerns were.

2. The wife’s evidence was that the husband had been living outside the State of Queensland but had returned and sent her a text, apparently in breach of a family violence order, saying that he wanted to see the children.  He made no threats to her, but no threats in domestic violence matters need to be made sometimes, it is simply the fact that somebody is around and reflecting on their past history.  The wife asked for an order as it were to prevent the father from coming within 500 metres of the children at home or at school.

3. The wife tells me that she has made a copy of my order of 21 May available to the principal of the children’s school, or the principals of the children’s schools and will make available those principals a copy of the varied domestic violence order.

4. It seems to me that there is as much protection in the form of court orders in place as there can be at the present time and the solutions for the wife are not to be found within this Court that I can identify at the present time.  The solutions seem to be me to fall into a number of areas.  Firstly, to report to the police the alleged breach and I understand that has been done.  Secondly, to speak to some of the violence protection agencies to consider whether her current accommodation is sufficiently safe for her to remain there for the short term at least.  Thirdly, is to get help managing the trauma which this party is clearly suffering.

5. The only orders that I could possibly put in place, would be a variation of the domestic violence order to include the younger three children, however, they are, under orders made by me, protected as much as they realistically can be at present.  The second is to make my orders to the effect that the husband can be arrested without warrant in the event of a breach of the order.  I had contemplated that, however, the evidence before me is that there is already a warrant out for his arrest and if he comes to the notice of the police, that very event will occur.  So it seems to me that would amount to, a belt and braces approach and would serve no significant purpose for this obviously frightened, perhaps terrified litigant.  So any orders that I make would not seem to offer any further or broader protection for this party or for her children.  Accordingly, in those circumstances I do not propose to take the children’s matters any further, although it is open for the wife to talk to Independent Children’s Lawyer as to whether a fresh application based on affidavit evidence should be made, although I cannot work out what further orders could be put in place.

6. In terms of the property there are three or four sets of orders to which, the wife sought.  Firstly, was an injunction in relation to the husband’s superannuation of a sum of about $50,000 and then at the end of the orders was a flagging order, it seems to me that they are in essence the same order, so I will treat them as one, because what the wife is wanting the husband to do is to not take the superannuation so that at some stage there can be a determination as to what proportion, if any, she would be entitled to in respect of that superannuation.

7. Accordingly, I will deal with those two applications by way of a flagging order and as the evidence, albeit untested, contained in the affidavit of the wife filed 11 May 2012, it seems to me that there may be a history of money evaporating and a flagging order would be appropriate in these circumstances and the Trustee of the superannuation fund will hold the fund.

8. The second is an injunction in relation to the Commonwealth Bank from accounting to the husband with regard to the children’s bank accounts.  Unfortunately, the evidence of this witness is that that money has already gone, so an injunction would serve no purpose other than to retain a few cents in her bank account.  However, I will give leave for the wife to issue the subpoenas that she wishes to issue, and make then returnable before the Federal Magistrates Court at the next convenient date.  I will also transfer the proceedings back to the Federal Magistrate as it is only the property issues that remain outstanding for determination.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 July 2012.

Associate:     

Date:              2 July 2012