Gruber and Gruber

[2011] FamCA 454

FAMILY COURT OF AUSTRALIA

GRUBER & GRUBER [2011] FamCA 454

FAMILY LAW – INJUNCTIONS – Preservation of property

Family Law Act 1975 (Cth)

APPLICANT: Mr Gruber

RESPONDENT: Ms Gruber

FILE NUMBER: MLC 3245 of 2011

DATE DELIVERED: 15 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Werner

SOLICITOR FOR THE APPLICANT: Stynes Dixon Lawyers

THE RESPONDENT: No appearance

Orders

AND UPON the undertaking of the husband that he will abide by any order for damages made against him arising out of these orders
IT IS ORDERED

1. That the husband have leave to proceed without notice to the wife of this application.

2. That the application filed 15 April 2011 be adjourned to 10.00am on 18 April 2011 before the Honourable Justice Mushin.

3. That until further order, the wife be restrained from withdrawing any funds from Account Number … with the Commonwealth Bank of Australia in her name.

4. That a copy of this order be forthwith served upon the Commonwealth Bank of Australia.

5. That a copy of this order, the application filed this day together with the supporting affidavit be served as soon as practicable upon the wife.

6. That the reasons be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3245 of 2011

Mr Gruber

Applicant

And

Ms Gruber

Respondent

REASONS FOR JUDGMENT

1. This is an ex parte application that has been brought on at four o’clock on a Friday afternoon.  The Registrar who assessed the matter deemed it sufficiently urgent, having regard to the facts, to put it before the Court today.  The parties are married and it would appear their relationship has come to an end.  The substance of the application is that the husband seeks an injunction in relation to what may be the only major asset of the parties which is a sum of approximately $200,000 in cash.  There is more money, but it is in the joint names of the parties, the $200,000 being in account in the wife’s name only.  The husband’s evidence is brief.  He says that yesterday he had a telephone discussion with the wife after checking the joint account and noticed that the entire balance of the net saver account and the complete access account had been transferred into the wife’s name only.

2. When he spoke to the wife, she indicated that the relationship between them was over, that – as it was she who had made the money, she was taking it all, leaving him with the motorcar.  Both parties are professional sportspeople and it would seem that the wife is about to fly to Country 1 on Monday to participate in a training camp followed by a competition in Country 2.  The husband asserts that the wife will be out of Australia for a long period of time and as such if the money is taken by her there is every reason to suggest that it is being taken beyond the jurisdiction of the Court.  Although the wife is an Australian citizen and plays sport for her country, she has no family or other specific connection with Australia other than through sport.  The husband asserts that there is a risk therefore that the money may be beyond the jurisdiction of the Court.

3. The application has not been served predominantly because of a fear of what might happen should it be brought to the attention of the wife. I am satisfied in those circumstances that it is appropriate to proceed in her absence on two bases; the first is the fact that the husband has given an undertaking as to damages, albeit that undertaking can only be limited to the extent of his own property, but secondly there is the fact that there is considerable urgency about the matter. Section 114 of the Family Law Act 1975 (Cth) (“the Act”) provides that a court can make an injunction if it is satisfied that it is proper to do so. Mareva Injunctions are designed to protect property in which a party has an interest for the purposes of enabling the application to, ultimately, be properly dealt with by a court. I am satisfied in this case that if the injunction is not made at least on an interim basis there is at least that risk of the money being put beyond the jurisdiction of the Court.

4. Having regard to the undertaking as to damages, it seems appropriate for me to bring the matter back quickly, and I propose to adjourn the matter to 10 o’clock on Monday morning, for no other reason than the fact that the wife seems to be leaving the country, and therefore, in fairness to her, she needs to know just what her future financial position is going to be.  It will be noted that the application as filed, sought an injunction which effectively amounts to half of the bank account.  After discussion, I have indicated I do not propose to make that order but rather make an injunction in respect of the whole of the account having regard to the fact that it puts the bank in a position of having to interpret just what it can and can’t do.  It seems to me that the bank has a right to know that it is not putting itself in any difficulty with the Court.  I am told by Mr Werner of counsel that discussions have been had with the bank and as such the bank is on standby should it need to so act and the wife is at a local Melbourne hotel where she can be contacted by way of service.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 April 2011.

Associate: 

Date:  16 June 2011