Jacobova and Stein

[2017] FamCA 606

FAMILY COURT OF AUSTRALIA

JACOBOVA & STEIN [2017] FamCA 606

FAMILY LAW – INJUNCTIONS – Urgent interim injunction – relief sought no longer appropriate – directions for service of process of husband’s bankruptcy trustee made ex parte – adjourned date.

APPLICANT: Ms Jacobova

RESPONDENT: Mr Stein

FILE NUMBER: MLC 13605 of 2007

DATE DELIVERED: 21 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Kovacs

SOLICITOR FOR THE APPLICANT: Lewenberg & Lewenberg

COUNSEL FOR THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The further hearing of the second further Amended Application in a Case filed on behalf of the wife this day be otherwise adjourned to the Judicial Duty List on 2 August 2017 at 10.00 am.

2. The wife have leave to make an oral application for an order against Mr E at Company H, …, Melbourne in his capacity as bankruptcy trustee of the husband to not further progress the administration of the husband’s bankrupt estate and to provide all such documents as are in his possession, custody or control in relation to the bankruptcy to the solicitors for the wife.

3. The husband and Mr E forthwith provide to the wife care of her solicitors, Lewenberg & Lewenberg, … Melbourne in the State of Victoria with a copy of all documents and things concerning the husband’s bankruptcy on his own petition.

4. The wife have leave to cause a subpoena to produce evidence to the husband’s wife, Ms Z, also known as Ms Z, such documents to be produced within 14 days of service upon Ms Z.

5. That until further order the husband, MR STEIN, date of birth … 1966 (“the husband”) be and is hereby restrained from departing from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said husband on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the husband’s name on the Watch List until the Court orders its removal

6. That the Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

7. IT IS DIRECTED 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.

8. Until the adjourned date the husband be and is hereby restrained by injunction from causing, permitting or suffering any application to be made by him or on his behalf for a passport to issue for him AND IT IS DIRECTED that a copy of this Order be provided by this Registry of the Court to the Proper Officer of the Department of Immigration and Multicultural Affairs

9. The time for compliance by the husband with paragraph 2 of the Order made on 4 April 2017, which provides for the husband to provide information and documentation concerning the SUV motor vehicle, be extended to Wednesday 28 June 2017 and all such documents be lodged by the husband with the Subpoenaed Documents Clerk of this Registry of the Court and remain held by the Subpoenaed Documents Clerk with liberty to the wife and her practitioners to inspect the documents.

10. The solicitor for the wife serve a sealed copy of this Order upon:-

    a)Mr E of Company H, …, Melbourne in the State of Victoria;

    b)Mr J, solicitor, at M Lawyers, …, Melbourne in the State of Victoria –

    and such service be effected by electronic means.

11. I reserve liberty to Mr E to apply to vary or set aside this order or as he may be advised.

12. My reasons for decision be transcribed and when settled be placed on the Court file and a copy provided to each of the parties.

13. Costs be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13605 of 2007

Ms Jacobova

Applicant

And

Mr Stein

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in my capacity as the judge responsible for urgent duty list matters.  An application was filed today in the form of a second further amended application in a case by the wife seeking, at paragraph 10, to restrain the husband, his servants and agents from proceeding with any debtor’s petition or from taking any other step to have himself declared bankrupt, and any and all instruments executed by him, including any debtor’s petition to effect such bankruptcy to be set aside pursuant to section 106B of the Family Law Act1975. 

2. Dr Kovacs of counsel appears on behalf of the wife who attends court. 

3. The husband appears in person.  He has previously been represented by Mr J of M Lawyers, but he now acts on his own behalf. 

RECORDED : NOT TRANSCRIBED

1. Since the second amended application was issued this morning, the wife has been advised by her lawyers that they were contacted last evening and provided with documents indicating that the husband has already been declared bankrupt.  The husband confirms that is the case. 

2. The husband has confirmed that he did petition for his own bankruptcy.  The creditors were the wife for approximately $43,000, and his former solicitor, Mr J and the firm M lawyers, for the sum of approximately $65,000.  The husband says that he did so because he was unable to reach an accord with the wife to pay her the moneys owing by way of instalment.

3. Mr E is the husband’s bankruptcy trustee.  Mr E does not have notice of these proceedings.  However, the only order sought by the wife at this stage against Mr E is to provide a copy of all documents in relation to the husband’s petition for his own bankruptcy.  It seems to me that whilst any person affected by an order ought be accorded procedural fairness, it is appropriate in the circumstances of this case to make an order that the bankruptcy trustee produce the documents which are in his possession or control concerning the bankruptcy but to give him liberty to apply to vary or set aside this order in the event that he wishes to do so before the return date. 

4. The wife is concerned that the husband may apply for a passport and travel overseas and, inferentially, that if he did so she would not be able to pursue him for the significant arrears of child support which he owes. 

RECORDED : NOT TRANSCRIBED

1. The husband has said that a watch list order and an order restraining his application for any further passport is not inconvenient to him.  He does not oppose such an order. Accordingly, I will make an order also in those terms.

2. The matter can next be accommodated in the judicial duty list on 2 August 2017 but not before. That is a long time to wait but the listing is out of my hands. At least the extended adjournment will give the parties and Mr E an opportunity to carefully consider their respective positions and the necessity or advisability of proceeding further.  

RECORDED : NOT TRANSCRIBED

1. All parties should ensure that any further evidence or application is filed and served within a reasonable time prior to the adjourned date so that other parties have adequate time to consider it and, if appropriate, to respond. However, I will not make orders today which oblige the parties to produce more documents or incur further costs in that regard. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 June 2017.

Associate: 

Date:  26 July 2017