Jarvis and Jarvis

[2009] FamCA 12

FAMILY COURT OF AUSTRALIA

JARVIS & JARVIS [2009] FamCA 12

FAMILY LAW – INJUNCTIONS – Interim restraining orders – Husband not to depart Australia until further order on 4 February 2009 – Children’s orders

Family Law Act 1975 (Cth)

APPLICANT: MS JARVIS

RESPONDENT: MR JARVIS

FILE NUMBER: MLC 10882 of 2008

DATE DELIVERED: 19 JANUARY 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 19 JANUARY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS BRENTON

SOLICITOR FOR THE APPLICANT: MANTELLO LAWYERS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

THAT UPON the undertaking of the wife given to the Court through her counsel this day that she will abide by any order reasonably made for damages in favour of the husband and arising out of the injunctive order restraining his freedom of movement from the Commonwealth of Australia on an interim basis, then:

IT IS ORDERED:

1. THAT the further hearing of the wife’s initiating and interim applications be adjourned to the Judicial Duty List at 10.00 a.m. on Wednesday 4 February 2009.

2. THAT the husband attend at the Family Court of Australia, Melbourne Registry, 305 William Street, Melbourne punctually for that adjourned hearing.

3. THAT the children of the marriage S born … September 1994, K born … November 1995, R born … November 1995 and V born … March 2004 (“the children”) live with the wife.

4. THAT the husband’s time to be spent with each or all of the children be reserved.

5. THAT until further order the husband, his servants or agents be and are hereby restrained from removing or attempting to remove the children or any of them from the Commonwealth of Australia.

6. THAT until further order the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the children S born … September 1994, K born … November 1995, R born … November 1995 and V born … March 2004 or either of them from the Commonwealth of Australia  AND IT IS FURTHER ORDERED  that the Australian Federal Police place the names of the said children on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until further order of the Court.

7. THAT as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.

8. THAT until further order the wife be granted the sole use and occupation of the former matrimonial home situate at L Street and the husband, or his servants or agents are not to enter upon that property without the prior consent of the wife.

9. THAT the husband, MR JARVIS born … January 1970 be restrained, until 6.00 p.m. on Wednesday 4 February 2009 from departing the Commonwealth of Australia unless he has fully accounted to the wife in writing and her solicitors for his receipt and dealings with the proceeds of sale of the jointly owned former matrimonial home at P Street and additionally for the balance of monies held by him in a Bendigo bank account no. ….

10. THAT the husband MR JARVIS born … January 1970 is hereby restrained from departing the Commonwealth of Australia until 6.00 p.m. on Wednesday 4 February 2009 AND IT IS FURTHER ORDERED  that the Australian Federal Police place 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 Wednesday 4 February 2009.

11. That as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order.

12. THAT the outstanding interim and final orders sought by the wife, and specifically including any location order directed to Centrelink, be adjourned to the adjourned hearing date.

13. THAT as soon as practicable the solicitors for the wife serve upon the husband:

    (a)         a sealed copy of this order;

    (b)         the Form 13 statement of financial circumstances of the wife;

    (c)         any other court document that may be filed on behalf of the wife;

    (d)a copy of the intervention order pronounced in the Werribee Magistrates Court on 27 November 2008.

14. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

15. THAT the wife’s costs of and incidental to the hearing this day be fixed in the sum of $2,000 and the question of any payment thereof be reserved to the adjourned hearing.

IT IS NOTED

A.THAT the court heard evidence from the wife and her solicitor as to the service of court documents effected upon the husband at a McDonalds store in W on Friday 16 January 2009.  The court accept that evidence and the matter proceeded to hearing and interim orders were made reliant upon that evidence of service.

B.THAT the wife has executed the formal undertaking document and that will be marked exhibit “W2” and be retained upon the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10882 of 2008

MS JARVIS

Applicant

And

MR JARVIS

Respondent

REASONS FOR JUDGMENT

1. The matter of Jarvis is before me in the Judicial Duty List.  Ms Brenton of counsel appears for the wife and is instructed by Mr Mantello.  The husband is not at court.  He was called out of court and did not appear. 

2. I initially satisfied myself as to service.  I have had evidence from both the wife and her solicitor, and on the basis of the document filed with the court, their oral evidence to the court and exhibit “W1” in the proceedings, I am satisfied to find that last Friday, at a McDonald's store in W, the husband was served with the initiating and amended applications of the wife, together with both affidavits of the wife.  He was not served with the Form 13 financial statement filed on behalf of the wife.  I will have the evidence of both the wife and Mr Mantello transcribed and placed upon the court file.

3. Dealing then with the amended application in a case filed 19 January 2009, I have read the two affidavits of the wife in support thereof.  I intend to make orders for the four children to live with the wife.  I will reserve any time that the husband may spend with them but that will be subject to him showing some level of interest.

4. I will make an order restraining the removal of the children by any person from the Commonwealth of Australia and I will have their names entered upon an airport watch list. 

5. As to property and financial matters I am satisfied that it is appropriate to grant to the wife interim sole use and occupation of the property in which she and the four children now live at L Street.  I decline at this stage to make any order transferring that property into her sole name.  That must await appropriate evidence and ongoing court hearings.

6. The more contentious interim application sought on behalf of the wife today was to restrain her husband, an Australian citizen who was born in January 1970, from leaving the Commonwealth of Australia.  The basis of that exercise of injunctive power is identified in the wife's initiating affidavit.  Primarily it is that the former matrimonial home at P Street was sold for $182,000 in or about March of this year.  The balance of money was able to be obtained by the husband, in an approximate sum of $53,000.  Those moneys are allegedly retained by the husband and not accounted to by him to the wife.  I have read paragraphs 19, 20 and 21 of the wife's affidavit in that regard.

7. The husband did travel overseas and has now returned from Serbia.  I accept that he was in W last Friday when served with documents.  I do have a concern by the relatively brief period that the husband has had to obtain legal advice post Friday, 16 January of this year.  Nevertheless, he does control or have in his possession the majority of the asset pool of this marriage.  He could have been at court today but I will provide an opportunity for him to attend on 4 February of this year in the judicial duty list. 

8. My restraint of the husband from departing the Commonwealth of Australia will only be until 6.00 p.m. on that day and the wife will be required to satisfy the court and have extended this interim injunction if the restraint is to be continual. 

9. One of the interim orders sought is for a disclosure order to be made by Centrelink as to the records they keep of the husband, if any.  I specifically adjourned that application to the adjourned hearing date of 4 February 2009.  I will also require the solicitor for the wife to serve a sealed copy of this order upon the husband, together with these extempore reasons if they are then available and the Form 13 financial statement of the wife previously filed with the court but which has not yet been served upon him.

10. In the course of submissions from counsel for the wife, I now understand that the intervention order made in the Magistrates Court at Werribee is also outstanding as to service and that document must be served upon the husband.  One would think that the state police would be able to access certain files and information, particularly if the husband has a driver's licence, to ascertain his whereabouts for service of that order of the state Magistrates Court. 

11. As to the orders sought in respect of superannuation, I decline to deal with those matters today.  Appropriate time must be given to the husband to respond and there are other issues of procedural fairness being afforded the appropriate superannuation trustee. 

12. I have very carefully explained to counsel for the wife that I would require her to give an undertaking as to damages in respect of the restriction upon the husband's freedom of movement out of Australia.  It may be that he can identify the order as being inappropriate and genuine damages are incurred.  It may be that he suffers financial loss through an air ticket purchased and unable to be used.  I do not speculate upon the many contingencies that may arise, but Ms Brenton has advised me that the wife does understand her responsibility in giving an undertaking for damages and is prepared to give such an undertaking to the court.  That undertaking will be part of the order of the court.

13. There is an appropriate consent to undertaking form that my court officer will provide to Ms Brenton and that must be completed by the wife and solicitor before they leave this courtroom today and the order is made upon the basis that that document is signed by them and lodged with my court officer immediately. 

14. I will have these reasons transcribed and placed upon the court file.  I emphasise that the wife has been advised, insofar as the four children are restrained from leaving the Commonwealth of Australia, that is an ongoing order and it is wholly her responsibility to vary or vacate that order should any of the children for any proper reason wish to leave this country and not suffer the embarrassment and financial loss of being detained at the airport.  I make no order restricting the wife's freedom of movement.

15. I conclude by emphasising the necessity of effectively serving the husband with all documents.  I will also order that he attend court on the adjourned hearing date.

16. For those brief reasons and satisfied as I am that I am acting in the best interests of the children and otherwise there are grounds, in the short term only, to require the husband to answer the issues of financial profiting allegedly at the expense of the wife, I will also announce the injunctive order sought.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: