Jasons and Jasons

[2007] FamCA 1121

FAMILY COURT OF AUSTRALIA

JASONS & JASONS [2007] FamCA 1121

FAMILY LAW - PROPERTY INTERIM - Value of property - Injunction

Family Law Act 1975 (Cth)

Waugh & Waugh (2000) FLC 93-052

APPLICANT: Mr Jasons

RESPONDENT: Mrs Jasons

FILE NUMBER: DNF 73 of 2006

DATE DELIVERED: 10 September 2007

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 10 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Orwin

SOLICITOR FOR THE APPLICANT: Margaret Orwin Solicitor

COUNSEL FOR THE RESPONDENT: Ms Roennfeldt

SOLICITOR FOR THE RESPONDENT: Withnalls

Orders

(1)The wife is restrained and an injunction is granted restraining her from dealing with the real estate in Indonesia described as being Lot … Title …, Lot … Title … and Lot … Title … or any other real estate owned by the wife in Indonesia and such injunction is to remain in place until further order or until the husband and wife have obtained the appropriate independent valuation of those pieces of real estate.

(2)The wife is placed on notice that she may be at risk of costs to be paid to the husband of any unnecessary Indonesian proceedings and that such costs be taken into account in any adjustment of the assets and liabilities of the parties in Australia.

(3)The Court declines to make an order to produce the original Certificate of Titles of the Indonesian properties.

(4)The time is extended for the parties to file their affidavits and statement of financial circumstances to 4.00 pm on the 3 October 2007.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNF 73 of 2006

MR JASONS

Applicant

And

MRS JASONS

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1.This is an application that comes on before me seeking interim injunctions relating to the real property of the wife in Indonesia.  The matter has significant history.  The financial property settlement proceedings between the parties have been on foot in the Australian Courts for some time now, at least since May of 2006.

2.One of the significant issues has been the value of the three pieces of real estate owned by the wife in Indonesia.  The wife obtained a valuation which she provided to the husband, which he has disputed for a considerable period of time.  I made orders in June of this year that were meant to put in place a system by which the parties could obtain an independent valuation of those properties.  Due to the difficulties of operating in another jurisdiction it would appear that those orders have not yet been obeyed.

3.The husband became aware that the wife was contemplating proceedings in the Family Court in Indonesia in August of this year.  As a result he has brought application to this Court to restrain the wife from dealing with the real estate in Indonesia and to restrain her from instituting family law proceedings in Indonesia.  He also seeks orders that the wife produce the original Certificates of Title for the three Indonesian pieces of land.

4.In response the wife's solicitors has filed an affidavit to which is annexed a letter from a lawyer in Indonesia (which is now provided to the Court and the husband's solicitors).  That letter and the translation are annexed to the affidavit.  The letter is dated 20 July 2007 and is a letter not from an independent lawyer, but from a lawyer acting for the wife.

5.In summary the letter indicates that orders of this Court which relate to the Indonesian real estate would not be recognised in Indonesia and that any division of the assets mentioned, without the involvement of the Indonesian legal authorities, would be “a transgression of Republic Indonesia sovereignty”.

6.What is currently contemplated is not that there be orders in relation to the sale, disposal or transfer of the Indonesian property, but that a valuation be obtained of the real estate in Indonesia owned by the wife, for the purposes of assessing the type of appropriate order that would be just and equitable in these proceedings. It is always a part of the process of this Court to take into account all of the assets and liabilities of both of the parties and make an adjustment giving appropriate weight to factors in accordance with the Family Law Act provisions.

7.The Court recognises the sovereignty of the Republic of Indonesia and is not being asked to, nor would it without involving the appropriate Indonesian authorities, make orders in relation to the real estate in the circumstances that are set out in this letter.  However, it appears that from the Court file that the wife has previously obtained a valuation of the Indonesian property without consulting the husband about the expert to carry out that expert valuation.

8.The provisions of the Family Law Act make it clear that a single expert agreed to by the parties should be the expert to obtain the valuation particularly of an item of some significance.

9.I accept that the husband and wife are not seeking orders that will specifically deal with the real estate in Indonesia, but that the value of the Indonesian property is a factor which this Court would need to take into account.

10.The affidavit of the wife also asserts that the wife does not have the original Certificates of Title.  She does not say in the affidavit where those original Certificates of Title are.  I am told from the Bar table today, by her counsel, that the Certificates of Title are not in her possession, but are in possession of family members in Indonesia.

11.Counsel for the wife is also unable to explain the exact nature of the proceedings which apparently the wife is contemplating issuing in the Family Court in Indonesia, nor what their purpose is (bearing in mind that there are on foot appropriate Family Law proceedings in Australia and she is already the registered owner of the real estate in Indonesia).  It is asserted that by bringing proceedings in Indonesia the wife will be able to obtain a valuation of the real estate carried out by some sort of government or legal authority in Indonesia.  That is not explained in the translation of the letter from her Indonesian lawyer.  That also seems to fly in the face of the fact that the wife has already obtained, what she says was, an appropriate valuation of the Indonesian properties.

12.Bearing all of those difficulties in mind and taking into account the principles of the Full Court in the matter of Waugh & Waugh (2000) FLC 93-052. I accept that this is an appropriate case to err on the side of caution and to restrain the wife from transferring or disposing of, or otherwise dealing with, the properties in Indonesia.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate 

Date:  18 September 2007