KELES & KELES

[2015] FamCA 1052

FAMILY COURT OF AUSTRALIA

KELES & KELES [2015] FamCA 1052

FAMILY LAW – INJUNCTIONS – where application for ex parte injunction – where appropriate for orders to be made ex parte – where husband seeks bank advance in breach of interim orders – where reasonable fear that funds may be remitted overseas – where proper to make orders as sought .

Family Law Act 1975 (Cth) s 114

APPLICANT: Ms Keles

RESPONDENT: Mr Keles

FILE NUMBER: PAC 2820 of 2014

DATE DELIVERED: 26 October 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: Matthews Dooley & Gibson

SOLICITOR FOR THE RESPONDENT: Cluff & Associates

Orders on an ex parte basis

1. That the Husband, Mr Keles born … 1969 be and is hereby restrained from leaving or attempting to leave the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing Mr Keles born … 1969 on the Airport Watch List in force of all points of arrival and departure in the Commonwealth of Australia and maintain Mr Keles born … 1969 on the Watch List until the Court orders its removal.

2. That the Commonwealth Bank by its officers, servants and agents be and is hereby restrained from allowing Mr Keles born … 1969  or any other person or entity from drawing down funds from or otherwise operating Line of Credit Account Number … in the name of Mr Keles.

3. That the Husband be and is hereby restrained from drawing down, expending or otherwise dealing with funds or otherwise in or from Commonwealth Bank Account Number ...

4. That by 4.00 pm on the 30^th October 2015

   (a)       The Husband provide to the Wife's Solicitors copies of all statements for Commonwealth Bank Account Number … as well as statements for any other Bank Account or the like into which funds from Account Number … were paid.

   (b)       The Husband provide to the Wife's Solicitors a full  disclosure and accounting for any funds drawn from the said Commonwealth Bank Account Number … together with documents relating to each such transaction.

   (c)       The husband do all such things and execute all necessary documents as are required to redeem any funds drawn from the said Commonwealth Bank Account Number … and such redeemed funds be paid back into Commonwealth Bank Account Number ... The husband provide copies of all such documents to the solicitors for the wife in relation to any redemption.

5. That the Husband not remove from Australia or in any way dispose of, deal with or diminish the value of any of his assets.

6. That the Husband file and serve a Financial Statement within 14 days.

7. The Wife’s costs of and incidental to today be reserved.

8. The solicitor for the Husband effect service of a sealed copy of these orders on the Proper Officer, Commonwealth Bank of Australia as soon as practicable after receipt of a sealed copy of these orders with a sealed copy to be served on that Proper Officer by email or facsimile transmission.

9. Subsequent to service of a sealed copy on the Commonwealth Bank as provided for above a sealed copy of the orders made today be forwarded promptly to the Husband’s solicitors by the way of service.

10. The Application in a Case is adjourned to 10:00am on 4 December 2015.

11. Liberty is granted to either party to relist on short notice in appropriate circumstances by application to the Associate in Chambers.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keles & Keles 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 PARRAMATTA

FILE NUMBER: PAC 2820 of 2014

Ms Keles

Applicant

And

Mr Keles

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed by the wife on 26 October 2015 seeking certain injunctive orders to protect her position in respect to previous consent orders made between the parties on an interim basis on 12 March 2015.  Those interim orders provided, inter alia, that the husband be restrained from doing any act or thing so as to sell, transfer, assign, mortgage, encumber, dispose of or deal with or adversely affect any of his right, title and interest in the property at B Street, Suburb A being the land in Folio Identifier ... 

2. The application comes before the Court today supported by an affidavit by Mr D, solicitor for the applicant wife, who informs the Court that, notwithstanding the orders made, that material produced on subpoena by the Commonwealth Bank of Australia being marked Exhibit A in this interim application evidences that the husband has sought to refinance the matrimonial property by borrowing the sum of $900,000 by way of a Viridian Line of Credit Loan which would facilitate him drawing those funds over and above the current mortgage that was about $300,000.

3. Should the bank complete the loan advance he will have access to a further $600,000 in funds. Clearly, the husband’s actions as evidenced by material from the Commonwealth Bank of Australia are a breach of the Court orders. 

4. The Court has power under Section 114 of the Act to make such injunctive orders it considers proper in respect to the matter before it.

5. An application was made to the Registrar in chambers today seeking leave for the matter to be listed ex parte.  That application was granted by the Registrar, and it is an appropriate matter to be heard on an ex parte basis, particularly having regard to what might transpire should the husband be given notice of the present application.

6. The wife’s fear is that should the husband be able to draw down some or all of the funds to be advanced by the bank he may well either remit funds from the jurisdiction or he himself leave the jurisdiction in circumstances where any orders made by this Court may well be illusory in terms of enforcement. 

7. Accordingly, in all of the circumstances the Court is satisfied that it is proper to make orders in terms of paragraphs 3, 4, 5, 6, 7, 8 set out in the Application in a Case filed on 26 October 2015.

8. In that application the wife seeks an order for a payment by the husband of indemnity costs in relation to the application, but in all of the circumstances, absent him being heard on that issue, the wife’s costs of and incidental to today will be reserved pending further order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 October 2015.

Associate: 

Date:  26 October 2015