King and King (No 2)

[2010] FamCA 662

FAMILY COURT OF AUSTRALIA

KING & KING (NO. 2) [2010] FamCA 662

FAMILY LAW – RESTRAINT – Ex parte application to restrain husband leaving Australia

Family Law Act 1975 (Cth)

APPLICANT: Ms King

RESPONDENT: Mr King

FILE NUMBER: MLC 7073 of 2008

DATE DELIVERED: 14 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr R.D. Ingleby

SOLICITOR FOR THE APPLICANT: Berry Family Law

Orders

1. That the wife have leave to proceed in the absence of service upon the husband and RY.

2. That the husband and RY be by themselves, their servants or agents restrained from leaving Australia until further Order and that the Australian Federal Police be requested to assist in the enforcement of this Order by inclusion of the names of the husband Mr King born … 1959 (male) and RY born … 1977 (female).

3. That the application of the wife filed 13 July 2010 be adjourned to 9.00am on Tuesday 20 July 2010.

4. That the wife have leave to forthwith file an amended application seeking final orders noting that it joins RY as a party.

5. That the solicitor for the wife forthwith serve upon the Australian Federal Police a copy of these orders.

6. That the solicitor for the wife forthwith serve upon the husband and RY the following:

   (a)     the application filed 13 July 2010;

   (b)    the affidavits filed 13 July 2010;

   (c)    the amended application filed 14 July 2010;

   (d)    this order; and

   (e)    a copy of the orders made on 7 December 2009.

7. That service of the said documents be by way of delivery to Maria Barbayannis & Co in respect of the husband and by post to RY C/- the husband’s last known address.

8. That the reasons be transcribed and be placed upon the Court file.

9. That the costs of the wife of this day be reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7073 of 2008

MS KING

Applicant

And

MR KING

Respondent

REASONS FOR JUDGMENT

1. This is an application brought on urgently on an ex parte basis by Ms King.  The basis upon which the ex parte application is made is that if the husband and his partner are put on notice of the application, they may very well leave the jurisdiction.  This is not a new case.  He has a sordid history in this court and the volume upon which I am working is number 5.  I have dealt with the matter on a number of occasions making final children's orders in May.

2. Earlier this year orders were made by consent of the parties that various transactions relating to property be set aside and that the consequence of those orders was that the property in Lebanon should, by now, have been put back into the names of the parties for the purposes of any applications still pending in this court under section 79 of the Act.  The affidavit in support of the application today sets out that correspondence has been sent over the last few months to the solicitors for the husband, chasing up why the matter hasn't progressed to the stage that the land would be in the names of at least the husband, if not the husband and the wife, and there appears to have been no response.

3. It seems to me that, having regard to what I know of the matter, and particularly the matters set out in the affidavit filed by the wife on 13 July, this is an appropriate case to prevent both the husband and his partner leaving Australia.  If they were permitted to leave Australia, then that which was agreed and, in fact, ordered, would most likely not be done.  It is always difficult to make orders on an ex parte basis because it is a complete anathema to the principles known around the common law world of natural justice.

4. For that reason I propose to make the injunction for a very limited period of time so that Mr King can come and explain himself, not to mention his partner.  On that basis I will make an order in terms of paragraph 1. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  3 August 2010