LGM and CAM and Anor

[2009] FamCA 250

FAMILY COURT OF AUSTRALIA

LGM & CAM AND ANOR [2009] FamCA 250

FAMILY LAW – SPOUSAL MAINTENANCE – Interim Application – pending property proceedings – matter adjourned

Family Law Act 1975 (Cth)

APPLICANT: Ms LGM

RESPONDENT: Mr CAM

SECOND RESPONDENT: Mr OD

FILE NUMBER: SYF 3359 of 1997

DATE DELIVERED: 19 March 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: O'Ryan J

HEARING DATE: 19 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENTS: Mr Bedrossian

SOLICITOR FOR THE RESPONDENTS: Etheringtons Solicitors

Orders

1. The application in a case filed by the Wife on 9 March 2009 be adjourned to 9.30 am on Thursday 2 April 2009.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3359 of 1997

MS LGM

Applicant

And

MR CAM

Respondent

And

MR OD

Second Respondent

REASONS FOR JUDGMENT

1. Before me is an application in a case filed on 9 March 2009 on behalf of LGM (“the Wife”) in which she seeks the following orders:

   1.That the applicant have leave to serve short notice of this Application and Application for Consent Orders upon the Husband, Mr [OD] and Etheringtons Solicitors.

   2.That pending further or final order of the Court, the Husband, Mr [OD] and Etheringtons solicitors do all acts and things to agree the Wife Application for Consent Orders.

   3.That the applicant permits to access $800,000 from all trust accounts in name of W & H, [the husband], [Mr OD] and Etheringtons solicitors in $2,450,000.00 cash pool within 48 hours being served as a partial interim spousal maintenance.

   4.That until further or other order of the Court, Mr [OD] and Ethereingtons solicitors be immediately restrained from exercising trust accounts or using any position held by himself or itself, or by any servant or agent of theirs in name of [the husband], [Mr OD], Etheringtons solicitors, [CM Company], [CS Company] and [TY Company].

   5.That Mr [OD] and Etheringtons solicitors provide all trust accounts Bank Statement, Cheque books, cheque butts of the period 1 July 2002 to 5 March 2009.

   6.Such other order and orders as this Honourable Court deems fit.

2. The respondents to the application are CAM (“the Husband”) as the first respondent and Mr OD as the second respondent. Mr OD is the Husband's solicitor. 

3. Neither the Husband nor Mr OD have filed a response.  I was informed by Mr Bedrossian of counsel that the application was opposed by both the Husband and Mr OD.  However no request was made for an opportunity to file any evidence and it was submitted by Mr Bedrossian that I should proceed to hear and determine the application. 

4. In support of the application the Wife swore an affidavit on 8 March 2009.  As well, she put before me three documents: the first being an application for consent orders; the second being a third party debt notice in which the Husband was named as the respondent; and the third being a third party debt notice in which Mr OD was named as the respondent.

5. At the outset I say that I am not prepared at this stage to deal with the application, and briefly the reasons are these:  first and very importantly, I have reserved judgment in the pending property settlement proceedings and I anticipate that the making of orders and delivery of my reasons will occur within a very short period of time.  And I will say more about that in a moment. 

6. Second, in the Wife's affidavit in support of the application, and considering the terms of the orders in the application, it would appear that, in essence, the Wife is seeking an order for spousal maintenance pursuant to s 74 of the Family Law Act and perhaps orders by way of injunctions pursuant to s 114 of the Family Law Act.  I do not propose to go at this stage into any detail about the source of the power for the relief sought by the Wife, nor the evidence which she relies upon.  It is sufficient merely to say that my preliminary view is that the Wife is asking me to adjudicate on some issues which are the subject of the controversies in what I will call the substantive proceedings.  I would be very anxious to avoid having to determine any matters that may overlap with those which are the subject of those substantive proceedings. 

7. A number of matters were put on behalf of the Husband and Mr OD as to why the application should be dismissed.  Without expressing any concluded view about those matters, I accept that there is some merit in what has been put.  However, again, I do not propose at this stage to form or make any concluded finding about those matters.  What is important is that considering the material of the Wife, the application appears to have been triggered by a need for funds to pay for the costs of damage that it is contended occurred at S Street in consequence of a leak in the hot water system on or about 15 September 2008.  As Mr Bedrossian said, this application is somewhat belated, given when the damage occurred and, for my part, that is the only matter, looking at the material, in respect of which it could be said there was any urgency.  In any event, having regard to the time it has taken to seek some relief in consequence of that water damage, I do not believe that the matter is urgent and hence could be dealt with on another occasion.

8. As to the other matters, for my part I am a little confused about precisely what is sought and why, but again I am not going to form any concluded view at this point about those matters.  I therefore propose to adjourn the application to a specified date which I will now briefly discuss with the Wife and Mr Bedrossian.  

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan

Associate: 

Date:  1 April 2009