Malcher and Malcher and Ors

[2014] FamCA 416

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER AND ORS [2014] FamCA 416

FAMILY LAW – PROPERTY – ex parte proceedings – Where one party has indicated that they do not intend to defend proceedings in the Family Court

APPLICANT: Ms Malcher

RESPONDENT: Mr Malcher and Others

FILE NUMBER: SYC 3808 of 2012

DATE DELIVERED: 15 April 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 15 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Morozov

SOLICITOR FOR THE APPLICANT: Barkus Doolan

Orders

IT IS ORDERED

1. That the 2^nd and 3^rd respondents be restrained by injunction from taking any steps in respect of the proceedings instituted against the 1st Respondent in the Supreme Court, being 2013/… pending further order.

2. That these orders be served forthwith upon the 2^nd and 3^rd respondents by service upon their solicitors in the Supreme Court proceedings Brown Wright and Stein.

3. That the application be returnable before the Honourable Justice Rees at 10 am on Thursday 17 April 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher and Ors 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 SYDNEY

FILE NUMBER:  SYC 3808 of 2012

Ms Malcher

Applicant

And

Mr Malcher and Others

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for property settlement between Ms Malcher (“the wife”) and Mr Malcher (“the husband”). The parents of the respondent husband, Mr Malcher, are Mr T Malcher and Ms I Malcher (the second and third respondents). They have been involved in the property settlement proceedings between the husband and the wife in the Family Court of Australia. 

2. Mr T Malcher and Ms I Malcher have commenced proceedings in the Supreme Court of New South Wales seeking repayment of moneys alleged to have been lent by them to the husband together with interest. In the event that those proceedings were successful there would be little or no matrimonial property left to divide. 

3. The husband has indicated to the wife that he does not propose to defend those proceedings despite the fact that there may be defences available to him. 

4. Notice has been given to the wife by the second and third respondents that they propose to proceed to sign judgment in the Supreme Court proceedings against the husband tomorrow. The wife seeks an order restraining the second and third respondents, by way of injunction, from taking any steps to sign judgment in the Supreme Court proceedings against the first respondent. 

5. The wife instructs her solicitors to give to the Court an undertaking as to damages. 

6. In circumstances where the second and third respondents intend to sign judgment tomorrow it is appropriate to deal with this matter ex parte but to bring the matter back to Court on very short notice, and I propose to make the orders which are sought in the amended minute of order relied upon by the wife and to bring the matter back before me at 10 am on Thursday 17 April 2014.  

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 April 2014.

Associate: 

Date:  15 April 2014