McDonnell and McDonnell

[2007] FamCA 371

FAMILY COURT OF AUSTRALIA

MCDONNELL & MCDONNELL [2007] FamCA 371

FAMILY LAW - INJUNCTIONS - Ex parte and Interlocutory

Family Law Act 1975 (Cth)

APPLICANT: MRS MCDONNELL

RESPONDENT: MR MCDONNELL

FILE NUMBER: MLC 4245 of 2007

DATE DELIVERED: 18 APRIL 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 18 APRIL 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

Orders

UPON THE UNDERTAKING of the wife given to the Court this day that she will abide by any order for damages that may arise out of the injunctions hereunder pronounced.

IT IS ORDERED EX PARTE:

1. THAT the husband born in October 1949 be and is hereby restrained from departing the Commonwealth of Australia until further order of this Court.

2. THAT the Australian Federal Police place the name of the said husband on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain his name on the Watch list until further order of the Court.

3. That as soon as practicable the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order.

4. THAT the husband be and is hereby restrained by himself, his servants or agents from disposing of, gifting or spending all or any of the net proceeds of sale of the former matrimonial home at M.

5. THAT the husband forthwith account to the wife and to the Court with full particulars of the monies received upon settlement of the sale and of all monies currently available to him or within his possession or control.

6. THAT the further hearing of the wife’s Form 1 and Form 2 applications be adjourned in the Judicial Duty List to 10.00 a.m. on 10 May 2007, in the Family Court of Australia, 305 William Street, Melbourne.

7. THAT the wife forthwith effect proper service upon the husband of her applications and affidavit and her financial statement and a sealed copy of these Orders and produce to the Court on the adjourned hearing date appropriate proof of such service.

8. THAT both the husband and wife personally attend at Court on the adjourned hearing date.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4245 of 2007

MS MCDONNELL

Applicant

And

MR MCDONNELL

Respondent

REASONS FOR JUDGMENT

1. In the matter of McDonnell, the application before the court is filed by the wife.  The Form 1 and Form 2 applications were issued 17 January 2007.  They seek orders restraining the husband from departing the Commonwealth of Australia and otherwise injunctions to ensure that he does not dispose of or otherwise spend the proceeds of money arising from the sale of the former matrimonial home at M.

2. The wife appears in person.  She does not know the whereabouts of the husband and therefore he has not been served with each of the applications or the wife's handwritten affidavit or Form 13 financial statement, both filed that same day.

3. The parties married in January 1997 and separated nine years thereafter in April 2006.  There is one nine‑year‑old child of the marriage, a daughter, who lives with the mother.

4. The home in M was the principal asset of the marriage.  The wife indicated that an earlier valuation had been obtained at $260,000.  She has, however, now satisfied herself that the home has been sold and the purchaser now living in the home told her that the sale price was $227,500.  The wife's best estimate of the then mortgage was $45,000 and on that basis there was an expected equity of about $180,000 in that property.

5. The husband holds a British passport.  The wife believes he is in Australia, where he has lived for the past 20 years. 

6. The husband has not been served, as the wife has no current knowledge of his whereabouts, save that he may be able to be contacted through a family, Mr & Mrs C, at L. 

7. The wife is engaged in home duties.  Her affidavit deposes to the fact that the husband is likely in receipt of a Centrelink Newstart payment.  He is paying minimum child support, that is some $26 per month.

8. As to the home, it was in the sole name of the husband.  There was no caveat lodged by the wife.  It was sold without the knowledge, permission or consent of the wife and seemingly it settled on 26 March of this year.  The sale was conducted by the husband through a local real estate agent firm. 

9. In those particular circumstances I am asked to ensure that the husband remains within the jurisdiction in Australia and that he attends court at the adjourned hearing date.  I have indicated to the wife that it is normal procedure for her to give an undertaking to the court to be responsible for any proven damages as a result of the injunction on restraining the movement of the husband and whilst it may be unlikely in the context of this case that there would be any such damages, I do not predetermine that issue and I will require an appropriate undertaking to be given.  The wife has indicated that she will give such an undertaking and I have requested an experienced member of counsel as amicus curae to explain the nature and extent of that undertaking to her.  I intend the undertaking only to be that she complies with the court orders and the reality is that if there is a proven loss by the husband not being permitted to travel overseas, as may seem unlikely on the facts of this case, then that may be a matter for further determination by a court on another date and time.

10. I intend to require the husband to properly disclose the whereabouts of the balance of the proceeds of the sale of the home and not otherwise to dispose, gift or deal with those moneys and specifically to attend court on the adjourned hearing date.

11. The requirement of the wife is to effect proper service upon the husband, such as at the nose of these orders and, of course, the injunction will only be effective when it is brought to his attention.

12. For those brief extempore reasons in the matter of McDonnell the orders will be as pronounced. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 1 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MCDONNELL & MCDONNELL