FAMILY COURT OF AUSTRALIA
| MOREIN & MOREIN | [2014] FamCA 1004 |
FAMILY LAW – PROPERTY – INJUNCTION – Where the wife seeks various interlocutory orders and injunctions including an ex parte Anton Piller order – Where the wife ultimately seeks parenting orders, settlement of property, spousal maintenance and costs – Where the wife has given an undertaking as to damages – Where the wife gives evidence that the former matrimonial home may represent the entirety of the available assets of the parties – Where the wife gives evidence that two-thirds of the value of the former matrimonial home may have been dissipated, without her knowledge and in a way that cannot be recovered – Where the balance of prejudice favours the granting of the injunctions and orders – Where interlocutory orders are made ex parte including Anton Piller order.
| Family Law Act 1975 (Cth) – s 114AA, 121 Family Law Rules 2004 (Cth) – r 14.04 |
| Anton Piller K.G. v Manufacturing Processes Limited [1976] 1 Ch 55 Blue Seas Investments Pty Ltd & Mitchell and McGilvray (1999) FLC 92-856 Microsoft Corporation v Goodview Electronics Pty Ltd (1999) 46 IPR 159 PMSI Group v Wilson [2003] NSWSC 263 Stowe & Stowe (1981) FLC 91-027 Talbot & Talbot (1995) FLC 92-586 |
| APPLICANT: | Ms Morein |
| RESPONDENT: | Mr Morein |
| FILE NUMBER: | SYC | 6802 | of | 2014 |
| DATE DELIVERED: | 30 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 30 October 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Johnston |
| SOLICITOR FOR THE APPLICANT: | Legal One Services |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
IT IS ORDERED ON AN EX PARTE BASIS:
That pending further order the husband be restrained from drawing on the mortgage to the Australian and New Zealand Banking Group Limited registered over the title to the former matrimonial home situate at K Street, Suburb D in the State of New South Wales.
That the wife serve a sealed copy of this order upon the husband and the Australian and New Zealand Banking Group Limited no later than 4.00 pm on Monday 3 November 2014.
That pending further order the husband be restrained from listening to or recording the wife’s telephone and from accessing her email and SMS messages.
That pending further order that the husband be restrained from assaulting, molesting or otherwise interfering with the wife.
That pending further order the wife have the exclusive occupation of the former matrimonial home situate at K Street, Suburb D (“the home”).
That pending further order the husband vacate the home forthwith upon the service of this order.
That pending further order the husband be restrained from approaching within 500 metres of the home.
The Court noted that Orders 4, 5, 6 and 7 are orders for the personal protection of the wife and pursuant to s 114AA of the Family Law Act 1975 (Cth) import in terms of that section the power of arrest without warrant to a relevant police officer.
That pursuant to r…
Continue reading MOREIN & MOREIN
Sign in free to access the full text
- AGLC
- MOREIN & MOREIN [2014] FamCA 1004
- Case
- [2014] FamCA 1004
- Decision Date
CaseChat Overview and Summary
The court was required to determine the necessity and scope of interim orders for the personal protection of the wife, including restraining the husband from certain actions and granting the wife exclusive occupation of the former matrimonial home. Additionally, the court considered orders for the seizure and copying of data from the husband's business computer server and backup drives, and the provision of necessary passwords and security codes.
Loughnan J applied principles relating to the court's power to make orders for the personal protection of a party under s 114AA of the *Family Law Act 1975* (Cth), which imports a power of arrest without warrant. The court also exercised its powers under r 14.04 of the *Family Law Rules 2004* (Cth) to facilitate the seizure and copying of digital evidence, appointing an independent solicitor to supervise the process and maintain possession of the seized materials. The orders were made on the usual undertaking given by the wife.
The orders made included restraining the husband from drawing on a mortgage over the former matrimonial home, restraining him from accessing the wife's communications, and ordering him to vacate the home and remain a specified distance from it. The court also ordered the husband to permit entry to his business premises to seize and copy data from his computer server and drives, and to provide all necessary passwords. The wife was restrained from accessing the copied data pending further order. The matter was adjourned for further hearing.
Orders
Orders of the court
IT IS ORDERED ON AN EX PARTE BASIS:
1.
That pending further order the husband be restrained from drawing on the mortgage to the Australian and New Zealand Banking Group Limited registered over the title to the former matrimonial home situate at K Street, Suburb D in the State of New South Wales.
2.
That the wife serve a sealed copy of this order upon the husband and the Australian and New Zealand Banking Group Limited no later than 4.00 pm on Monday 3 November 2014.
3.
That pending further order the husband be restrained from listening to or recording the wife’s telephone and from accessing her email and SMS messages.
4.
That pending further order that the husband be restrained from assaulting, molesting or otherwise interfering with the wife.
5.
That pending further order the wife have the exclusive occupation of the former matrimonial home situate at K Street, Suburb D (“the home”).
6.
That pending further order the husband vacate the home forthwith upon the service of this order.
7.
That pending further order the husband be restrained from approaching within 500 metres of the home.
8.
The Court noted that Orders 4, 5, 6 and 7 are orders for the personal protection of the wife and pursuant to s 114AA of the Family Law Act 1975 (Cth) import in terms of that section the power of arrest without warrant to a relevant police officer.
9.
That pursuant to r 14.04 of the Family Law Rules2004 (Cth) the husband forthwith upon the service of this order on him permit the applicant or her nominee, Elle Luke Georges (“the independent solicitor”), Mr E (“the computer expert”) and any law enforcement officer accompanying them to enter the premises of Morein & Co at P Street, Suburb A, NSW and to seize the business computer server and any back up drives and to remove the same from the premises for the purpose of copying the hard drives.
10.
That forthwith upon service of these orders the husband provide to the independent solicitor all passwords or security codes associated with the said server and drives.
11.
That the independent solicitor return the computer server and drives to the said premises by 10.00 am on the next working day following the execution of Order 9 and he is authorised to supervise the copying of the data on the server and drives.
12.
That the independent solicitor shall personally supervise and facilitate the execution of Orders 9 and 11 herein and in particular, shall:
(a) attend at all times during the execution of the order at the business premises;
(b) prepare a record of the execution of the order including a record of the computer server and drives seized and of the device or medium on which the copied data is stored; and
(c) maintain physical possession of the server and drives seized pursuant to the orders until their return to the premises and of any device or medium on which the copied data is stored, pending further order of the Court.
13.
That the independent solicitor is restrained from releasing or allowing access to the seized computer or drives or any device or medium on which the copied data is stored other than by the computer expert and only for the purposes of compliance with these orders, pending further order of the Court.
14.
That pending further order the applicant by herself her servants and agents be otherwise restrained from accessing any information on or copied from the said server and drives.
15.
That the Court requests that the Marshal of this Court and officers of the Federal Police and/or the New South Wales Police assist in the execution of these orders, including by accompanying the applicant or her nominee on the service and execution of the orders.
16.
That leave is granted to either party or to any other person or entity affected by these orders to restore the matter to the list on giving 24 hours’ notice to the Court.
17.
That the wife’s Initiating Application filed 29 October 2014 be stood over to 10.00 am on Tuesday 11 November 2014.
18.
The Court noted that these Orders are made on the usual undertaking given by the wife.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.