Naboka and Naboka

[2008] FamCA 1183

FAMILY COURT OF AUSTRALIA

NABOKA & NABOKA [2008] FamCA 1183

FAMILY LAW – PROPERTY – Restraint from dissipating monies from company accounts – Costs reserved

Family Law Act 1975 (Cth)

APPLICANT: Mr Naboka

RESPONDENT: Ms Naboka

FILE NUMBER: MLC 11732 of 2008

DATE DELIVERED: 31 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms P.J. Treyvaud

SOLICITOR FOR THE APPLICANT: GADENS LAWYERS

Orders

1. That the husband have leave to proceed on an interim basis without notice to the wife.

2. That all applications be adjourned before me at 10 am on 2 January 2009.

3. That this order be expedited.

4. That the wife by herself, her servants and agents be and is hereby restrained from dissipating the whole or any part of the sum of $786,000 withdrawn by her from the company accounts of the parties on or about 29 December 2008.

5. That the husband forthwith arrange service upon the wife of a copy of the application for final orders, financial statement and affidavit, all filed on 31 December 2008 and a sealed copy of these orders.

6. That my reasons be transcribed and be made available to the parties.

7. That the husband's costs of this day be reserved to be determined on 2 January 2009.

8. I certify for counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11732 of 2008

MR NABOKA

Applicant

And

MS NABOKA

Respondent

REASONS FOR JUDGMENT

1. This is an urgent application that has been brought on this afternoon in the truncated judicial duty list.  It is an application sought to be proceeded with on the basis of no notice being given to the respondent wife.

2. The matter relates to the unusual and perhaps bizarre withdrawal of a substantial sum of money from a bank account by the wife yesterday, 30 December.

3. The parties are married to each other.  They married in 1991 in India.  According to the husband's affidavit which I am relying on, he says there have been difficulties in the marriage for approximately the last 12 months and the parties have been living separately but under the one roof.

4. The wife and the husband are both directors of the family company and are also shareholders.  According to the husband, the wife does not have access to the banking operation.

5. According to the affidavit, on or about 29 December, and more likely on 30 December, but certainly around those two days, the wife has drained the bank accounts of a total sum of $786,000.  The husband says that he spoke to the wife by telephone yesterday afternoon at approximately 4.30 pm where she acknowledged that she had withdrawn the funds and that they were safe.

6. He has asked me today to proceed with the matter on the basis that she is not served, because of the fact that he anticipates that she might run to India which is her home of birth, notwithstanding that both parties are permanent residents of Australia and have been here for a number of years.  In the circumstances, and having regard to the period of time that I propose to have elapsed before the matter comes back, I do not see any prejudice to the wife in restraining her on an ex parte basis from using the funds.

7. The application also seeks orders relating to her departure from Australia, but having regard to the short period of the adjournment that application is not pressed.

8. The power to make an order is set out in s 114 of the Family Law Act 1975 (Cth), and apart from anything else, that section is directed to the protection of assets of the parties.  It seems to me this is an appropriate exercise of the discretion and I find that it is proper to make the order.

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  6 January 2009