Palin and Palin

[2008] FamCA 1218

FAMILY COURT OF AUSTRALIA

PALIN & PALIN [2008] FamCA 1218

FAMILY LAW – PROPERTY – Interim – Ex parte

APPLICANT: Ms Palin

RESPONDENT: Mr Palin

FILE NUMBER: MLC 10089 of 2008

DATE DELIVERED: 14 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.J. Indovino

SOLICITOR FOR THE APPLICANT: Voitin Walker Davis

COUNSEL FOR THE RESPONDENT: NA

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the further hearing of the Wife’s application filed 6 November 2008 to Registrar Riddiford at 2.15 pm on 2 December 2008 for directions and if necessary the matter be listed before me later that day.

2. That on or before 12.00 noon on 1 December 2008 the husband file and serve:-

   a)A Notice of Address for Service;

   b)      Any response or cross application to the wife’s application filed 6 November 2008;

   c)      Any affidavit evidence upon which he proposes to rely in response to that of the wife or upon which he relies in relation to the determination of interim issues;

   d)      That the husband include in the aforementioned affidavit a description as to amount and account numbers of how he has applied the monies that he received on the termination of his employment in 2008, being the sum described by the wife in paragraph 13 of her affidavit; and

   e)      Any financial statement upon which he proposes to rely.

3. That until further order or 5.00 pm on 1 December 2008 (whichever is earlier) the husband and the wife by themselves their servants and/or agents be and are hereby restrained from drawing down on the following facilities :-

   a)      The Perpetual Trustees Australia Limited Mortgage No. … secured over the property at V, Victoria;

   b)      The Aussie Residential Loan Account No. …; secured over the property at V, Victoria;

   c)      Mortgage No. … in favour of the National Australia Bank secured over the property at W, Queensland;

   d)      The joint National Australia Bank Account No. … below a balance of $50,000.00. 

4. That the wife be at liberty to have her application for sole use of the property situated at  V, Victoria relisted for determination in the event that the husband re-enters Australia and does not agree to reside elsewhere.

5. That the wife forthwith serve the husband by electronic communication, being email …@hotmail.com with the following:-

   a.This Order;

   b.The Application of the wife filed 6 November 2008; and

   c.The wife’s financial statement sworn 6 November 2008.

6. That the evidence of the wife given this day this day be transcribed and a copy of the transcript be made available to each party.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10089 of 2008

MS PALIN

Applicant

And

MR PALIN

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me in the duty list, the wife seeking a raft of injunctive relief to preserve property and have sole use and occupation of the property at V.  The application proceeds ex parte the husband.

2. The husband is 50 years of age.  He is currently overseas, where he is engaged in operating a business. The wife is 52 years of age and is employed as a part‑time shop assistant.

3. The parties were in a relationship between 1987 and January 2008.  There is one child of the marriage, R, born 13 January 1993.  She attends a Catholic school in H.  She is in Year 10.

4. As indicated, the wife seeks her orders ex parte.  She asks the court to make orders without according the husband procedural fairness or natural justice and in essence without me having an opportunity to hear from him.  When advised that the wife was ill and unable to attend court, I indicated that I was not prepared to proceed with the matter in the absence of her oral evidence in support of her application and an undertaking as to damages. 

5. She attended court and gave evidence before me.  I direct that that evidence be transcribed and when transcribed a copy be made available to each party.

6. The orders that the wife seeks be made would have the effect of freezing or preventing the husband from using any account which the wife has to date identified, in which the husband has an interest.  That would include some accounts which she has identified but does not know what is in them.  I will not be making orders in those terms.  It would rarely, if ever, be appropriate to remove the access of one party to any funds on an ex parte basis. 

7. The wife's application also sought that the husband authorise a line of inquiry under the Anti-Money Laundering and Counter-Terrorism Financing legislation.  She does not pursue that today on an ex parte basis but she does seek sole use and occupation of the former matrimonial home and payments to herself of a lump sum and some money by way of security.

8. In very brief compass, there appears to be real property in Australia, being the former matrimonial home at V which is worth $700,000 and is encumbered by a mortgage which would secure advances up to $70,000.  There are no advances at the moment. 

9. There is an investment property at W in Queensland which the wife estimates is worth approximately $375,000.  It is security for a facility of $130,000 on which no funds are now outstanding.

10. There appears to be the proceeds of approximately $100,000 (about 316,000 Saudi Riyals), of a lump sum payout or redundancy package consequent upon the husband's cessation of employment on 31 August, 2008.  The relevant paragraph is number 13 in the wife's affidavit.  There appears to me to be a mixture of currencies, so that it is not clear to me how much the redundancy was actually worth.

11. The wife has approximately $15,000 in cash in various currencies.  There are financial institution deposits of about $146,000 with National Australia Bank which is the husband's inheritance; an unspecified amount in a National Australia Bank Common Fund trading account and superannuation of $20,000.  The wife, in her affidavit, deposes as follows: -

    12. My husband controlled and managed our finances during the marriage. My husband did not discuss financial matters with me. He has a number of accounts with Saudi Hollandi bank, which he opened many years ago whilst employed in Saudi Arabia, Isle of Man, UK, Australia or elsewhere.

    14. My husband has not discussed the financial arrangements he has made       with me since his resignation or generally, and I only became aware of       same when I discovered various documents that are annexed thereto.

    22. That on more than one occasion during the later stages of our         relationship, my husband has threatened, “You will get nothing” and           “I will burn the house down”.

    23. I have concerns that my husband will return to Australia and may well endeavour to access the mortgages that are still ‘operative’ that are secured on the properties in Queensland and [V]. He may well draw down on funds from his superannuation given that he is essentially off-shore. I have no knowledge of his current partnership arrangement with Mr [O]. I am uncertain as to what moneys he has off-shore that are not otherwise referred to in the exhibits hereto.

    24. That on 26^th of October 2008, my husband telephoned me from      America. It was apparent that he had been drinking. He advised that flying to Malaysia and onto Melbourne. I am not aware of the exact     date of his return to Melbourne at this time.

12. In evidence the wife says that she last spoke to the husband on Tuesday of this week, when he indicated that he will not be returning to Australia until 24 December, 2008.  She says that he also confirmed that his belongings had arrived from Saudi Arabia and were stored in the garage and that he had inquired whether or not that was inconvenient to her.  She said that it was not.

13. The wife says that she has no control of any of the accounts, although the husband has paid money into the account when requested to do so this week and approximately three weeks ago.

14. The wife's evidence does not satisfy me that the husband has been endeavouring to conceal matters from her to any significant degree. 

15. The relief sought by the wife is pursuant to section 114(3) of the Family Law Act 1975 which empowers me to grant such an injunction as would be just and convenient.  There are various factors to take into account.  In this case the overwhelming factor is that the husband lives offshore.  There would also appear to be some significant assets offshore.  Because of these factors, I accept that there is a greater than usual risk that whatever the wife’s ultimate award by way of a final alteration of property interests, may be less enforceable than if the husband and all of the divisible assets were within Australia.

16. It was apparent that the wife did not know what was in various accounts she otherwise sought to enjoin.  Therefore, I will provide that the wife has to serve the husband forthwith electronically at an email address that she gave evidence of as being an accurate email address.  I am assuming that he will be served with the documents or they will come to his attention within the next week.  They should be sent immediately and it seems to me reasonable that he could file documents by 1 December, whether or not he is within the jurisdiction.

17. I will make an injunction in much lesser terms than that sought by the wife.  It will last until further order or 1 December 2008, whichever is earlier.  It will be directed to the real property and to only one bank account.

18. In my view, this matter needs some careful monitoring because I have made certain injunctive orders without the husband having an ability to be heard.  I am not satisfied that these orders should continue indefinitely.  Accordingly, I will refer the matter to Registrar Riddiford on 2 December 2008 at 2.15 pm. for review.  It can also be listed before me on that day if need be.

19. There is the matter of sole use and occupation.  I do not make the orders sought by the wife.  There does not appear to be any immediate need to do so.  I will give her liberty to prosecute her application in the event that the husband re‑enters Australia and does not agree to reside elsewhere.

20. Having observed the wife in the witness box, she is clearly upset and stressed by these proceeding.  In the event that it is necessary to determine sole use and occupation, that should be done as quickly as possible with some social science input by a family consultant attached to this court or otherwise.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  11 December 2008