PEDRAD & PEDRAD

[2017] FamCA 1185

FAMILY COURT OF AUSTRALIA

PEDRAD & PEDRAD [2017] FamCA 1185

FAMILY LAW – PROPERTY – undefended interim hearing – application of the wife – where the wife seeks that all future rental income generated by the investment property be distributed to the wife – where the husband is in custody awaiting committal hearing – where the husband did not appear in court and was not represented on the day – order that until further order the rental income be distributed to the wife and that the husband be restrained from receiving the same

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Pedrad

FIRST RESPONDENT: Mr Pedrad

SECOND RESPONDENT: The Director, Office of Public Prosecutions

FILE NUMBER: MLC 11653 of 2016

DATE DELIVERED: 23 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 23 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Conlan

SOLICITOR FOR THE APPLICANT: Women's Legal Service

THE FIRST RESPONDENT: No Appearance

COUNSEL FOR THE SECOND RESPONDENT  : Ms Larranzio

SOLICITOR FOR THE SECOND RESPONDENT: The Director Office of Public Prosecutions

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the husband, by himself, his servants and/or agents, be and are hereby restrained from receiving the rental income from the real property situate at and known as B Street, Suburb C in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“B Street”).

2. That the husband and wife forthwith do all acts and things and sign all necessary documents to direct and authorise the managing agent of B Street being D Real Estate of Suburb E, to pay the rental income of B Street commencing from the next rental payment cycle due on 26 May 2017 to the wife’s nominated bank account being ANZ Access Advantage Cheque Account (BSB … account number …22).

3. That in the event that the husband fails to sign the said authority pursuant to paragraph 2 within 72 hours of the authority being provided to him a Registrar of the Family Court of Australia is hereby appointed to sign the said authority or any other such document that may be required to give effect to these orders on behalf of the husband pursuant to s 106A of the Family Law Act 1975 (Cth) upon the solicitor for the wife filing an affidavit as to the authority having been provided to the husband and his failure to sign same.

4. By 4.00pm on 4 July 2017 the applicant file and serve a further amended initiating application setting out with precision the final orders she seeks.

5. By 4.00pm on 1 August 2017 the husband file and serve a response to further amended initiating application, any affidavit and financial statement that complies with Rule 13 of the Family Law Rules 2004 (Cth).

6. That within 28 days from the date of these orders the husband provide to the wife’s solicitors the following documents:

   (a)Last three years of personal income taxation returns and notices of assessments;

   (b)Last 12 months of bank statements for all accounts in his sole name or jointly with another including but not limited to the following:

   i.savings accounts;

   ii.cheque accounts;

   iii.loan accounts;

   iv.mortgage accounts; and

   v.investment accounts including term deposits;

   (c)Latest 12 months of rental income statements and income and expenditure statements (or financial reports) for B Street; and

   (d)Latest superannuation statement for all superannuation entitlements he has in his name. 

7. As soon as practicable, the applicant cause a sealed copy of these orders to be served upon the first and second respondents.

8. All extant applications be otherwise adjourned to the Registrar’s Directions Hearing List at 9.30 am on 1 September 2017.

IT IS CERTIFIED THAT

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

AND THE COURT NOTES THAT
The applicant will seek leave to proceed with her application for final property orders on an undefended basis at the next court date in the event the first respondent does not comply with orders 5 and 6 herein.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedrad & Pedrad has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11653  of 2016

Ms Pedrad

Applicant

And

Mr Pedrad

First Respondent

And

The Director Office of Public Prosecutions 

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before me this day is the wife’s Application in a Case filed 16 May 2017, in which she seeks orders essentially authorising the payment of rental income from a property at B Street, Suburb C (the “B Street property”) to be paid to her in lieu of the husband.  The B Street property is registered in the husband’s name alone. 

2. The husband and wife in this case were married in Country F.  The wife deposes that she does not know the exact date of their marriage, as she was very young and immature at the time of that marriage. There are seven children of the marriage, who range in age between 21 years of age and one year of age. The children all live with the wife.

3. The wife is engaged in home duties, and has been engaged in home duties since the parties’ marriage and in particular since the parties came to Australia.  The parties separated following the husband’s arrest in early 2016.  The husband has been charged with 41 offences, including 23 counts of incest by a parent, 15 counts of sexual assault and other offences relating to two of the children of the marriage.  The husband is on remand and has been committed to stand trial.

4. The trial was due to commence on 1 May 2017 in the County Court of Victoria and is expected to run for 20 days.  As a result of difficulties the husband has had with funding his legal representation, the trial has now been delayed and has been set down for a further 20 day hearing in August of this year.  There is a hearing with respect to the funding of the husband’s legal representation listed for 31 May 2017.

5. The wife deposes in her Affidavit filed 15 February 2017, that she is in receipt of Centrelink benefits of $619 per week and has no other source of income.  She pays all the expenses for the children and for herself from those Centrelink payments, including food, clothes, school expenses, childcare, gas, electricity, water, petrol and car expenses. She pays all the expenses relating to the property in Suburb C, where she lives with the children of the marriage.  She has also been meeting the expenses for the B Street property, that property being the subject of this current application. She deposes in her Affidavit filed 16 May 2017 that the rental income is being deposited into a bank account, which she assumes is in the husband’s name. She is also now aware, as a result of documents subpoenaed in relation to that account, that in October 2016 the husband withdrew, in small amounts, some $10,000 from that account.  That coincided with the committal hearing.  Although she does not know for certain, it is a reasonable inference to assume that the husband used this money for his legal expenses of that committal hearing.

6. The wife deposes that since February 2016, notwithstanding that she has not been receiving the rental income for the B Street property, she has been paying the council rates, water rates and insurance for the property.  She has now been advised by the agent who manages the property, that the property requires some repairs and maintenance.  Clearly, she would say, she does not have the money for that. 

7. The wife has filed a Financial Statement and in that Financial Statement she deposes to having borrowed money from family members, in the sum of approximately $17,500 in order to meet her ongoing expenditure for the family and to meet the expenses associated with the B Street property. 

8. I have before me an Affidavit of Service and an Acknowledgement of Service. I am satisfied that service of the application and the Affidavit’s sworn by the wife and a copy of the Affidavit of Ms H was served upon the husband on 18 May 2017.  I am also satisfied that a letter was served upon the husband, as required, indicating that he could appear, and in fact it says he should appear, by electronic means and he has not done so. 

9. In fact, it would appear that the husband has taken little or no part in these proceedings at all.  It is submitted on behalf of the wife that the only steps the husband has taken is that in the face of an application by the wife to have funds held in trust from the sale of a property released to her, that the husband ultimately signed the authority required for that to occur.  That being said, orders were made, in any event, to that effect.

10. In all of the circumstances, I am satisfied that I should make the orders the wife seeks this day. Those orders, which are to be made until further order, restrain the husband from receiving the rental income from the B Street property and authorise the managing agent to pay that rental income to the wife. This will enable the wife to meet the expenses of that property, and any excess can be applied to the necessary expenditure for the family.  It is always open to the husband to ask the wife to account for the expenditure she has made, albeit on the face of the evidence before me, it would appear that the costs of supporting herself and the family are likely to far exceed the amount she receives by way of Centrelink benefits.

11. The criminal trial has now been adjourned until August, it is proposed that this matter be adjourned to the Registrar’s Directions List, for essentially case management.  I propose to make orders requiring the husband to file answering material.  If he does not do so, he is on notice that the wife will be seeking to have the property proceedings proceed on an undefended basis. At the Registrar’s Directions List, the Registrar can make whatever directions that may be necessary to progress the matter, whether that is by way of a contested hearing or on an undefended basis.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan J delivered on 23 May 2017.

Associate: 

Date:  13 March 2020