Sair and Sair

[2009] FamCA 347

FAMILY COURT OF AUSTRALIA

SAIR & SAIR [2009] FamCA 347

FAMILY LAW – CHILDREN – Restraining orders – Airport watch list
FAMILY LAW – PROPERTY – Restraining orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Sair

RESPONDENT: Mr Sair

FILE NUMBER: MLC 3640 of 2009

DATE DELIVERED: 28 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.A. Mort

Orders

1. That all outstanding applications be adjourned to the Senior Registrar’s List at 9.45am on 29 May 2009.

2. That there be liberty to apply on short notice.

3. That until further order the children D born … January 2000 and M born … May 2002 live with the wife.

4. That the husband, his servants and agents, be and are hereby restrained from encumbering or further encumbering the real properties at L Street, S Street, and 2S Street, P.

5. That until further order, the husband (born … October 1969) his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children D (Male) born … January 2000 and M (Female) born … May 2002 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders their removal.

6. That until further order, the husband and the wife be and are hereby restrained by themselves and their respective agents from in any way altering, amending, adding to or substituting, any of the current office holders and/or shareholders in the corporate entity U Pty Ltd.

7. That until further order, the husband be and is hereby restrained by his servants and agents and by himself from withdrawing or attempting to withdraw, any funds from any accounts held in the names of:

   (a)the husband;

   (b)the wife; or

   (c)U Pty Ltd in trust for U Trust

   being account numbers held at the Commonwealth Bank of Australia:

   (a)     …33;

   (b)    …47;

   (c)    …57;

   (d)    …65; and

   (e)    …50.

8. That a sealed copy of these orders be served on:

   (a)    the proper office for the Australian Securities and Investments Commission; and

   (b)    the Manager of the Commonwealth Bank at P.

9. That the wife’s application and affidavit filed this day and a sealed copy of these orders be served upon the husband by way of substituted service as follows:

   (a)    on the husband’s brother P Sair at …; and

   (b)    on the husband’s mother G Sair

   with an accompanying letter requesting that they cause such documents to be provided to the husband as soon as practicable.

10. The wife’s costs of the day be reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3640 of 2009

MS SAIR

Applicant

And

MR SAIR

Respondent

REASONS FOR JUDGMENT

1. This is an application in the duty list brought in on an urgent basis late in the afternoon.  It is the wife seeking a variety of parenting orders and also some injunctive relief. 

2. The evidence upon which the application is based is set out in an affidavit filed in the court this day.  It involves two children, D and M, both of whom are under the age of 18 years.  The wife deposes in her affidavit to the fact that she has been the primary carer of those children.

3. The affidavit also sets out that the wife and the husband for a number of years have run a very successful business which, on the minutes of orders that have been handed to me, have a number of bank accounts.  Yesterday the husband removed the children from Australia on an Emirates flight to, ultimately, Lebanon; from where the parties originally came.

4. The circumstances under which that occurred look extraordinarily suspicious, including - if what the wife asserts to be true - breaches of a number of Commonwealth laws.  That is not much consolation if the children are not here, but I propose to make orders that in the event that the children are back within the Commonwealth of Australia, they live with their mother and there be the usual injunctions preventing them from leaving the country again.

5. In relation to the business side of things, the wife deposes to the fact that whilst there is substantial debt, there are also significant assets.  There is a bank account run by the business which according to the wife has about $63,000 in it, and while she was at the Commonwealth Bank this morning, the husband's brothers attended wanting to take action that might vest control of the business in them.  That would be inappropriate at this stage, so I see no reason why the husband ought not be temporarily injuncted from taking any steps that might affect the interests of the wife. 

6. To ensure that, having regard to the husband's surreptitious behaviour yesterday, the appropriate authorities are made aware of the fact that the court is concerned about what has happened here,  I propose to make specific orders that the Australian Securities and Investments Commission and the Commonwealth Bank be served with a copy of these orders.

7. It appears that both families have come from a similar location in Lebanon, and as such there is not a large geographical distance between various relatives.  On that basis, there should be able to be obtained information about the interests of the children.  As a precaution I propose to make orders that the husband be served by service on his brother and on his mother, and to that extent a letter will cover those orders requesting that they be brought to the attention of the husband as soon as possible.  What happens thereafter, obviously, is a matter for the matter for the wife to find additional information.

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  6 May 2009