Sasmita and Sasmita

[2018] FamCA 1102

FAMILY COURT OF AUSTRALIA

SASMITA & SASMITA [2018] FamCA 1102

FAMILY LAW – PROPERTY – Ex-parte hearing – where the wife is aware of a number of transaction by the husband in relation to the parties’ assets – where the wife alleges the husband is removing assets out of Australia – where the wife alleges the loan secured over a property in Queensland has increased by approximately $510,000 – interim injunction made against the husband restraining him from drawing down upon or increasing the borrowings or loan amounts secured against a property in Queensland or from further encumbering the said property – the wife provided an undertaking as to damages – proceedings adjourned to allow the husband to file responding material.

Family Law Act 1975 (Cth) ss 4(1), 114.

APPLICANT: Ms Sasmita

RESPONDENT: Mr Sasmita

FILE NUMBER: MLC 13881 of 2018

DATE DELIVERED: 4 December 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 December 2018

REPRESENTATION

SOLICITOR APPEARING

 FOR THE APPLICANT:

Mr Ross

SOLICITOR FOR THE APPLICANT: Blackwood Family Lawyers

THE RESPONDENT Ex-parte application

Orders

UPON the applicant wife MS SASMITA of B Street, Suburb C giving an undertaking to pay any damages of the respondent arising as a result of these orders:

it is ordered

1. That until 4.00pm on 19 December 2018 the husband be and is hereby restrained by himself, his servants or agents from drawing down upon or increasing the borrowings or loan amounts secured against the title to the property situate at and known as D Street, Suburb E, Queensland … or from further encumbering the said property.

2. That the wife’s Initiating Application filed 30 November 2018 be adjourned for hearing in the Judicial Duty List at 10.00am on 19 December 2018.

3. That forthwith the applicant cause to be served on the husband by email to … and to his lawyers F Lawyers, 3000, sealed copies of:-

   (a)      Initiating Application filed 30 November 2018;

   (b)      Affidavit of the wife filed 30 November 2018;

   (c)      Financial Statement of the wife filed 30 November 2018; and

   (d)      These orders.

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 Sasmita & Sasmita 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 13881 of 2018

Ms Sasmita

Applicant

And

Mr Sasmita

Respondent

EX PARTE REASONS FOR JUDGMENT

1. The matter of Sasmita comes before the Court today in a Judicial Duty List upon the Initiating Application of the applicant wife filed 30 November 2018.

2. The only order sought this day is set out at paragraph 2 of the interim orders sought in the wife’s application, that is, an order that until further order, each party be and is hereby restrained from increasing the borrowing secured against the title of the property at D Street, Suburb E and/or encumbering the said property. 

3. The wife’s application is supported by her Affidavit also filed 30 November 2018.  The application has not been served on the husband, and the order is sought on an ex-parte basis. 

Background

1. The background to the application is as follows. 

2. The wife is Ms Sasmita.  She is aged 52 years and is a health professional, although has not worked in the past four years. 

3. The husband is Mr Sasmita.  He is aged 50 years.  He is a manager and is currently employed in the Middle East.

4. The parties commenced cohabitation in 2010.  They married in 2011 and separation occurred on 1 September 2018. 

5. The property, the subject of the proposed injunction, is a property purchased by the parties in 2012.  It is situated at D Street, Suburb E, Queensland (“the D Street property”).  The property was initially purchased in the husband’s name.  The parties, together, constructed a dwelling on that land and commenced occupation at that property in about 2013.  The wife deposes that in about 2016 the husband executed a transfer of land, transferring a one-half interest in the D Street property to the wife.  That transfer of land has never been registered.

6. The wife sets out a history of family violence she alleges has been inflicted upon her by the husband.  She deposes as to the husband physically assaulting her, abusing her, and belittling her.  She describes him as being controlling and domineering.  Those allegations are particularly set out at paragraphs 8 to 14 of her affidavit. 

7. The wife also deposes that the husband largely controlled their financial affairs.  She deposes that she had little knowledge of their financial position during the course of the relationship.

8. The circumstances described in the lead up to the parties’ separation are set out at paragraphs 39 to 44 of the wife’s affidavit.  She there deposes that it was intended that she would be travelling to join the husband in the Middle East.  She deposes that the husband cancelled her airline ticket enabling her to join him in the Middle East.  She deposes that following the cancellation of her flight the husband ceased all communications with her.  Further, she deposes at paragraph 41 of her affidavit that the husband blocked her access to the parties’ savings accounts and credit cards.

9. The wife borrowed funds from her adult child in order to travel to the Middle East to rejoin the husband.  Upon her arrival in the Middle East in late August 2018, she found that she had been locked out of the parties’ home in the Middle East,  At paragraph 44 of her affidavit, the wife deposes that on or about 23 November 2018, she learnt that the husband had listed the D Street property for sale.  She discovered this when perusing a website, realestate.com.au.  Since the parties’ separation the wife has endeavoured to obtain more information from the husband as to their financial circumstances. 

Transactions by the husband

1. The wife deposes that she has become aware of a series of transactions which have heightened her concern as to the manner in which the husband has been dealing with the parties’ assets; she is concerned that the husband is taking action so as to remove assets from Australia.

2. Those transactions are particularly set out at paragraph 58 of her affidavit.  She there deposes as to the husband’s transfer of large amounts of money from accounts held by him to unknown accounts. In particular, I refer to the transfer of $267,000 from an ANZ account to an account not known to the wife.  That transaction occurred in July, 2017.  In September, 2017, there was a further transfer of $270,000 from an ANZ account to a G Bank account with the named beneficiary as “H”.  This is an account based in the United Kingdom.

3. The wife gave some oral evidence today.  She confirmed during her oral evidence that she became aware of the abovementioned transactions only in the last few weeks.  There are other transactions by the husband relating to the transfer of foreign currency which she discovered about a year ago.  It is submitted on her behalf that due to the history of family violence, as set out in her affidavit, that the wife was fearful of taking action which might have exposed her to further family violence; she was fearful and did not wish to anger the husband in the context of what was then a continuing marital relationship.

4. The wife deposes at paragraph 57(a) of her affidavit that to the best of her knowledge, the D Street property had until recently an equity of approximately $850,000.  She deposes that the last occasion upon which she saw a mortgage statement in relation to the ANZ Bank loan secured over the title of that property, there was an outstanding balance of $90,000. 

5. During her oral evidence, the wife confirmed that over the course of the weekend just passed, she has been engaged in text communications and also email communication with the husband.  The husband has informed her via text message that he has received two offers in relation to the sale of the D Street property.  The wife, via text message, inquired as to the current balance owing on the mortgage to that property.  The husband’s response to that inquiry was that there was a balance of $604,000.  It would seem that based on the wife’s evidence, there has been an increase in the mortgage balance in the past year of something in the order of $510,000. 

Conclusion

1. It is as a result of the increase in that mortgage liability that the wife says that an injunction should be granted pursuant to section 114 of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 114(1)(e) of the Act provides that in proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in sub-s 4(1) of the Act, the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relating, including an injunction in relation to the property of a party to the marriage.

3. Section 4(1)(e) of the Act defines a matrimonial cause as proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship.

4. I am satisfied, having regard to those provisions, that I have the power to make orders as sought by the wife. 

5. The wife seeks final property relief in her initiating application filed on 30 November 2018. 

6. I am mindful, of course, that this is an ex-parte hearing.  The husband has not yet had the opportunity to put his position before the Court.  It may be that there is a reasonable and plausible explanation for the transactions that are complained of by the wife.  However, having regard to the evidence of the wife as to what the mortgage balance was a year ago, and having regard to the text message received by the wife from the husband, which occurred on 2 December 2018, I am satisfied that it is proper that an injunction be made for the short period of time to 19 December 2018, so as to enable a preservation of the parties’ interests pending the husband having an opportunity to put his case before the Court.

7. What I intend to do is to grant the injunction and to adjourn the wife’s application to 19 December 2018.  That will afford the husband the opportunity to file material in response and to attend Court and be heard in relation to these issues at that time. 

8. The wife has, quite properly, offered to give an undertaking as to any damages suffered by the husband as a result of the injunction I am asked to make.  In those circumstances, that bolsters my view that it is appropriate in all of the circumstances to make orders for injunctive relief. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 December 2018.

Associate: 

Date:  4 December 2018