Stantic and Stantic

[2008] FamCA 415

FAMILY COURT OF AUSTRALIA

STANTIC & STANTIC [2008] FamCA 415

FAMILY LAW – ORDERS – Urgent interim financial injunction

Family Law Act 1975 (Cth)

APPLICANT: MRS STANTIC

RESPONDENT: MR STANTIC

FILE NUMBER: MLC 4466 of 2008

DATE DELIVERED: 26 MAY 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 26 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR STOJAKOVIC

SOLICITOR FOR THE APPLICANT: ZEKJO STOJAKOVIC

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED EX PARTE:

1. THAT the further hearing of all extant applications be adjourned to the Judicial Duty List at 10.00 a.m. on Wednesday 4 June 2008.

2. THAT I direct the husband attend personally, or with his legal practitioner, at that time and on that date.

3. THAT until further order the husband, his servants and agents be and are hereby restrained from drawing down on the mortgage or any other available credit facility with the National Australia Bank against the security of the property situate at and known as Unit 1.

4. THAT the husband provide to the wife’s solicitors and to the Court on the adjourned hearing date a statement of account showing monies withdrawn, post the separation date of 4 April 2007 from any banking or credit facility secured by one or either of the units situate at Unit 1 and Unit 2.

5. THAT until further order the wife’s solicitors retain in their trust account the balance of the proceeds of sale of Unit 1 and amounting to a sum of approximately $34,700.

6. THAT a sealed copy of these Orders be forthwith served by the wife’s solicitors upon the husband and upon the National Australia Bank, Sunshine Branch with an appropriate affidavit of service available to the Court on the adjourned hearing date.

7. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

8. THAT the balance of interim orders sought this day, but not granted be otherwise adjourned for consideration by the Court on the adjourned hearing date.

9. THAT the legal costs of and associated with the wife’s representation at Court this day be fixed in the sum of $800 but the payment thereof be reserved to the determination of the Judge on the adjourned hearing date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4466 of 2008

MRS STANTIC

Applicant

And

MR STANTIC

Respondent

REASONS FOR JUDGMENT

1. In the matter of Stantic, Mr Stojakovic, solicitor, appears for the wife who is in court and has the assistance of an interpreter.  The husband is not present.  The wife filed on 19 May, application seeking interim and final orders of a property and injunctive nature.  That application was supported by an affidavit and various annexures thereto.  I observe that the affidavit does not have the interpreter's clause attached thereto and this is a procedural matter for the wife's solicitor to better address.  There is an affidavit of service filed which deposes to the fact that Mr L served the husband on 20 May at 7.45 a.m. at an address in G.  On the face of that affidavit of service I accept for these interim purposes that service upon the husband though I observe that he has had only four days, including a weekend, to obtain instructions and to be at court this day.

2. What I propose to make are certain interim orders of a holding nature and to direct the husband to be at court on the adjourned date which I will fix as soon as practicable, and for Wednesday 4 June 2008 at 10.00 a.m.  The application for orders sought on an interim basis is somewhat extensive and there are orders there that I would not pronounce, and in particular orders sought in paragraphs 2, 3, 8, 9 (and also the next number 9 as wrongly numbered) and 10 therein.

3. The essence of the complaint is that the parties separated after approximately 10 years of marriage.  There is one child who is now 8 years of age.  The parties had developed various residential units and currently they owned at separation two properties, unit 1 and unit 2.  Both were registered in the husband's sole name.  Post-separation the husband has now completed the sale of unit 1 and after he allegedly accessed the mortgage account and drew moneys to his own benefit therefrom, there remains $34,772 approximately.  Those moneys are now lodged in the trust account of the wife's solicitor, and I will require those moneys to remain in that trust account pending further order. 

4. Unit number two remains unsold and the issue before the court is that the husband has and may likely continue to access the available line of credit secured against that property with the National Australia Bank.  What is sought on an urgent basis is a restriction on the husband's ability to access that facility.  I have carefully read the wife's affidavit.  Whilst there are other matters and facts that the court would be assisted by, the general complaint is that post‑separation the husband has drawn down moneys, presumably to his personal benefit. 

5. I have read paragraph 9 of the wife's affidavit and her endeavours to obtain an explanation from the husband were seemingly met with a response that, "He had spent the money on his own enjoyment".  The immediate concern of the wife is expressed in paragraph 10 that the husband may or has likewise dealt with the mortgage on unit 2 to reduce the available equity.  The court, of course, is required to be cautious and prudent in granting any interim injunction.

6. In this case the starting position is the fact that after a marriage of 10 years and developing these two properties they are registered in the husband's sole name and he seemingly has acted, it is alleged, to the financial detriment of the wife in accessing and spending and thereafter not accounting to her for those moneys.

7. What I propose to do is to restrict any access to that title or equity that the husband should have by injunctive order directed to him.  The order will not be directed to the National Australia Bank, but clearly a copy of these orders should be served upon that bank and they should be aware of the wife's financial concerns and of course of the interim orders of this court.  It will be required of the wife's solicitor that these orders be forthwith served upon the husband, together with a copy of these extempore and short reasons for judgment.

1. I will require the husband to attend court on 4 June at 10 am and for his information I record the address of the court as being 305 William Street Melbourne. 

2. I will limit the extent to the interim and urgent injunctive orders to preserve and protect what asset remains and the court on the return date is wholly open as to any variation or further extension of these interim orders.  I conclude on the affidavit material that these orders are required.  They are necessary and they are just.  I do not intend to require the wife to provide an indemnity as to any potential damage.  Clearly the husband has had some moneys to his benefit.  I am merely restraining his access to further draw down any moneys over the next nine days. 

3. I will have these brief reasons transcribed, placed upon the court file and made available to all parties.  I will have the court forward by pre-paid mail to the husband the orders and the brief reasons to the address at which he was served and where I am told he resides, that is, …, G..

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:                
Date: 17 June 2008