Surrey and Surrey

[2008] FamCA 107

FAMILY COURT OF AUSTRALIA

SURREY & SURREY [2008] FamCA 107

FAMILY LAW – PROPERTY – Interim injunction

Family Law Act 1975 (Cth)

Sieling (1979) FLC 90-627

APPLICANT: MRS SURREY

RESPONDENT: MR SURREY

FILE NUMBER: MLC 1193 of 2008

DATE DELIVERED: 11 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. Gillard

SOLICITOR FOR THE APPLICANT: Keith Cameron Solicitors

Orders

1. That the application filed 11 February 2008 be adjourned to 9.30am before me on 15 February 2008.

2. That the wife have leave to proceed without notice to the respondent in respect of the application this day.

3. That until further order, the husband be restrained by injunction from disposing of, dissipating, or otherwise dealing with any of the funds drawn by him from the Westpac bank accounts referred to in the affidavit of the wife filed in these proceedings.

4. That the reasons for judgment this day be transcribed and a copy placed on the court file.

5. That the wife forthwith arrange personal service on the husband of,

   (a)      This order,

   (b)      The applications (2) filed 11 February 2008,

   (c)      The affidavit filed 11 February 2008.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1193 of 2008

MRS SURREY

Applicant

And

MR SURREY

Respondent

REASONS FOR JUDGMENT

1. This is an ex parte application that was filed during the morning and has been sent to me in the duty list.  The husband in these proceedings has not been notified of any application that is to be made.  The application by the wife seeks a variety of general orders in her substantive application, but in her application for interim orders she seeks that her husband be restrained from distributing and, or, expending any of the moneys he withdrew from the ING Bank Savings Maximiser account, as well as inform her as to the whereabouts of the money.  There are a number of other orders that are really not appropriate for me to deal with on this basis.

2. The facts that support the application are also at best vague.  It is suggested that both husband and wife suffer from acquired brain injuries; the husband having been injured in an accident in 2002, which has left him with a brain injury.  The wife asserts that her husband is prone to violence and is extremely irrational as a result of all of that and that is perhaps to some extent borne out by the fact that the State Magistrates' Court has made an intervention order against the husband.  It transpires that by agreement by the parties, the intervention order was altered but it ultimately precipitated another application being made on an ex parte basis on 8 February 2008.

3. The difficulty I have about all of that information is that in the application before the State Magistrates' Court on 27 December, the husband appears to have attended the court and admitted to the intervention order being made but denying the allegation set out.  To some extent, therefore, if he has got some health problems, it was not apparent to the State Magistrates' Court such as to cause them not to make the order.  That order seems to have been altered because the husband went back to live in the home.  I am told that the incident that gave rise to that first intervention order occurred on 23 December and that is referred to in the affidavit filed before me.

4. The subsequent events after the parties attempted a reconciliation suggest that there was a problem on Thursday 7 February.  There is no suggestion in the affidavit of an assault or other violent incident on that day but I am told from the Bar table that there was.  All the affidavit suggests is that the wife became aware in the evening that money in an account was less than there should have been and according to the affidavit, the wife confronted her husband at 11 pm that night and did not get a very satisfactory response as to what the husband had done with the money.

5. That then seemed to precipitate the application for another intervention order, which was made the following morning on an ex parte basis.  All of that is rather unsatisfactory having regard to the fact that this court and, presumably that court, was dealing with the matter on a one-sided story.  It has long been the view of this court that orders should not be made on an ex parte basis and particularly injunctions; not only because of the rules relating to natural justice, but also because of the fact that there are severe consequences.  The Full Court in Sieling (1979) FLC 90-627 said,

   Whenever a Court acts ex parte it is departing from one of the primary rules of natural justice, that each party should be given an opportunity to present his or her case to the Court. (See The Commissioner of Police v. Tanos (1957-58) 98 C.L.R. 383, 395-396; Lonard (1976) FLC ¶90-066 at p. 75,336.) For this reason, an ex parte order should be made only where there is a real and urgent need to protect a person or to preserve property and it should remain in force only until both parties can come before the Court.

6. In this case, I propose to take that seriously and make an order only for a limited period until Friday morning on the basis that the husband is to be served by a process server engaged by the wife as quickly as possible.  I do not propose to seek an undertaking for damages at this stage but I would certainly be seeking one from the wife if the matter goes beyond Friday. 

7. There is a significant amount of money involved in this particular case.  The wife suggests that there was over $900,000 at one stage and that there have been significant withdrawals over a space of time.  It may very well be that the husband is simply transferring money out of a joint account into an account of his own name, anticipating that the marriage might be breaking up.  Whatever has occurred, not only is the wife entitled to know but so is the court and each party has an obligation in any property proceedings to make full and frank disclosure.

8. However, for the purposes of this application, I propose to indicate that because of the amount of money involved and the absence of a clear explanation as to what has happened to it, combined with the rather fractious relationship between the parties, it is appropriate to depart from the normal rule that a party should not have orders made against them unless they have the opportunity to be heard.  As I said, I propose to make the order only for a limited period of time. 

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  26 February 2008