Taera and Taera

[2009] FamCA 1035

FAMILY COURT OF AUSTRALIA

TAERA & TAERA [2009] FamCA 1035

FAMILY LAW – PROPERTY – Injunctions

Family Law Act 1975 (Cth)

APPLICANT: Ms Taera

RESPONDENT: Mr Taera

FILE NUMBER: MLC 9456 of 2009

DATE DELIVERED: 21 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nehmy

SOLICITOR FOR THE APPLICANT: Maria Barbayannis & Co

Orders

1. That the wife have leave to proceed in the absence of and without notice to, the husband.

2. That the application filed 21 October 2009 be adjourned to 10.00am on 2 November 2009.

3. That the husband, either personally or via his servants or agents be restrained from the following:

   3.1Drawing any funds against any of the mortgages which encumber the properties in which he has an interest being as follows:

   3.1.1The former matrimonial home situate at and known as B property; and

   3.1.2T property.

   and in particular the ANZ Residential Investment loan account no. BSB … account no. …; and ANZ Residential Investment loan account no. ….

4. That the husband be restrained either personally or via his servants or agents from drawing any finds against the ANZ offset account no. BSB … account no. … being in the name of the husband and wife in these proceedings.

5. That notwithstanding s 121 of the Family Law Act 1975 (Cth), the wife have liberty to serve a copy of these orders upon the ANZ Bank.

6. That the wife forthwith serve upon the husband:

   (a)a copy of the application filed 21 October 2009 and the affidavit in support thereof;

   (b)    a copy of these orders;

   (c)    a copy of the reasons for judgment this day (when available).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9456 of 2009

MS TAERA

Applicant

And

MR TAERA

Respondent

REASONS FOR JUDGMENT

1. This is an application for injunctive relief sought in the absence of the respondent husband.  The basis of the application is that the parties’ marriage has been in some difficulty for some time.  The wife describes the husband as always being very controlling and threatening towards her and has advised her that she will never receive any money from the former matrimonial home in which both of them have resided for some years.  She goes on in her affidavit, upon which she relies, to say that her understanding was that last year there was no mortgage encumbering the home, but the husband subsequently purchased a business, and she understood, although she does not say on what basis, he borrowed $170,000.

2. She then says that in discussions with the husband, now having told him that she was consulting a lawyer, he informed her on a number of occasions that he would do everything in his power to prevent her from having any interest in the matrimonial home or his business.  The wife expresses a number of concerns about property issues, but the risk seems to me to be in two specific areas.  The first is in relation to the husband’s capacity to increase the borrowings secured against the home and what seems to me to be an investment property.  He is the sole registered proprietor of the matrimonial home, but a tenant in common with the wife in respect of the investment property.

3. The concern in relation to the increase in the mortgage is that the wife said that she understood that he was borrowing $170,000, but it would seem that the mortgage is now something in the vicinity of $370,000. 

4. The second area relates to some cash in the bank.  It may very well be that the cash in the bank is inextricably linked with the borrowings secured against the home.  There appears to be something in the vicinity of $200,000 sitting in an offset account.  There is no indication from the wife as to her understanding of what the husband might be using that for.  The husband conducts a business which is a takeaway shop, and the wife seems to have little knowledge other than what has been gleaned from her lawyers.

5. In respect of the injunctions sought in respect of the other assets, having regard to the short period of time during which this matter will remain extant before coming back to the court, no damage of any great note will be done. 

6. Natural justice is the hallmark of our legal system.  The wife offers an undertaking as to damages in respect of the injunctions, but having regard to the nature of the two assets to which I have referred, which I propose to injunct in the short period of time until the return date, it is my view that it is not necessary to call upon the wife for that undertaking.  In any event, I propose to give liberty to apply should such an injustice arise.

7. The power to grant an injunction lies in section 114 of the Act and that may be applied if the proceedings arise out of the marital relationship as defined in section 4 of the Act.  I am satisfied that this application does arise out of the marital relationship. 

8. Section 114 provides the court may grant such injunction as it considers proper with respect to the property of the parties to a marriage.  Restraining orders should not be made unless there is a risk of the defeat of the applicant’s claimed interest.  Because I do not know enough about the financial position of the parties – and particularly the husband in regard to the fact that he seems to have the sole directorship of the corporate entity, and therefore, presumably, the trust – it seems to me that this is a case where there is a real risk.  It is a case where injunctions are proper in circumstances. 

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

Associate: 

Date:  2 November 2009