UZUNLAR & UZUNLAR

[2016] FamCA 997

FAMILY COURT OF AUSTRALIA

UZUNLAR & UZUNLAR [2016] FamCA 997

FAMILY LAW – CHILDREN – Ex parte – Orders sought by the wife for the children to be placed on the Airport Watch List – Where the husband has made threats to remove the children to the husband’s country of origin – Orders made.

FAMILY LAW – PROPERTY – Ex parte – Orders sought by the wife restraining the husband’s dealing with the matrimonial property and for the husband to vacate the former matrimonial home – Where the husband has made threats to remove matrimonial property including the contents of a safety deposit box and jewellery – Where the husband controls the matrimonial property and the wife has no income – Orders made.

Family Law Act 1975 (Cth) s 114
Family Law Rules 2004 (Cth) r 5.12

Craig v Kanssen [1943] 1 All ER 108

APPLICANT: Ms Uzunlar

RESPONDENT: Mr Uzunlar

FILE NUMBER: SYC 7473 of 2016

DATE DELIVERED: 16 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 16 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Birchgrove Legal

FOR THE RESPONDENT: No appearance by or on behalf of the respondent

Orders

1. Leave is granted for the matter to proceed today on an ex parte and urgent basis.

2. The mother is granted leave to commence parenting proceedings without a Section 601 certificate.

3. The mother is to serve a sealed copy of these Order together with sealed copies of all documents filed by her in the proceedings upon the husband by no later than 4.00 pm on 18 November 2016. 

4. I DIRECT that these ex parte Orders be taken out today.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The matter is adjourned for mention before me at 9.30 am on 2 December 2016.

Parenting

1. The Father is restrained from removing the Children from the Commonwealth of Australia.

1. The father is restrained from using or applying for any passport in the names of each of the children, whether such passport is issued from the Commonwealth of Australia or elsewhere.

2. The Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place and/or keep the names of B born on … 2009 (a female) and C born … 2011 (a male) ("the Children") on the Airport Watch List, also known as the PACE Alert System, at all points of arrival and departure of the Commonwealth of Australia. The Australia Federal Police maintain an airport watch of the Children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

3. The Marshal of the Family Court of Australia and all Officers of the Australian Federal Police and of the Police Forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit the Father from removing or attempting to remove the Children from the Commonwealth of Australia.

Property

1. The husband is restrained from dealing with and accessing any safety deposit box with the Commonwealth Bank of Australia reserved for him and/or linked to account styled in his name, including but limited to the following:

   a.      Facility Number: …

   b.      Safe Custody ID: …

2. The wife's solicitor is granted leave to serve upon the Commonwealth Bank of Australia a copy of these Orders.

3. The husband is restrained from dealing with in anyway his right, title and/or interest in the Suburb D property and the Suburb E property, other than meeting the outgoings of each of the properties.

1. The husband is restrained from further drawing upon any mortgage or loan secured over the Suburb D property and/or the Suburb E property and further encumbering same, this includes but is not limited the facilities currently secured of one or both of the said properties by the National Australia Bank.

1. That the wife's solicitor are granted leave to serve upon the National Australia Bank a copy of these Orders.

1. The husband is restrained from dealing with his interest in the Suburb I property without given the wife 28 days written notice before doing so and in that notice providing all documents and details that are consistent with his obligations for full and frank disclosure under the Family Law Rules 2004 (Cth).

2. Pursuant to section 114(1)(b) of the Family Law Act 1975 (Cth) the husband is restrained by injunction from entering or remaining in the matrimonial home located at F Street, Suburb E (“the Suburb E property”), until 4.00 pm on 2 December 2016 or such other time as the Court may order, provided that this Order does not take effect until 7 days after the husband is served with a sealed copy of these Orders.

3. Within 7 days of service of a sealed copy of these Orders on the husband, the husband is to vacate the Suburb E property.

4. The parties are granted liberty to apply on 48 hour notice to Court and to the other party, including in respect to any application the husband may wish to make to seek a discharge or variation of any of the Orders made today.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Uzunlar & Uzunlar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7473 of 2016

Ms Uzunlar

Applicant

And

Mr Uzunlar

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the wife has applied for a number of orders set out in her Application in a Case filed 11 November 2016. By way of summary those proposed orders are to the following effect:

   ·Orders preventing the husband from removing the children from the Commonwealth of Australia.

   ·Injunctions with a view to preserving the matrimonial property and to prevent dealings with the matrimonial property until the Court has the opportunity of further considering the issues in dispute between the parties.

   ·Orders concerning parenting arrangements and the accommodation of the parties and the children pending further hearing. 

2. The application is made in the absence of the husband being served with the wife’s documents that have been filed.  It is a fundamental feature of our justice system that, other than in exceptional circumstances, orders are not made that impact upon the rights of a party without that party first being served.  In Craig v Kanssen [1943] 1 All ER 108 at 113, Lord Greene said:

   In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conceptions of the proper procedure in litigation.  Apart from proper ex parte proceedings, the idea that an order can be validly be made against a man who has had no notification of an intention to apply for it is one which has never been adopted in England.

3. Noting the reference to ‘proper ex parte proceedings’, this application is made in the context of r 5.12 of the Family Law Rules 2004 (“the Rules”) which confirms the power of the Court to make interim or procedural orders in the absence of the respondent being served with the application and supporting documents. Rule 5.12 provides:

   5.12  Application Without Notice

   An applicant seeking that an interim order or procedural order be made without notice to the respondent must

   (a)  satisfy the court about why:

   (i)  shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and

   (ii)  an order should be made without notice to the other party; and

   (b)  in an affidavit or orally, with the court's permission, make full and  frank disclosure of all the facts relevant to the application, including:

   (i)  whether there is a history or allegation of child abuse or family violence between the parties;

   (ii)  whether there has been a previous case between the parties and, if so, the nature of the case;

   (iii)  the particulars of any orders currently in force between the parties;

   (iv)  whether there has been a breach of a previous order by either party to the case;

   (v)  whether the respondent or the respondent's lawyer has been told of the intention to make the application;

   (vi)  whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;

   (vii)  the capacity of the applicant to give an undertaking as to damages;

   (viii)  the nature of the damage or harm that may result if the order is not made;

   (ix)  why the order must be urgently made; and

   (x)  the last known address or address for service of the other party.

   Note:          The applicant must file any existing family violence order when filing the application (see rule 2.05).

4. Counsel for the wife has addressed the matters set out in r 5.12 including the matters referred to in r 5.12(b). Addressing those considerations which are relevant to the application and having regard to those submissions, the material filed by the wife, as well as the wife’s oral evidence given today, I am satisfied as to the following matters:

   a)In terms of r 5.12(b)(i) there are allegations of family violence.

   b)In terms of r 5.12(b)(ii) the matter has not previously been before the Court.

   c)Rule 5.12(b)(vi) requires me to consider whether there is likely to be “any hardship, danger or prejudice to the respondent”. In that context it is noted that the orders in respect to the children are essentially to ensure that the children remain in the jurisdiction and remain in the care of the wife.  In respect of property, save insofar as to one exception that I will subsequently address, that is, relating to the occupation of the former matrimonial home, the orders sought by the wife essentially are intended to preserve the property of the parties pending the Court giving further consideration to those issues in dispute between the parties.

   d)In terms of r 5.12(b)(vii) I note that the applicant has given an undertaking as to damages.

   e)In terms of r 5.12(b)(ix) Mr Johnston has presented an outline of argument as to why orders must be made urgently. In summary, that is to ensure that the children remain in the jurisdiction and to ensure that the property of the parties remains in tact until the issue can be further considered by the Court.

   f)In terms of r 5.12(b)(x), which relates to the last known address of the husband, it is noted that the husband currently resides in the former matrimonial home at F Street, Suburb E.

5. I therefore determine that it is appropriate for this matter to be dealt with on an urgent interim basis and in the absence of the husband.

6. Addressing the orders sought including the issue of the husband’s accommodation, I note the evidence that the parties remain cohabitating under one roof. I note further that I have received oral evidence from the wife today in which she alleges a serious act of family violence and her belief that she would be at risk and that the children would be at risk if orders sought by her were not made.

7. The validity of those allegations must, of course, ultimately be determined at the final hearing; but in these interim proceedings I cannot lightly dismiss the wife’s allegation of the risk that she and the children may face if the orders are not made.

8. The wife’s evidence is that she intends to separate from the husband once these orders are made.  I note further that the affidavit of the wife sets out allegations that serious and significant threats have been made to the effect that the husband would remove the children to Country G, which is the husband’s country of origin. Again, those matters would need to be determined at final hearing. At this stage, the orders are sought to militate against that element of risk.

9. The wife also alleges that that the husband has stated an intention to remove the contents of a Commonwealth Bank safety deposit box and that he would deal with the matrimonial property. The wife asserts that the safety deposit box contains funds that the wife believes are in the approximate sum of $20 000 together with the wife’s jewellery, which she estimates to be worth between approximately $50 000 to $65 000.

10. The wife further alleges that the husband has engaged in secretive conduct in changing the wife’s wi-fi password for the internet in the former matrimonial home and that he has also redirected rental income from a joint account of the parties to an account in his own name. That account was used by the wife for household expenses and is now no longer available for her.

11. Finally, the wife alleges that the husband has complete control of the whole of the matrimonial property and has the capacity to draw down on mortgages. 

12. As noted, these allegations need to be tested at final hearing. The orders sought by the wife are essentially to avoid the risk of the matrimonial property being disbursed or dealt with pending the Court giving more detailed consideration to the matters in dispute. The orders are also intended to ensure the safety of the wife and the children and to ensure that the children remain in the jurisdiction.

13. I am satisfied that the orders sought by the wife are appropriate, save insofar as the wife has sought exclusive occupation of the property. Such an order would potentially cause significant hardship to the husband. Instead, at this stage of the proceedings, I intend to grant an injunction pursuant to s 114(1)(b) of the Family Law Act 1975 (Cth), restraining the husband from entering or remaining in the former matrimonial home for a limited period of time. The injunction will apply until the further hearing of this matter on 2 December 2016.

14. In making that injunctive order, I have determined that there is an arguable case that the wife faces what she has described as a significant safety issue for herself and the children. I have also assessed the balance of convenience in making such an order.  In assessing that balance of convenience, I note that the wife, as a result of no longer having the investment funds being deposited in a joint account, is restricted to an income of approximately $32 per week which she receives by way of family allowance. This makes the cost of rental accommodation prohibitive for her. 

15. I note also that the former matrimonial home is in close proximity to the children’s school.

16. In considering the impact on the husband in making an order under s 114(1)(b), I have received oral evidence from the wife, confirming the assertions set out in paragraphs 40 and 41 of her affidavit as to the prospect of the husband having suitable alternative accommodation arrangements at H Street, Suburb I. The wife asserts that the husband owns that property jointly with his brother and that the husband’s nephew currently resides there.

17. I have received a description of the property, which appears to be a large and comfortable property, and one which would provide a reasonable alternative accommodation for the husband. 

18. In those circumstances, I am satisfied that the balance of the convenience favours the wife remaining in the former matrimonial home with the children until the matter can be brought back before the Court. On that basis, I propose to grant the injunction which is intended – again, without determining these issues which will be considered at final hearing – to address what the wife has described as a real risk to her safety and the safety of the children.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 16 November 2016.

Associate: 

Date:  23 November 2016