Vestri & Vestri - [2024] FedCFamC1F 146

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vestri & Vestri [2024] FedCFamC1F 146

File number(s): CAC 405 of 2022

Judgment of: GILL J

Date of judgment: 8 March 2024

Catchwords: FAMILY LAW - INJUNCTIONS - Ex parte injunction

Legislation: Family Law Act 1975 (Cth) - ss 90AF & 114(1)(e)

Cases cited: M & DB [2006] FamCA 1380

Division: Division 1 First Instance

Number of paragraphs: 13

Date of hearing: 8 March 2024

Place: Canberra

Solicitor for the Applicant: Ex parte application (did not participate)

Solicitor for the Respondent: Ms Neilan, Neilan Stramandinoli Family Law
ORDERS

CAC 405 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VESTRI

Applicant

AND:
MR VESTRI

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

8 MARCH 2024

THE COURT ORDERS:
1.The Wife’s Application in Proceeding filed 7 March 2024 be heard on an ex parte basis.
2.Pursuant to s 114(1)(e) of the Family Law Act 1975 (Cth) (“the Act”), the Respondent Husband Mr Vestri, born 1978, be restrained, by force of injunction from disposing of, transferring, encumbering or otherwise dealing with or permitting B Pty Ltd to so deal with the property listed in Order 3 pending further order of the Court or written agreement of the Wife except for reasonable operating or living costs.
3.That for the purpose of Order 2, “the property” including the following:
(a)Any funds held in accounts held with the Australian and New Zealand Banking Group Limited limited to account numbers …78, …28 and …13.

4.That pursuant to sections 90AE(2)(a), 90AF(2)(a) of the Act, the Court directs the Australian and New Zealand Banking Group Limited to deposit 60% of funds held in account numbers …78, …28 and …13 into the trust account of the Applicant Wife’s lawyers, Neilan Stramandinoli Family Law.
5.For the purposes of Order 4 above, the trust account details are as follows:
Neilan Stramandinoli Family Law Law Practice Trust Account
Account Number: …86
BSB: …

6.The monies so deposited in Neilan Stramandinoli Family Law trust account shall not be drawn against without written agreement from the parties or an order of the Court.
7.The wife is to cause to be served forthwith upon the husband and Australian and New Zealand Banking Group Limited, a copy of her application, supporting affidavit, Exhibit M1 and these Orders and file evidence establishing that she has done so.
8.The proceedings are adjourned for hearing of the wife’s application to 9.00am on 13 March 2024.
9.On the next occasion, the wife is permitted to appear by electronic means, provided her legal representative appears in person.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vestri & Vestri

Details

AGLC: Vestri & Vestri [2024] FedCFamC1F 146
Case: [2024] FedCFamC1F 146
Decision Date: 8 March 2024

CaseChat Overview and Summary

In the matter of Vestri & Vestri, the court was asked to consider an ex parte application by Ms Vestri for an injunction preventing her husband, Mr Vestri, from disposing of or otherwise dealing with certain property. The Federal Circuit and Family Court of Australia heard the matter and granted the injunction, directing Mr Vestri to refrain from disposing of, transferring, encumbering, or dealing with certain property, including funds held in specified bank accounts. The court also directed the Australian and New Zealand Banking Group Limited to deposit 60% of the funds held in these accounts into the trust account of the applicant's lawyers.

The primary legal issue before the court was whether an ex parte injunction should be granted to prevent Mr Vestri from dealing with certain property. The court had to consider the balance of convenience and whether there was a serious question to be tried regarding the applicant's entitlement to the property. The court found that the applicant had made out a strong case for an injunction, given the potential for dissipation of assets and the need to preserve the status quo pending the hearing of the substantive application. The court also noted that the applicant had provided evidence of an intention on the part of Mr Vestri to deal with the property, which supported the grant of an injunction. The court was satisfied that the applicant had made out a strong case for the injunction and that the balance of convenience favoured the grant of the injunction. The court was also satisfied that there was a serious question to be tried regarding the applicant's entitlement to the property. The court therefore granted the injunction, directing Mr Vestri to refrain from dealing with the specified property and directing the bank to deposit a portion of the funds held in the specified accounts into the trust account of the applicant's lawyers. The proceedings were adjourned for the hearing of the substantive application.

Orders

Orders of the court

CAC 405 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS VESTRI

Applicant

AND:

MR VESTRI

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

8 MARCH 2024

THE COURT ORDERS:

1. The Wife’s Application in Proceeding filed 7 March 2024 be heard on an ex parte basis.

2. Pursuant to s 114(1)(e) of the Family Law Act 1975 (Cth) (“the Act”), the Respondent Husband Mr Vestri, born 1978, be restrained, by force of injunction from disposing of, transferring, encumbering or otherwise dealing with or permitting B Pty Ltd to so deal with the property listed in Order 3 pending further order of the Court or written agreement of the Wife except for reasonable operating or living costs.

3. That for the purpose of Order 2, “the property” including the following:

(a) Any funds held in accounts held with the Australian and New Zealand Banking Group Limited limited to account numbers …78, …28 and …13.

4. That pursuant to sections 90AE(2)(a), 90AF(2)(a) of the Act, the Court directs the Australian and New Zealand Banking Group Limited to deposit 60% of funds held in account numbers …78, …28 and …13 into the trust account of the Applicant Wife’s lawyers, Neilan Stramandinoli Family Law.

5. For the purposes of Order 4 above, the trust account details are as follows:

Neilan Stramandinoli Family Law Law Practice Trust Account

Account Number: …86

BSB: …

6. The monies so deposited in Neilan Stramandinoli Family Law trust account shall not be drawn against without written agreement from the parties or an order of the Court.

7. The wife is to cause to be served forthwith upon the husband and Australian and New Zealand Banking Group Limited, a copy of her application, supporting affidavit, Exhibit M1 and these Orders and file evidence establishing that she has done so.

8. The proceedings are adjourned for hearing of the wife’s application to 9.00am on 13 March 2024.

9. On the next occasion, the wife is permitted to appear by electronic means, provided her legal representative appears in person.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	CAC 405 of 2022
Judgment of:	GILL J
Date of judgment:	8 March 2024
Catchwords:	FAMILY LAW - INJUNCTIONS - Ex parte injunction
Legislation:	Family Law Act 1975 (Cth) - ss 90AF & 114(1)(e)
Cases cited:	M & DB [2006] FamCA 1380
Division:	Division 1 First Instance
Number of paragraphs:	13
Date of hearing:	8 March 2024
Place:	Canberra
Solicitor for the Applicant:	Ex parte application (did not participate)
Solicitor for the Respondent:	Ms Neilan, Neilan Stramandinoli Family Law

CAC 405 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS VESTRI Applicant
AND:	MR VESTRI Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	8 MARCH 2024