Waldon and Kipley-Waldon

[2014] FamCA 278

FAMILY COURT OF AUSTRALIA

WALDON & KIPLEY-WALDON [2014] FamCA 278

FAMILY LAW – PROCEDURAL – Oral Application made by husband seeking an injunction to prevent wife from leaving the Commonwealth of Australia – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Waldon

RESPONDENT: Ms Kipley-Waldon

FILE NUMBER: HBC 246 of 2012

DATE DELIVERED: 4 April 2014

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 4 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr P Fitzgerald

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission of Tasmania

Orders

1. Leave be given for the respondent to make an oral application for an injunction restraining the applicant from leaving the Commonwealth of Australia.

2. The oral application regarding an injunction restraining the applicant from leaving the Commonwealth of Australia is dismissed pursuant to section 118(a) of the Family Law Act.

   IT IS CERTIFIED

3. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldon & Kipley-Waldon 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 HOBART

FILE NUMBER: HBC 246 of 2012

Mr Waldon

Applicant

And

Ms Kipley-Waldon

Respondent

REASONS FOR JUDGMENT

1. There is an application before me by Mr Waldon (“the husband”) for an order restraining his former wife, Ms Kipley (“the wife”), from travelling outside the Commonwealth of Australia.  In terms of that oral application, there is no opposition to it being made as an oral application.  There is however opposition to the substance of the application.  As a consequence I give leave for the oral application to be made.

2. In terms of the substantive application to enjoin the wife from leaving Australia, the background is this.  The parties married in 1971.  It was determined that on 22 January 2009, the parties separated, although the husband disputes that date of separation.  There are no children of the marriage aged less than 18 years.  On 4 April, the wife applied for a divorce.  That application was opposed, and a divorce order was made in about August 2012.

3. The parties have entered into consent orders with regard to property in early 2012, and there is an application by the husband that those consent orders be set aside.  It is in the context of that application that the husband has made three applications to restrain the wife from leaving the Commonwealth of Australia.  The first two of those applications have been determined and dismissed.  This is the third one.  The basis of this application is in many ways similar to the basis of the previous applications but for some minor changes.

4. The husband asserted that the wife can retire at any time and has a significant superannuation entitlement which is at least $400,000 and may be substantially greater than that sum.  He complains and has used strong language in relation to the wife remarrying.  There is no issue, as I understand it.  The wife has remarried.  That in itself is not indicative that the wife is likely to be leaving the Commonwealth of Australia and taking assets with her. 

5. There is no issue that the wife and her new husband own a property at Hobart, and there is no evidence before me that that property has been listed for sale or has, in fact, been sold.  There is no issue that the wife owns a property which was a bequest to her from her late mother’s estate in Suburb B, and there’s no evidence that this property is on the market or for sale.  There is no evidence that there is an endeavour to remove property from the Commonwealth of Australia, and there is significant property in the form of real estate which remains in the Commonwealth of Australia.

6. I am not satisfied that the evidence is such as would base an injunction such as that sought by the husband. At the commencement of his application, I expressed concern that the application may fall into being frivolous and vexatious within the meaning of s 118 of the Family Law Act 1975 (Cth), which would enable me to dismiss it on that basis. The husband says the application is made in good faith. It may well be from his perspective, but is being made in the absence of evidence in circumstances where he knew or ought to have known that it was doomed to failure from the beginning.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 4 April 2014.

Associate:     

Date:              4 April 2014