Wilson and Wilson

[2009] FamCA 535

FAMILY COURT OF AUSTRALIA

WILSON & WILSON [2009] FamCA 535

FAMILY LAW – ORDERS – Ex parte – Restraint on dealing with property

APPLICANT: Ms Wilson

RESPONDENT: Mr Wilson

FILE NUMBER: MLC 5069 of 2009

DATE DELIVERED: 11 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 11 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Yeoh

SOLICITOR FOR THE APPLICANT: Women’s Legal Service of Victoria

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the wife’s application filed 11 June 2009 shall be adjourned to 10.00am before me on 19 June 2009.

2. That UNTIL FURTHER ORDER the husband is hereby restrained by himself, his servants or agents from disposing of or in any way dealing with or attempting to dispose of or in any way deal with the proceeds of sale of the property at R in the State of Victoria being the whole of the land in Certificate of Title Volume … Folio …, or any monies standing to his credit in any bank account or financial institution, SAVE THAT he may use or withdraw a sum up to $1000 for personal living expenses.

3. That UNTIL FURTHER ORDER the husband is hereby restrained by himself, his servants or agents from selling, alienating, encumbering or dealing with or attempting to sell, alienate, encumber or deal with any property in his name, whether solely or jointly with another person, without the wife’s prior written consent or an order of the court.

4. That UNTIL FURTHER ORDER the husband MR WILSON born … November 1977 shall be restrained from leaving the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the husband on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the name of the husband on the Watch List.

5. That the wife’s solicitors shall forthwith serve a sealed copy of these orders on the Australian Federal Police and the Marshal of the Family Court of Australia.

6. That the wife’s solicitor shall forthwith arrange service on the husband of:

   (a)A sealed copy of these orders;

   (b)The wife’s application filed 11 June 2009;

   (c)The wife’s affidavit filed 11 June 2009; and

   (d)The wife’s financial statement filed 11 June 2009;

   by

   (i)     Personal service upon him; or,

   (ii)    If unable to achieve personal service within a reasonable time, by

   ·Posting sealed copies of the documents to the husband at R, Victoria by registered post;

   ·Sending an SMS text message to the husband’s last known mobile telephone number notifying him of the orders and the hearing date; and

   ·Posting sealed copies of the documents to the solicitor Mr Ravi James by registered post.

7. That the husband shall be at liberty to apply to the court upon short written notice to the wife.

8. That a transcript of my reasons given this day shall be retained on the court file.

IT IS NOTED

1. That the husband is advised to urgently obtain legal advice and to appear at court on 19 June 2009 so the court can hear his version of events.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 5069 of 2009

MS WILSON

Applicant

And

MR WILSON

Respondent

REASONS FOR JUDGMENT

1. I have read the wife's application filed today, her affidavit in support and her financial statement also filed today.  Generally a court will not  make an order without hearing from the parties to the proceedings.  Procedural fairness and natural justice dictate that each side have the opportunity to tell the court their version of events.  Frequently they are very different, and it is always important for the court to have the opportunity to hear from both parties.

2. Occasionally, and this is such an occasion, it is appropriate to make an order before one party has been informed of the proceedings.  I say it is appropriate in this case because based on the sworn material of the wife, there is a genuine prima facie reason for concern.  She has sworn that a property purchased in the course of the marriage, but registered in the husband's sole name, has been transferred out of his name in the early months since separation, without any notice to her.

3. According to the material, there is prima facie evidence that he received $255,000 by way of consideration.  Her account is that the transferees are friends of the husband's, and she has sworn that he recently threatened that if she took any court proceedings, he would simply leave the country, I suppose the inference being that she would not be able to pursue him or any financial matters or matrimonial moneys.

4. It is very important that there is the opportunity for full and frank disclosure about financial matters so that just and equitable orders can ultimately be made as between the parties.

5. I propose acceding to the wife's application for certain ex parte orders, provided that they are on the shortest possible terms, there is an undertaking as to damages which will need to be explained to her, and that - because there is authority that I must do this - there is some concession made for the husband to be able to withdraw some funds for basic living expenses.

6. I will make a clear notation to the orders that the court is well aware that at this point, he has not had the opportunity to be heard.  It is important that his side of the story be put to the court. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  11 June 2009