Withers and Russell and Anor

[2015] FamCA 80

FAMILY COURT OF AUSTRALIA

WITHERS & RUSSELL AND ANOR [2015] FamCA 80

FAMILY LAW –  application heard ex parte – parties restrained from dealing with funds in designated bank accounts.

APPLICANT: Mr Withers

RESPONDENT: Ms Russell

2^nd RESPONDENT: Ms B Russell

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 18 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: REES J

HEARING DATE: 18 February 2015

REPRESENTATION

MATTER LISTED IN CHAMBERS NO APPEARANCES

Orders

IT IS ORDERED

1. That this application be heard ex parte.

2. That pending further order Ms Russell and Ms B Russell are restrained from dealing with any funds in accounts numbered … and … with the National Australia Bank.

3. That a copy of this order may be served upon the National Australia Bank by electronic means.

4. That service of these Reasons for Judgment, the orders and the Application in a Case, Financial Statement and Affidavit is to be effected upon the wife and the second respondent by electronic means not later than 6pm on Wednesday 18 February 2015.

5. That the matter is listed for mention only at 10am before the Honourable Justice Rees.

6. That the parties may appear by telephone by arrangements made with the Associate to the Honourable Justice Rees.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Withers & Russell and Anor 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: CAC 223  of 2015

Mr Withers

Applicant

And

Ms Russell

Respondent

And

Ms B Russell

2^nd Respondent

REASONS FOR JUDGMENT

1. Mr Withers (“the husband”) and Ms Russell (“the wife”) married in 2007. There are two children of the marriage now aged four years and three years. The husband resides in Australia and the wife currently resides in the Country C. There are proceedings on foot between the parties relating to the husband’s claim for the return of the children to Australia and defended proceedings for divorce.

2. By an Application filed on 18 February 2015 the husband now seeks orders restraining the wife and her mother, Ms B Russell (“the second respondent”) from dealing with money held by an entity known as the D Trust.

3. The D Trust is an entity controlled by the wife and or the second respondent. The husband is not a signatory to any bank account in the name of the D Trust.

4. The husband asks the Court, initially, to deal with the matter on an ex parte basis because he fears that, if the wife and the second respondent have notice of the application, then the money will be forwarded to the wife in the Country C and thus be beyond the reach of the Court.

5. Documents annexed to the affidavit of the husband satisfy the Court that on 24 September 2014 the second respondent conducted the settlement of a sale of a block of land at Suburb E and $97,731.92 was deposited into the joint account of the husband and the wife as a consequence of the sale.

6. On 22 September 2014, the second respondent on behalf of the husband and the wife settled the sale of a property at Suburb F and $88,873.96 was deposited into the joint account of the husband and the wife.

7. On 12 September 2014 a sum of $97,731 was transferred to an account which appears, on the face of the bank statement, to be the account of the D Trust.

8. On 23 September 2014, a further amount of $2,033.25 was transferred from the joint account to the D Trust.

9. On 26 September 2014, the amount of $88,873.96 was transferred from the joint account to the D Trust.

10. On 29 September 2014, a further sum of $3,451.26 was transferred from the joint account to the D Trust.

11. The husband is not a signatory to the accounts of the D Trust but he asserts that the second respondent is a signatory to those accounts.

12. I am satisfied, on a prima face basis that the money from the sale of the two jointly owned properties has been transferred into an account solely in the control of the wife or the second respondent and that that it is appropriate to make an order restraining the wife and the second respondent from having access to those funds, thus preserving the funds.

13. Because no undertaking as to damages is offered by the husband it is appropriate for the order to be made for the shortest possible time and therefore I propose to list the matter before me at 10am on Friday 20 February 2015 when the parties can be heard in relation to whether or not the orders should be continued.

14. If, on 20 February 2015 the husband contends that the restraining orders should be continued, then he will be required to give an undertaking as to damages.

15. The bank statements attached to the husband’s affidavit demonstrate that the monies which were transferred from the joint accounts were transferred into two accounts at the National Bank of Australia in the name of the wife, one ending with the numbers … and one ending with the numbers ….

16. I am satisfied that it is appropriate to restrain the wife and the second respondent from further dealing with any monies in those accounts for the period between the making of these orders and 20 February 2015.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 February 2015.

Associate:

Date:  18/2/2015