Xavier & Anor and Munoz & Anor

[2012] FamCA 321

FAMILY COURT OF AUSTRALIA

XAVIER AND ANOR & MUNOZ AND ANOR [2012] FamCA 321

FAMILY LAW - INJUNCTIONS – Ex parte and Interlocutory – Preservation of property

APPLICANT: Ms B Xavier and Ms M Xavier

RESPONDENT: Mr Munoz and Ms Munoz

FILE NUMBER: SYC 5198 of 2010

DATE DELIVERED: 27 April 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 27 April 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Atunes Lawyers

SOLICITOR FOR THE RESPONDENT: Without Notice

Orders

1. That until further Order the Second Respondent, Ms Munoz be and is restrained by herself, her servants and/or agents from withdrawing, transferring, closing, dissipating and/or alienating any funds held in her name or any variation of her name including but not limited to:

   Version 1 of spelling of Ms Munoz’s name

   Version 2 of spelling of Ms Munoz’s name

   Version 3 of spelling of Ms Munoz’s name

   Version 4 of spelling of Ms Munoz’s name

   H Pty Limited

   H Trust

   Version 1 of spelling of Ms B Xavier’s name

   Version 2 of spelling of Ms B Xavier’s name

   Version 3 of spelling of Ms B Xavier’s name

   Or any variation of those names, or from accessing by email address … and … with or without the password “[…]” any accounts held in the Commonwealth Bank or Macquarie Bank Limited.

IT IS DIRECTED

1. That this matter be returnable before the Honourable Justice Rees at 10 am on Thursday 3 May 2012.

2. That a copy of the application, the affidavits in support and these orders be served upon the 1^st and 2^nd respondents by close of business on Monday 30 April 2012.

3. That leave be given to the solicitor for the 1^st and 2^nd applicants to serve copies of this order upon the Commonwealth Bank and Macquarie Bank Limited by email.

4. That personal service of the orders upon the Commonwealth Bank and Macquarie Bank Limited be effected by close of business on Monday 30 April 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xavier and Anor & Munoz and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5198 of 2010

Ms B Xavier and Ms M Xavier

Applicant

And

Mr Munoz and Ms Munoz

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application brought by Ms B Xavier, who is the first applicant, and Ms M Xavier, who is the second applicant.  The first applicant holds a power of attorney from the second applicant who is the mother of the first applicant.  The first applicant offers in her affidavit an undertaking as to damages in respect of the orders which she seeks from the Court. 

2. The matter before the Court is an application for settlement of property.  It is the wife’s case that the husband has dissipated or hidden assets of the marriage, being the proceeds of sale of various properties, moneys from their self-managed superannuation funds and moneys earned by businesses operated by the wife and by the husband. 

3. The second respondent to the application is the daughter of the parties, Ms Munoz.  The matter proceeds without notice to either the first respondent, who is the husband, or the second respondent, Ms Munoz, for reasons which are set out below. 

4. The second respondent, Ms Munoz, is 23 years old and has been a student for most of her adult life.  She has from time to time had part time work.  On 12 February 2012, the second respondent Ms Munoz left an Ipad, data sticks and notebooks in the motor vehicle belonging to the first applicant.  The information contained from those sources indicated that the second respondent had bank accounts with the Commonwealth Bank with a net balance of $5,271,782.55.  Also included in the documents was an unsigned document which appears to be a draft agreement between the first applicant and the second respondent that states inter alia that the second respondent will:

   “Personally guarantee the returns of any moneys unaccounted for from the original $580,000 invested in my grandmother’s name.” 

5. The document further states that the second respondent will personally guarantee the return of $200,000 that was electronically transferred to the United Kingdom by a financial planner on her instructions and that the second respondent personally guarantees the return of $250,000 that was invested in the market on the instructions of the second respondent’s mother, who is the applicant. 

6. The applicant asserts that the funds which are held by the second respondent could only have come from the sale of matrimonial assets or from the operation of matrimonial businesses or from moneys belonging to the second applicant. 

7. In addition, the second respondent operates an account at the Macquarie Bank in the name of the H Trust.  Before me are tendered bank statements indicating that as at December 2011 the balance of the accounts in the name of the H Trust and H Pty Ltd were $256,180.94 and $29,100.99 respectively. 

8. The applicant in her affidavit sworn 27 April 2012 deposes to conversations with the second respondent where the second respondent has told her that she wishes to go and live and work in Europe or maybe the United States of America.  Recently, the second respondent has told the applicant that if the second respondent leaves Australia the second applicant, who is the grandmother of the second respondent, will never get her money back. 

9. The applicant deposes to another conversation with the second respondent where the second respondent is asserted to have said that she has booked a flight for 2 May to go overseas for an extended period and intends to study at a specified European university.  The applicant expresses a fear that whether the second respondent remains in Australia or goes overseas, she is in control of a substantial amount of matrimonial property which she is in a position to transfer either out of the jurisdiction or to an unknown location at any time. 

10. I am satisfied that it is appropriate to make orders on an ex parte basis to protect those funds. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 27 April 2012.

Associate: 

Date:  30 April 2012