Yashal and Yashal

[2011] FamCA 1004

FAMILY COURT OF AUSTRALIA

YASHAL & YASHAL [2011] FamCA 1004

FAMILY LAW – INJUNCTIONS - Interlocutory injunction

Family Law Act 1975 (Cth)

APPLICANT: Ms Yashal

RESPONDENT: Mr Yashal

FILE NUMBER: MLC 10458 of 2011

DATE DELIVERED: 1 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms King-Siem

SOLICITOR FOR THE APPLICANT: Sabelberg Morcos Lawyers

THE RESPONDENT: No appearance

Orders

That upon the wife giving an undertaking through her counsel that she will pay any damages ordered by the Court arising out of the fact that these orders are made in the absence of information from the husband
IT IS ORDERED

1. That the wife have leave to proceed without notification to the husband.

2. That the applications are adjourned to 10.00am on 20 December 2011 in the Judicial Duty List.

3. That the husband file and serve a response and any affidavit in reply to the affidavit of the material by 4.00pm on 19 December 2011.

4. That until 4.00pm on 20 December 2011, the husband is restrained by injunction from:

   (a)    dealing with or disposing of any of the sums of money in the following accounts with the ANZ Bank: 

   Account …22 in the name of the husband;

   Account …47 BSB … in the name of E Pty Ltd;

   Account …63 BSB … in the name of E Pty Ltd;

   Account …04 BSB … in the name of E Pty Ltd;

   (b)    with the Commonwealth Bank:

   Account …61 BSB … in the name of E Pty Ltd;

   Gold Awards Card …03

5. That the wife be at liberty to serve the husband by email to the address shown in the email sent by the husband to the wife on 30 November 2011.

6. That the wife as soon as practicable serve upon the husband a copy of this order together with all documents filed thus far.

7. That the wife serve upon the husband a copy of the reasons for judgment delivered this day upon them being provided to the wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10458  of 2011

Ms Yashal

Applicant

And

Mr Yashal

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed on 22 November 2011 and listed on 29 November in the judicial duty list.  I was not satisfied on that occasion to permit the applicant to proceed on an ex-parte basis and I adjourned the matter to today to enable the husband to at least be notified of the existence of the application, bearing in mind the nature of the orders sought. 

2. This is a long marriage involving parties who are professionally qualified, running their own business.  The husband is currently in Egypt and there is a strong suggestion that his pretext in going to Egypt for a holiday was not correct.  The wife has been left not knowing exactly what the husband is doing with the financial position and is only aware of the nature of the relevant bank accounts because of the fact that those banks have been sending documents to the home address.

3. The evidence in the affidavit shows that the wife was shocked when she found out some of the accounts and, more importantly, some of the movements in those accounts.  The wife suggests that the husband is negotiating with his relatives to assist him to get money out of the country.  The wife is prepared to give an undertaking as to damages in the event that what she has said is not correct and causes some problem either for the relevant corporate entity or for the husband.

4. In the intervening period between the judicial duty list on the 29^th and today a further attempt has been made by email to send the husband the documents but the email bounced back, presumably because of its size however the address to which the documents were served seems to be correct because the husband has sent an email to the wife on the 30^th of November which clearly indicates that he is at that location.  He had not been aware of the existence of the Court process at that stage, as is evident from his email.

5. I have an affidavit of service showing that the documents were sent again this morning, very early, so the husband may only now be aware that these proceedings are in existence.  The email the husband sent yesterday is a request to the wife to send company cheques so that he in turn can send her the money that she wanted.  The email is written in the usual modern computer language and not entirely clear but I think it is sufficient to enable me to say that the picture is consistent with the expressed concern of the wife in her affidavit.

6. The power to make an injunction lies in section 114 of the Family Law Act and that is a provision that enables the Court to make orders for the protection of the property of the parties.  The Act says that a Court should only make such an order if it considers it proper to do so.  What I am being asked to do here is to put in place a holding order so that all of the relevant financial information that the wife seems bereft of can be provided to her.

7. I think 21 days or thereabouts is enough time for the husband to at least put his side of the story and for that reason I propose to adjourn the matter to 20 December at 10 am and give him an opportunity to file an affidavit in reply.  The injunctions I propose are therefore a holding pattern and as the husband seems wanting access to the accounts he may need to negotiate with the wife otherwise he can tell the Court exactly what his needs are on the 20^th of December. 

8. This is an order which, in my view, is proper in the circumstances.  In the matter of Yashal therefore I make the following orders.

   ORDERS DELIVERED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 December 2011.

Associate: 

Date:  6 January 2012