YASHAL & YASHAL (NO 2)

[2011] FamCA 1038

FAMILY COURT OF AUSTRALIA

YASHAL & YASHAL (NO 2) [2011] FamCA 1038

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to seek issue of subpoenae and list as an undefended proceeding

Family Law Act 1975 (Cth)

APPLICANT: Ms Yashal

RESPONDENT: Mr Yashal

FILE NUMBER: MLC 10458 of 2011

DATE DELIVERED: 20 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms King-Siem

SOLICITOR FOR THE APPLICANT: Sabelberg Morcos Lawyers

THE RESPONDENT: No appearance

Orders

1. That paragraph 4 of the orders made on 1 December 2011 is extended until further order.

2. That the wife have leave to approach the Registrar to seek:

   (a)    the issue of subpoenae; and

   (b)    to list the application filed 22 November 2011 as an undefended proceeding, the husband not having complied with paragraph 3 of the orders made on 1 December 2011.

3. That all interim applications are otherwise dismissed.

4. The undertaking of the wife given on 1 December 2011 through her counsel is discharged.

5. That this order and in due course the reasons for judgment this day, be served by electronic means upon the husband at … @ … .com

6. That the wife have leave to serve a copy of these orders upon the ANZ Bank and the Commonwealth Bank relating to the accounts referred to in paragraph 4 of the orders made on 1 December 2011.

7. That the wife’s costs of this day are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yahal & Yashal (No 2) 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. On 22 November 2011 an application was filed by the wife, seeking interim orders which amounted to not only a Mareva injunction but also that the husband comply with various disclosure obligations that are clearly set out in the rules of this court.  In addition, the wife sought a final order that matrimonial assets be divided on a percentage basis.  It is quite clear that that substantive order needs to be rectified and, no doubt, will be done so prior to the matter being relisted. 

2. On 22 November I declined to make the orders on an ex parte basis, having regard to the vagueness of the allegations set out in the affidavit that was filed with the application and the fact that I took the view that the husband could be found.  There did not seem to me to be any real prejudice to the wife in serving the husband.  I adjourned the proceeding until 1 December and made orders for service.  On 1 December the husband did not appear and was not represented.  I gave the wife leave to proceed without notification to the husband and made orders that the proceedings be adjourned until today in the judicial duty list. 

3. I further ordered that the husband file and serve responding material, including an affidavit, by 4 o’clock on 19 December.  According to the wife, nothing has been filed.  Having regard to the material in the affidavit, albeit it was somewhat vague, but having regard also to the fact that the husband had been served, I made various injunctions restraining the husband from accessing bank accounts.  Some of those bank accounts related to corporate entities in which the parties have an interest.  I made those orders upon the undertaking of the wife through counsel relating to damages in the usual form. 

4. Today, again, there has been no appearance by or on behalf of the husband, and I am satisfied by an affidavit of service that the documents, save the reasons for judgment on the last occasion, were served upon the husband by electronic means at an email address.  That email address, as I pointed out on the last occasion, was the address that he was using to correspond, including with the wife.  I have no reason to doubt that if further documents are to be served upon the husband he can access them through that particular address.  There being no further appearance of the husband, the wife’s evidence is therefore undisputed. 

5. It seems to me that I should make the injunctive orders which are of a protective nature.  The question remains as to what happens to the case now.  Normally, a party not having participated by complying with court orders, would entitle the other party to proceed in their absence on an undefended basis.  Counsel for the wife, however, concedes that the wife is not in a position to do that because she does not know the financial position in detail of the husband.  Absent the husband providing proper disclosure, the only avenue open to the wife is to seek that same information by the route of subpoenae. 

6. I propose to give the wife leave to start that process.  And upon being satisfied that she has the necessary information to proceed on an undefended basis, she can approach the registrar and seek leave to have the matter relisted as an undefended hearing.  Be that as it may, the husband still has an opportunity to get his house in order and, subject to explanations as to why he has not participated and possibly pay some costs, he may be able to participate in the ultimate determination of the division of assets. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 December 2011

Associate: 

Date:  11 January 2012