Bonner and Bonner and Ors

[2011] FamCA 682

FAMILY COURT OF AUSTRALIA

BONNER & BONNER AND ORS [2011] FamCA 682

FAMILY LAW – PRACTICE AND PROCEDURE – Party’s applications struck out

Family Law Act 1975 (Cth)

APPLICANT: Ms Bonner

RESPONDENT: Mr Bonner

2^ND RESPONDENT: Mr Voichin

3^RD RESPONDENT: Mr Green

FILE NUMBER: MLC 1166 of 2010

DATE DELIVERED: 11 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kenda

SOLICITOR FOR THE APPLICANT: Lewis Holdway Lawyers

COUNSEL FOR THE RESPONDENT: Mr O’Shannessy

3RD RESPONDENT: In Person

Orders

1. That the application of Mr Green filed 14 January 2011 and the application in a case filed 7 July 2011 are both struck out.

2. That the reasons for the order set out in paragraph 1 herein shall be transcribed and be made available to the parties.

3. That all applications for final orders be adjourned for hearing as the third case in the list commencing at 10.00am on 2 November 2011 before a judge to be advised but not before 7 November 2011 as a three day matter.

4. That the matter be listed for mention before Justice Cronin at 9.00am on 21 October 2011 by telephone.

5. That by 4 pm on 19 August 2011 the applicant file and serve upon all other parties:

   (a)    an amended application setting out with precision the orders to be sought;

   (b)    the affidavits of evidence in chief of all witnesses relied upon; and

   (c)    a financial statement that complies with chapter 13 of the Family Law Rules.

6. That the applicant pay all setting down and trial fees by 4 pm on 19 August 2011.

7. That by 4 pm on 23 September 2011 the respondent file and serve upon all other parties:

   (a)    an amended response setting out with precision what orders are being sought;

   (b)    the affidavits of evidence in chief of all witnesses relied upon; and

   (c)    a financial statement that complies with chapter 13 of the Family Law Rules.

8. That by 4 pm on 14 October 2011 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

9. That no party file any further material other than as provided by these orders without leave of the Court.

10. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

11. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

12. That the practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4 pm on 28 October 2011 the following:

    (a)    a concise set of orders to be sought if different from those already filed;

    (b)    a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)    a list of assets and liabilities; and

    (d)    a bullet-point summary of argument in relation to the issues in dispute.

BY CONSENT IT IS ORDERED:

1. That the real property situated at B Street, Town C, 3… in the State of Victoria, more particularly described in Certificate of Title Volume … Folio … (“Town C”) be listed for sale by public auction within three (3) months of the due date (“the sale”) upon such terms and conditions (including reserve price) as are agreed between the Official Trustee in Bankruptcy of  Mr Bonner and the applicant, and in default of agreement as to any matter then on terms, conditions, reserve price and such real estate agent as shall be nominated by the President (for the time being) of the REIV and the proceeds derived therefrom be applied as follows:

   (a)    firstly to pay all costs, commissions and expenses of the sale;

   (b)   secondly to withdraw the caveat over the property of Mr Bonner; and

   (c)    thirdly the balance be placed into a controlled monies account of the Applicant’s Lawyers pending final settlement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bonner & Bonner and Ors 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 1166 of 2010

Ms Bonner

Applicant

And

Mr Green

Respondent

REASONS FOR JUDGMENT

1. This is a property application between Ms Bonner and Mr Bonner.  Mr Bonner is a bankrupt, and his interests today appear via the bankruptcy trustee for whom Mr O’Shannessy of counsel appears.  In January, Mr Green appears to have been made a party to the proceedings, and I note that the Registrar directed that a proper claim by way of a formal response be filed, and that did not occur.  

2. On 9 June 2011, I made an order that Mr Green, as a respondent to the proceedings, file an amended response with precision, the orders that he was seeking by 7 July.  The document he filed on 7 July he concedes was prepared with the assistance of someone in the registry.  It is a handwritten document save for the second page, which sets out what is said to be orders sought.  These are not orders that the Court could make.  They are in fact various claims which do not make a lot of sense.  There is also attached to the document a letter dated 27 June addressed to a Natalie Fielding, whom I understand is the solicitor for the wife. 

3. I’m not at all sure what Mr Green’s claim is, and I have made a number of attempts today to get him to particularise exactly how he gets to make the claim.  The best I have been able to work out is that he says that he and the husband had some agreement where they worked growing fruit on this property for the benefit of their children, although it’s quite conceded by Mr Green that the property was owned by the husband and wife. 

4. There is no claim before the Court in any form that would enable the Court to use its powers under Part VIII or, for that matter, under Part VIIIAA of the Family Law Act 1975, and on that basis, I agree with the statement by counsel for the wife that the application is incompetent.  That does not mean that Mr Green could not become an applicant again if he filed proper material.  At this stage, I am not going to waste the Court’s time or the parties’ costs by enabling Mr Green to wander through the system and file documents of that nature.  Accordingly, his application of 14 January and the application of 7 July are both struck out.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 July 2011.

Associate: 

Date:  2 August 2011