Bourke and Bourke

[2008] FamCA 153

FAMILY COURT OF AUSTRALIA

BOURKE & BOURKE [2008] FamCA 153

FAMILY LAW – PROPERTY – Sale of property – Interim orders - Injunctions

Family Law Act 1975 (Cth)

APPLICANT: Mrs Bourke

RESPONDENT: Mr Bourke

FILE NUMBER: MLF 2814 of 2008

DATE DELIVERED: 5 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 5 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR O'CONNOR

SOLICITOR FOR THE APPLICANT: CALLAHANS LAWYERS

COUNSEL FOR THE RESPONDENT: MR THEXTON

SOLICITOR FOR THE RESPONDENT: THEXTON LAWYERS

ORDERS

IT IS ORDERED:

1. THAT the further hearing of the extant amended application filed 26 February 2008 and the earlier consolidated applications filed 28 September 2006 and 18 January 2008 be adjourned to the interim defended list on Tuesday 15 April 2008 at 10.00 a.m.

2. THAT on or before Thursday 27 March 2008 the husband make, file and serve:

   (a)a response to all outstanding applications;

   (b)an affidavit of evidence in chief; and

   (c)an updated Form 13 financial statement.

3. THAT on or before Thursday 10 April 2008 the wife make, file and serve:

   (a)an updated affidavit of evidence in chief;

   (b)an updated Form 13 financial statement; and

   (c)any further amended application.

IT IS FURTHER ORDERED BY CONSENT

1. THAT the husband and wife forthwith sign all documents and do all acts and things required to jointly offer for sale the property at D and to effect such a sale the parties and each of their solicitors are to confer and appoint an independent solicitor to act on the conveyance and a firm of qualified real estate agents to sell the property at a reserve price as agreed or in dispute to be determined by an appointed single expert or the President of the Real Estate Institute of Victoria.

2. THAT the D property is to be offered for sale with vacant possession and on an unconditional cash contract and the proceeds of sale are then to be applied:

   (a)in meeting the reasonable costs, expenses and commission of sale;

   (b)in discharging any mortgage encumbrance secured on title;

   (c)in paying any arrears of rates, taxes or other outgoings properly payable in respect of the property;

   (d)the balance then to be divided as the parties may agree or failing agreement be held in an interest bearing account pending further agreement of the parties or order of the court.

3. THAT liberty is reserved to apply specifically as to any issue of or incidental to the sale of the D property or the application of the proceeds of sale therefrom.

4. THAT as and from this day the wife have the sole use and occupation of the D property, she to be responsible for the co-ordination, presentation and preparation of the property for sale.

IT IS FURTHER ORDERED:

1. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

2. THAT any subpoenas to be issued by or on behalf of the parties are to be made returnable in the subpoenas clerks list on Tuesday 25 March 2008 or, if required, Tuesday 1 April 2008.

3. THAT to facilitate full and proper disclosure each party is to make available to the other, through their solicitors all relevant financial and other records and documents of and incidental to their financial circumstances or property acquisitions or commercial matters that are identified by the wife in her affidavit filed 26 February 2008.

4. THAT the husband pay to the wife costs of and incidental to the hearing today fixed in the sum of $1,000 and those monies be paid to the wife upon the settlement of the sale of the D property and prior to any other monies being invested in any interest bearing account or otherwise distributed between the parties by agreement.

5. THAT specifically the husband is to make full and complete disclosure and discovery of the documents identified in paragraph 3 of the orders of Dessau J pronounced 14 June 2007.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife and solicitor appearing as Counsel for the husband.

IT IS NOTED

A.THAT the husband’s solicitor has produced a bundle of documents by way of discovery today and counsel for the wife is to have possession of those documents and deliver them to his solicitor for the processes of discovery, make such copies as are required thereof and otherwise keep safe all documents pending further hearing of this matter.

IT IS NOTED that publication of this judgment under the pseudonym Bourke and Bourke is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2814 of 2008

MRS BOURKE

Applicant

And

MR BOURKE

Respondent

REASONS FOR JUDGMENT

1. In the matter of Bourke, MLF 2814 of 2008, Mr O'Connor of counsel appears for the applicant wife, Mr Thexton, solicitor, appears for the husband. 

2. This matter does have a history before this court of many procedural and other orders being made.  I accept Mr O'Connor's submission that on many occasions the wife has appeared or been represented and there has been no appearance by or on behalf of the husband.  I am advised, but I make no particular finding, on the alleged difficulties of service of the husband with various applications.

3. Clearly there has been a very real issue of full and frank disclosure of documents and information, although there is today on the bar table, produced by the husband's solicitor, a large bundle of documents which purportedly are relevant but which are yet to be read and examined on behalf of the wife.

4. The primary issues before the court are as to property and financial settlement and these are encapsulated within a recently‑filed amended application, dated 26 February 2008 and filed by the wife.  It is that document which was made returnable today, both on its filing and pursuant to the orders of Carter J of 18 February 2008. 

5. The orders sought by the wife are effectively to provide to her sole use and occupation of the property at M and also of the property at D.  Otherwise, there are extensive orders sought as to the payment of mortgage and other outgoings, restraining orders and injunction orders, both as to property and as to personal protection. 

6. In support of that application the wife filed an affidavit of 26 February 2008.  That affidavit is substantially relevant to any ongoing property or interim property or partial property application.  The affidavit sets out grounds upon which the injunctions are sought and further, highlights why it is said that the wife should have sole use of the M property. 

7. I have read the affidavit, but I do not purport to set out the factual history therein contained, particularly as it is now 3.45 p.m. on a busy duty list day.  The facts of and related to the marriage are highlighted in that affidavit.  In simplistic terms, on the application for use and occupation, I understand that the final separation between this married couple occurred in March of 2006. 

8. It would seem on that occasion the husband was first removed from the home but, when a then current intervention order lapsed, he returned to the home and the wife was forcibly excluded from the home.  There were thereafter various criminal proceedings in State Courts, but ultimately the wife moved to her parents' place and then to rented accommodation, and she continues to live there with the two children.

9. Now some 18 months approximately thereafter the wife would have the husband excluded from the home, she to return and live in M with the children.  I make it perfectly clear that I have not determined the use and occupation application.  It may be there is substantial merit therein, but that will be determined by the hearing judge on the adjourned hearing date. 

10. In terms of material from the husband, Mr Thexton has now filed a notice of address for service as at 19 February 2008.  He has in court but not yet filed, although he now has leave to file, an affidavit and a response.  The response is prepared for a Federal Magistrate Court hearing and that will have to be redrawn.  The orders sought in the response are somewhat inappropriate, in terms of that which I understand is before the court, and some careful attention will need to be given to the real issues, primarily the sole use and occupation issue of the M property, which I intend to have retained before the court on the adjourned hearing date.

11. The husband has prepared an affidavit and I have given leave for the filing of that affidavit, which provides limited background as to family history, the acquisition of business and investments, the financial circumstances of the parties and the alleged list of chattels which the wife purportedly took from the M home on separation.  Again I make no finding as to the accuracy of those allegations. 

12. I will make orders whereby the husband has 21 days to make, file and serve a full and meaningful response and affidavit and Form 13 financial statement.  Those documents must all be filed on or before Thursday, 27 March 2008.  The wife will then have a fair and reasonable opportunity to file on or before Thursday, 10 April 2008 any other affidavit upon which she intends to rely.

13. I turn to deal with the property at D, because both parties have indicated that it can and should be sold.  I will therefore order a sale of the D property, which is in the joint names of the husband and wife.  I will order that the parties have the joint conduct of sale and that they provide vacant possession at settlement. 

14. The parties are, through their solicitors, to appoint an independent solicitor to act on the conveyance with regard to the D property.  They are to appoint a firm of real estate agents to sell the property.  The reserve price is to be as agreed between the parties, and, failing agreement, the solicitors will have to determine the appropriate procedure, most likely for the President of the Real Estate Institute to determine the appropriate reserve price.

15. Any registered mortgage on the D property is to be discharged on settlement, together with the reasonable costs and expenses of sale, and the balance of moneys can be held, pending further order of the court or agreement of the parties; and, if held, it is to be in an interest‑bearing account in the joint names of the parties and for which they are equally responsibility to declare 50 per cent thereof by way of interest income on any taxation return they may be required to file. 

16. I do not propose to traverse the issues of presentation and preparation of the property, commonsense will have to apply, and somehow the parties will have to endeavour to get the best price for the property. 

17. In terms of the other matters touched upon in wife's application as amended at 26 February 2008, they can be adjourned to the 15 April 2008 hearing date.  I intend to identify, for the purposes of the hearing that day and to assist the judge who may hear the matter, and I do not know who that will be, that primarily it is the sole use and occupation of the M property and/or the eviction of the husband from that property and/or any personal restraining order that are the primary issues before the court on that occasion.

18. If the parties agree any other matters are urgent, then they can be heard and determined subject to the time available to the judge and at their discretion. 

19. I intend to emphasise to both parties that there has to be full and frank disclosure of all documents.  That is clearly contemplated by paragraph 5 of the order of Carter J of 18 February 2008 and only time will tell whether it has been wholly complied with.  In any event, it is likely that discovery will be a two‑way process. 

20. I will require both parties to file an up‑to‑date Form 13 financial statement.  I will have these reasons transcribed, placed upon the court file and made available to the parties.

21. As to costs, I observe that they have been ordered on a number of occasions, fixed in a sum but with payment reserved.  The last occasion was $1,650.  It is clear that the husband is out of time, has not complied with time limits, though, seemingly, he has constructively consented to the sale of the D property today.  I propose to take a very pragmatic view on costs.  It probably matters little in the overall picture, save every dollar may count to the wife, or the husband.  I propose to make an order for costs for today because I think it is just but to limit the amount that I would otherwise have ordered, and I propose, without hearing from Mr O'Connor, simply to fix the costs at $1000 and no more.  I will direct that those moneys be paid to the wife on the settlement of the D property.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date:  13 March 2008