Bourke and Bourke (No. 2)

[2008] FamCA 308

FAMILY COURT OF AUSTRALIA

BOURKE & BOURKE (NO. 2) [2008] FamCA 308

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournment

APPLICANT: Mrs Bourke

RESPONDENT: Mr Bourke

FILE NUMBER: MLF 2814 of 2006

DATE DELIVERED: 15 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.J. O'Connor

SOLICITOR FOR THE APPLICANT: Callahans Lawyers

COUNSEL FOR THE RESPONDENT: Mr D.J. Potter

SOLICITOR FOR THE RESPONDENT: Thexton Lawyers

Orders

1. That all existing applications shall be adjourned to the Interim Hearing List before me at 10.00am on 3 June 2008 for the wife’s application for leave to proceed on an undefended basis for final property orders or her application for sole use and occupation of the property at M to proceed.

2. That the wife’s costs of this day shall be reserved and the husband’s solicitor, Mr Glenn Thexton is advised to attend court on 3 June 2008 so that a determination can be made as to whether the wife’s costs should be met by the husband, the solicitor, or by way of a combination.

3. That the wife shall have the carriage of the sale of the real property at D and in the event that the husband refuses or fails to sign any document required to list the property for sale or to complete the sale, a Registrar of the Family Court shall be appointed pursuant to s 106A of the Family Law Act to sign any documents on the husband’s behalf.

4. That the husband shall make file and serve any documents he seeks to rely on in this matter no later than 4.00pm on 14 May 2008.

5. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

6. That there shall be a transcript of today’s reasons for judgment, a copy placed on the court file, a copy sent to each party and the husband’s solicitor, Mr Glenn Thexton.

IT IS NOTED that publication of this judgment under the pseudonym Bourke & 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 2006

MRS BOURKE

Applicant

And

MR BOURKE

Respondent

REASONS FOR JUDGMENT

1. This morning I have had an application made on behalf of the wife that her final property application, the original version of which was filed on 28 September 2006, should proceed to final hearing on an undefended basis.

2. Her reasons for that are well described in her affidavit filed 26 February 2008, particularly at paragraphs 91 to 106.  Those paragraphs set out a very sorry history, from her perspective, of the husband's lack of co-operation in this case.  It is clear to me that he has erred in a number of ways in the way this litigation has been conducted.  He has failed to appear on some occasions, he has failed to file material with the court, he has failed to make proper disclosure, and he has failed to comply with some court orders.

3. If I leave the summary at that, there is every reason to assume that I would accede to the wife's request today to have the matter proceed on an undefended basis, the more so when it is coupled with the fact that in the past she has had to make an application for substituted service, in which she succeeded.

4. However, there is a perplexing feature that, as I have said in the course of argument to counsel, makes it difficult for me from a procedural fairness and natural justice point of view, to take the leap to hear this matter once and for all on an undefended basis when final property orders would of course be final and accordingly would have far‑reaching consequences for the parties.

5. That difficult and perplexing feature is this:  The husband is represented by a solicitor called Mr Thexton.  I am conscious that he has appeared in the past in this case.  Counsel Mr Potter, has found himself in a very difficult position today, and I must say has acted honourably by remaining at court and continuing to act for the husband.  Mr Potter, from the time the matter was mentioned this morning, said that he had a particular difficulty, which was that his client was at court, he was at court, but his instructing solicitor, who had promised to appear and to bring documents, in fact had failed to appear.

6. Mr Potter has outlined for me his dealings with the solicitor over the last week or so.  It seems that the solicitor confirmed to him what his client has said, that he has given the solicitor a number of documents, from which the solicitor was preparing his affidavit material, albeit late.

7. Thereafter, the way Mr Potter describes it, he has had various conversations with the solicitor, who has continued to make various promises about the preparation of the material, but the promises have been unmet, including his promise to attend here at court.  Mr Potter has had ongoing difficulties making contact with him.  That is a difficulty - as I have said in open court - that I am aware court staff experienced when they tried to ascertain what documents were available for today, and whether or not the husband and/or the solicitor would be attending.

8. Mr Potter proposes that the case should be adjourned so that the husband has this one last opportunity to either obtain the relevant documents from Mr Thexton, to obtain the documents from an alternative solicitor; or alternatively to prepare the documents for himself.  Although the last of those options is the least desirable, that is up to him.  The most obvious course would appear to be that he needs to obtain a solicitor who will actually perform the work for him. 

9. Mr Potter also concedes quite properly that there must be a costs order today in favour of the wife, but that the issue as to whether the husband or Mr Thexton should pay should be reserved so that I can hear argument and in particular give the solicitor the opportunity to be heard on that topic.  From a natural justice point of view, I must do that.

10. It is in the wife's interests for the matter to be dealt with quickly, but if I provide too short a time-frame, it would mean that the husband has not been given the proper opportunity to chase down this solicitor or to make an alternative arrangement.  So I propose to allow a period of about a month, so that he will have absolutely adequate time to prepare.  He is firmly on notice.  I am going to bring the matter back, at least for mention, before me.  It does not mean that I will manage it beyond that.  I have given him an opportunity today.  In return, he must have proper answering documents before this court when the matter comes back.

11. As well as the costs order today, there should be an order that the wife now have the carriage of the sale of the D property, and that if the husband fails within a very short time frame to sign requisite documents in relation to it, a Registrar of the court shall sign relevant documents pursuant to s 106A of the Family Law Act.

12. I will ask both of you to draft orders.  In terms of a day coming back to court, probably the best day would be 16 May 2008.  I emphasise it is just for mention to hear what is happening.  Could you write that into the orders, too, for mention before me at 10 o'clock. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate: 

Date:  15 April 2008