Bourke and Bourke (No. 3)

[2008] FamCA 450

FAMILY COURT OF AUSTRALIA

BOURKE & BOURKE (NO. 3) [2008] FamCA 450

FAMILY LAW – PROPERTY – Case management

APPLICANT: Mrs Bourke

RESPONDENT: Mr Bourke

FILE NUMBER: MLF 2814 of 2006

DATE DELIVERED: 3 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 3 June 2008

REPRESENTATION

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

SOLICITOR FOR THE APPLICANT: Callahans Lawyers

COUNSEL FOR THE RESPONDENT: Mr C.G. Gidley

SOLICITOR FOR THE RESPONDENT: Thexton Lawyers

Orders

1. That S Pty Ltd (ACN …) shall be and is hereby joined as a party to these proceedings.

2. That the solicitors for the applicant shall serve copies of all material in support of her application for final orders (not already served on the third party by the applicant), together with a copy of orders made today.

3. That S Pty Ltd shall:

   (a)File and serve a Notice of Address for service within 7 days hereof;

   (b)File and serve a response and any material in response to the wife’s application for final orders within 21 days hereof; and

   (c)Produce to the solicitor for the wife for inspection and copying all documentation relating to:

   (i)     The sale of the seven units at W and its partnership with the husband including a full financial accounting with respect to the W property project (including all loan books);

   (ii)    The transfer of the property being Unit 3 at W (Volume …, Folio …) from the husband and S Pty Ltd and documents evidencing any consideration paid with respect to that transfer; and

   (iii)     Any encumbrance affecting Unit 3, W, within 21 days hereof.

4. That the husband make file and serve affidavit(s) in response to the wife’s application for final orders within 21 days hereof.

5. That the wife make file and serve affidavit(s) in response to the husband’s material within 21 days of service of the husband’s affidavit(s) as set out in paragraph (4) herein.

6. That the husband shall comply with paragraph 3 of the orders made by me on 14 June 2007, within 14 days hereof.

7. That the List Registrar is requested to advise the parties of a mention date in about 7 weeks’ time with a view to setting the final hearing date.

8. That all questions of costs of this day shall be reserved.

9. That the question of the wife’s costs reserved pursuant to paragraph 2 of my orders of 15 April 2008 shall remain reserved and shall be dealt with at the conclusion of the final hearing or earlier upon application.

10. That the husband shall forthwith do all acts and things necessary to:

    (a)Have his solicitor withdraw the caveat from the title to the property at D in light of the order made by me in paragraph 2 of the orders of 14 June 2007; and

    (b)Have Q Pty Ltd withdraw the caveat from the title to the property at M in light of the order made by me in paragraph 2 of the orders of 14 June 2008.

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. Mr Gidley, on behalf of the respondent husband, is seeking that the wife's property application be further adjourned.  That application needs to be seen in the context of the reasons for judgment given by me on 15 April 2008. 

2. In those reasons for judgment, I recited what had been an appalling and sorry history in this case.  It had left the wife in the position that, despite various efforts in various ways, she could not obtain the documents that were needed from the husband to enable the case to proceed in an orderly way.  Ample opportunity had been extended to him and his legal representatives for that to occur.

3. Young J had made orders on 5 March 2008, giving the husband a very precise opportunity to file a response, an affidavit of evidence‑in‑chief, and an updated Form 13 financial statement.  In doing so, I can see from his Honour's reasons, his Honour referred even at that point to the poor history of compliance by the husband. 

4. When the matter came before me on 15 April 2008, there was still no compliance.  The wife, through her legal representative, urged me to hear the matter on an undefended basis.  Ultimately, I refused for the reasons given in my reasons for judgment that day, which are on the court file. 

5. In particular, after setting out the very poor history, I referred to the fact that Mr Potter, who appeared for the husband that day, sought one last opportunity to either obtain the relevant documents from the client’s Mr Thexton – and I was told they were virtually ready – or to obtain the documents from an alternative solicitor or for the client to prepare the documents himself.

6. I noted in my reasons for judgment, at paragraph 8, that although the last of those options was the least desirable, that was a matter for the husband.  The most obvious course, I noted, was that he needed to obtain a solicitor who would perform the work that he needed.

7. I went on in my reasons to deal with the time-frame for the adjournment.  I noted, at paragraph 10, that although it was in the wife's interest for the matter to be dealt with quickly, I was cautious not to provide too short a time-frame so that the husband would have the time to "chase down this solicitor" or to make an alternative arrangement.  I made it clear that I would allow a month so that the husband would have adequate time to prepare.  I said:

   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. 

8. The husband has returned today without such documents.  There is absolutely no reasonable basis, taking into account the fairness for both parties, why this case should be further adjourned.  So I will hear from you both as to how we proceed today. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate: 

Date:  3 June 2008