Brown and Murdoch

[2013] FamCA 684

FAMILY COURT OF AUSTRALIA

BROWN & MURDOCH [2013] FamCA 684

FAMILY LAW – INJUNCTIONS - Inspection of property

Family Law Act 1975 (Cth)

APPLICANT: Executors of the Estate of the late Mr Brown

RESPONDENT: Ms Murdoch

FILE NUMBER: MLC 9886 of 2010

DATE DELIVERED: 4 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nicholson

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Mr Testart

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the wife be restrained by injunction from disposing or altering any of the property which remains in dispute after she has removed and retained her personal property from the boxes of chattels referred to below.

3. That the property not otherwise retained by the wife but subject to the injunction above, be returned by the wife to the storage facility unless otherwise agreed.

4. That the boxes held in storage be delivered to the address nominated by the wife at the expense of the executors of the estate of the husband for the purposes of examination by the wife and any representative nominated by the executors to determine those items that belong personally to the wife.

5. That the proceedings otherwise be adjourned to 10.00am on 18 July 2013 in the Judicial Duty List.

6. That the reasons be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brown & Murdoch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9886 of 2010

Executors of the Estate of the late Mr Brown

Applicant

And

Ms Murdoch

Respondent

REASONS FOR JUDGMENT

1. This is an application late in the afternoon of a duty to stay, which is to say the least, discrete. I am asked to determine, effectively, how the executors of the deceased’s estate and the deceased husband’s widow are to have the opportunity to work out what property belongs to whom in between 360 and 380 boxes that are in storage. The positions are unfortunately controversial, but it seems to me that pragmatism needs to hold sway here. Pragmatism is not a word that appears very often in the Family Law Act, so one has to look to the Act for the jurisdiction and power to make any orders here.

2. Section 114 of the Act provides that in proceedings relating to the division of property, the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate.  The section goes on to provide that the proceedings include the injunction for the continuation and protection of the property of a party to the marriage.  Section 114 (3) provides that: 

   A Court exercising jurisdiction under this act in proceedings other than proceedings to which subsection 1 applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of the decree), and in any case in which it appears to the Court to be just and convenient to do so and either unconditionally or upon such terms and conditions as the Court considers appropriate.

3. Section 114 (1) applies here in the sense of the protection of property.  Both parties seem to have some concerns about whether or not the property belongs to either of them, and indeed it may very well be that it belongs to both of them and therefore might follow them by survivorship.  One way or the other, ultimately there is likely to be a dispute between the parties and the powers in Part VIII of the Act will be invoked.  To the extent that this application is effectively an application for an injunction, sub-s 3 provides that if these are proceedings other than for the sort of injunction that I have just mentioned, then the Court has power to make such order as it is just and convenient, and on various terms.

4. There is no simple solution to this case but it seems logical, and therefore the balance of convenience should be applied, that the boxes are not opened in the storage area because it may take some time.  But rather, they should be delivered by the executors to the home that the wife has nominated where they can be opened in the presence of all persons who have an interest in those boxes and to the extent that there is property that is not disputed that should be taken by the wife.  The property that is disputed should be separated out, and the wife restrained from disposing or altering that property pending further order of the Court.

5. A third category of property which clearly belongs to the estate and in which the wife has no immediate interest can be then returned at the wife’s expense in those boxes back to the storage shed.  The storage facility in this case apparently has been prepaid so there is no further cost to either party.  On the balance of convenience test it seems to me that is the most logical outcome and I would propose to make orders in those terms.

   RECORDED  :  NOT TRANSCRIBED

6. I propose to make orders in terms of the minute by consent of the parties save for paragraph 5A which I will have expunged from the minutes. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 June 2013.

Associate: 

Date:  17 July 2013