BURGE & BURGE

In *Burge & Burge*, the husband sought orders from the Family Court of Australia concerning jointly owned property. The central dispute involved the wife's ongoing litigation with an insurance company regarding repairs to this property. The husband sought to compel the wife to litigate this dispute and requested that the property be sold pending its conclusion, or alternatively, sought an injunction.

The court was required to determine whether it possessed the power under section 79 of the *Family Law Act 1975* (Cth) to compel the wife to litigate her dispute with the insurance company. Further, the court had to consider whether it should order the sale of the jointly owned property while that dispute remained unresolved, and whether it should exercise its discretion to grant an injunction in the terms sought by the husband.

Mercuri J considered the scope of the Family Court's jurisdiction under section 79 and the principles governing the exercise of its discretion in property settlement matters. The court analysed whether the dispute with the insurance company constituted "property" or a "financial resource" within the meaning of the Act, and whether it was appropriate to make orders that would effectively direct the conduct of separate litigation. The court also examined the criteria for granting injunctive relief, including the need for a serious question to be tried and the balance of convenience.

The court ultimately found that it did not have the power to compel the wife to litigate her dispute with the insurance company, nor was it appropriate to order the sale of the property pending the outcome of that separate litigation. The application for an injunction was also dismissed.