Burns and Smith

[2009] FamCA 274

FAMILY COURT OF AUSTRALIA

BURNS & SMITH [2009] FamCA 274

FAMILY LAW – PRACTICE AND PROCEDURE – Bankrupt wife – No right to institute property and financial proceedings – Intervention sought by third party trust inappropriate – Dismissal of applications

Family Law Act 1975 (Cth)

APPLICANT: MS BURNS

RESPONDENT: MR SMITH

INTERVENOR: MR M (Trustee in Bankrupcy of the Estate of the Wife)

FILE NUMBER: MLC 8968 of 2007

DATE DELIVERED: 6 APRIL 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 6 APRIL 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR: MS CUSMANO

SOLICITOR FOR THE INTERVENOR: KAHNS LAWYERS

Orders

IT IS ORDERED:

1. THAT the application of the wife filed 5 March 2009 and 12 March 2009 be dismissed.

2. THAT the application of Mr W filed 1 April 2009 be dismissed.

3. THAT there be no order as to costs.

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8968 of 2007

MS BURNS

Applicant

And

MR SMITH

Respondent

And

MR M (Trustee in Bankrupcy of the Estate of the Wife)
Intervenor

REASONS FOR JUDGMENT

1. The matter of Smith and Burns and others is before me in the Judicial Duty List.  Ms Burns purports to appear for herself.  Ms Cusmano, solicitor, appears for Mr M, the trustee in bankruptcy of the wife's estate.  Mr W has filed an application on 1 April 2009 and initially proposed to seek leave to appear somewhat as an adjunct to the wife's application. There has been no appearance by or on behalf of the husband, but his solicitor, Ms Maria Barbayannis, has this day filed an affidavit indicating that she has no instructions to act on behalf of the husband and will not be at court and nor would the husband be at court.  She recorded that the wife is an undischarged bankrupt and in any event is a vexatious litigant, having been so declared by myself on 5 September 2005.  Those matters are not a matter of dispute.

2. The first application of the wife was filed by her on 5 March 2009.  In that application she sought - and I have given her the opportunity to explain to the court - initially leave to reopen the case, and thereafter - and very much the core of the complaint of the wife - to stay the distribution of funds from the sale of the property at F.  I will deal with those matters in a moment.  The second application by the wife was filed by her on 12 March 2009.  This application sought an order for a member of the Burns Family Trust to carry out a search for possessions, goods and chattels at the F property.

3. Mr W filed an application on 1 April 2009, as I referred to, seeking permission to file fresh applications and for an order that he be appointed (in summary) as an assistant to Ms R and a Family Trust and otherwise to be involved on behalf of others in the court proceedings. The affidavit of Mr W and the accompanying exhibits and documents that traverse many, many years past are before the court.

4. The position of Ms Cusmano on behalf of the trustee is that the wife should have no right of audience because she is an undischarged bankrupt, that the trustee is dealing with the wife's estate, that all of her and Mr W’s applications are misguided and wholly inappropriate.

5. An overview of this matter is difficult to fully understand because the court files and boxes of documents are in archives and this matter has been before the court for a very lengthy time.  What is clear and is a matter of agreement between all parties is that the section 79 proceedings were heard and determined by the Deputy Chief Justice Faulks in October 2004.  Thereafter an appeal was discontinued, although the wife has clearly today indicated that part of the grounds was the inability for her to be paid $2,500 to obtain transcript and to appeal.

6. I have been referred to paragraph 18 of my extempore reasons for judgment pronounced 9 September 2005 and I do understand that issue.  Subsequently, however, the matter came before Kay J in December 2005 who dealt with the appeal issues and finalised matters.

7. From what I have heard from the bar table there have been proceedings in various tribunals and courts.  There are currently proceedings in the Federal Magistrates Court within its bankruptcy jurisdiction.  The wife's original three‑year bankruptcy has been extended by a further three years by court order, pursuant to an objection lodged on discharge application.  Otherwise there have been various proceedings in respect of the home at F, the subject of these proceedings.

8. As best I can understand, and after much difficulty, that home was sold at public auction pursuant to the court orders.  An arm's length purchaser with no part in the proceedings purchased the property - he is not here today and has never been served - but effectively orders are sought to re-enter the property and to search and obtain documents, assets or whatever.  I do not fully understand.

9. Ms Cusmano has made it clear that there was enormous difficulty involved with the sale and thereafter obtaining possession of the property from the wife or those on her behalf and there have been various orders involving the Sheriff and others to obtain possession and/or to give time for the home to be assessed and/or furniture or other items removed.  I am sure this matter has a very long and detailed history and seemingly it is far from wholly resolved.

10. I, however, only have to deal with matters before the court.  The wife's starting point is she has no right of audience, as her trustee in bankruptcy is required to speak on her behalf.  I certainly will not grant leave to her to appear and oppose orders now sought by the trustee and there is no reason to discharge orders that have been earlier made in the court.

11. As to Mr W, I have had a fairly blunt but polite discussion with him.  He has wholly misunderstood his role and is misguided, both in his application and/or his right of audience.  He is not a legal practitioner.  He appears as a respected member of the community who has received an Australian medal for services to the community, but he knows little or nothing of the facts of this case that he is asked to put forward matters which were clearly prepared by others.  He should not be here and his application has no logic or merit and certainly not content, and I will dismiss that application. 

12. The reality is that this matter is not properly before the Family Court, it is before the Federal Magistrates Court, in another jurisdiction.  There are no current issues before this court.  It seems as if a cause long, long ago dealt with by the court and which should have been finalised years ago, still remains part of the ongoing crusade of the wife.  I cannot imagine anything I say will ever change that reality but it is costing the community and others time and money.  There is no legal merit, commonsense or appropriateness in any of the matters in the application of the wife or of Mr W and they will be now dismissed.

13. Ms Cusmano, on behalf of the trustees, was tempted to float an application for costs but in the circumstances of the wife, that would not be just on this occasion and would be unsuccessful.  I would certainly not entertain a costs order against Mr W who has come here out of community spirit to assist the wife, but I have stressed to him that he needs to immediately and sensibly reassess his involvement in this case and that I am sure he will do.

14. I will have these reasons transcribed, put upon the court file and made available to the parties.  There is no further action that I can take in relation to paragraph 18 of my earlier reasons for judgment of 5 September 2005 and any such moneys would have fallen to the trustee in bankruptcy to distribute or deal with.  In any event, the appeal is long out of time and has been dealt with by Kay J when he was a member of that Appeal Court.

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

………………………………………………………..
Associate:  Annette King