BYRD & BYRD

[2011] FamCA 380

FAMILY COURT OF AUSTRALIA

BYRD & BYRD [2011] FamCA 380

FAMILY LAW - PROPERTY – Whether husband should be appointed as trustee for the sale of property at B – Whether orders previously made by the court should be suspended and/or dismissed allowing the wife to purchase the property at B – Whether the applications should be adjourned to the final hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Byrd

RESPONDENT: Ms Byrd

FILE NUMBER: SYC 767 of 2009

DATE DELIVERED: 17 May 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 14 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

COUNSEL FOR THE RESPONDENT: Ms Christie

Orders

1. The husband’s application in a case filed 10 February 2011 and the wife’s response to an application in a case filed 18 March 2011 are both adjourned for consolidation with and determination in the final hearing listed to commence on 20 May 2011.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 767/2009

Mr Byrd

Applicant

And

Ms Byrd

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application filed by the husband, Mr Byrd on 10 February 2011. That application seeks orders for the appointment of the husband as trustee for sale of the property at B (“the B property”). It seeks injunctions against Ms Byrd, the wife in relation to that property and other ancillary orders.

2. In response to that application the wife, Ms Byrd filed a response to an application in a case on 18 March 2011. That response seeks that orders made on 4 and 5 August 2010 (as specified in the document) be suspended, the wife pay the husband the sum of $1million within 28 days, other orders made on 4 and 5 August 2010 be discharged and other ancillary orders. The orders sought relate to the B property.

3. The orders made by the court on 4 and 5 August 2010 inter alia provided for the wife to have exclusive occupation of the B property, that such property be sold by private treaty for not less than $2.2million and that the sale proceeds be paid as $1 million to the husband and the balance to the wife. If the property was not sold within 6 months then it was to be put to auction.

4. In the same orders there was an order for release of monies from the sale of the former matrimonial home at E to the wife of $2 million. She was to use those funds only for the purpose of purchasing a property at R Street, Sydney Suburb 1. The husband was restrained from encumbering the property at N Street, Sydney Suburb 2 without the written consent of the wife. There were other orders made.

5. The final hearing in this matter is listed to commence on Friday 20 May 2011.

6. The other documents relied upon by the husband in the hearing of this application are his amended response to an application for final orders filed 7 September 2009; his financial questionnaire filed 1 December 2010; his affidavit sworn 10 February 2011; his affidavit sworn 31 March 2011 and the reasons for judgment published by His Honour Justice Loughnan on 1 September 2009.

7. The documents relied upon by the wife include her affidavits sworn 18 March 2011 and 1 April 2011 and an affidavit of Ms D dated 30 March 2011.

8. The B property has been the subject of a number of applications determined by the court. On 1 September 2009 the court determined, inter alia, the wife’s application for exclusive use of the B property. The court ordered that the husband have exclusive use and occupation of the property at certain specified times and that the wife have exclusive use and occupation at other specified times.

9. On 4 and 5 August 2010 the court dismissed the wife’s application for exclusive occupation of the property. The court then made orders by consent which provided for the wife to have exclusive occupation of the property and to let it pending its sale. The orders then provided for the sale of that property.

10. It is the husband’s case that the application by the wife is now tantamount to abuse of process so far as it seeks to extend her exclusive occupation of the B property. The wife’s case is that she is in a position to pay the husband the amount of money ($1 million) which he is ordered to receive from the sale of the B property.

11. The husband’s application is for the applications in a case currently under consideration to be adjourned to the trial listed for 30 May 2011.

12. There are complexities which impact upon the court being able to do justice between the parties, in this case, which are not possible for me to fully understand at this time. Doing the best I can I appreciate that the B property is one that each of the parties wanted to retain following separation. As I understand the husband’s case, it is that by way of compromise the orders of 4 and 5 August 2010 created a circumstance where neither party would retain the property. He now complains that if the wife’s orders are granted then the agreement reached between the parties in August last year will have been circumvented by the wife.

13. There are further arguments as to the final entitlements of the parties from the marriage and again the husband has argued that the orders proposed by the wife would give rise to a final result which was too generous in her favour.

14. The husband also refers to the offer of finance relied upon by the wife and says that has now expired. He submits that the wife is therefore not in a position to establish she can meet the orders that she in fact proposes the court should make.

15. Given the complexity of the matter and the proximity of the final determination (the end of this week) I propose to grant the husband’s application for an adjournment to 20 May 2011.

16. The orders of the court will be that the husband’s application in a case filed 10 February 2011 and the wife’s response to an application in a case filed 18 March 2011 are both adjourned for consolidation with and determination in the final hearing listed 20 May 2011.

    .

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench  

Associate:   

Date:  17 May 2011