Crease and Landers

[2010] FamCA 1265

FAMILY COURT OF AUSTRALIA

CREASE & LANDERS [2010] FamCA 1265

FAMILY LAW – PROPERTY – restraining orders

FAMILY LAW – PRACTICE AND PROCEDURE – interim hearing adjourned - issue of service of documents

Family Law Act 1975 (Cth)

APPLICANT: Mr Crease

RESPONDENT: Ms Landers

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: LNC 179 of 2010

DATE DELIVERED: 23 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 23 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr W Ayliffe

SOLICITOR FOR THE APPLICANT: Doolan & Brothers

COUNSEL FOR THE RESPONDENT: Ms A Trezise

SOLICITOR FOR THE RESPONDENT: Andrea Trezise

Orders

1. These proceedings be adjourned for interim hearing before me at 12.00 noon on
   17 January 2011 at Sydney.

2. Leave be given for the parties to attend by telephone by dialling ...

3. The husband be restrained from filing any further material in respect of this application.

   IT IS DIRECTED

4. The wife file and serve all material upon which she relies on or before 4.00pm Friday 14 January 2011 and leave be given for the service of the material upon the husband to be undertaken by way of email to the husband’s solicitors and the husband’s counsel.

5. A copy of the reasons for these orders be taken out and placed on the Court file.

6. These reasons not be published.

   IT IS FURTHER ORDERED

7. Costs of both parties be reserved.

   IT IS CERTIFIED

8. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crease & Landers 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 SYDNEY

FILE NUMBER: LNC 179/2010

Mr Crease

Applicant

And

Ms Landers

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed on behalf of the respondent husband seeking, as it were, the exclusive power to operate the two Business D outlets in Tasmania, one in Launceston and one in Hobart.  It is supported by an affidavit of the husband in which he sets out that the very fabric of the businesses are at risk in terms of the arrangements with Business D, in terms of the Tax Department, and also in terms of the occupation of the various premises.  The evidence asserted by the husband is that this has been a matter of some contention for a significant period of time, culminating in a letter, setting it out in blunt and unambiguous terms, according to his counsel, on 25 November 2010. 

2. What has happened since is this that the matter was before me, as I understand it, on 1 December 2010, this issue was not raised with me.  The application in the case was prepared by the solicitors for the husband, and the affidavit was, likewise, prepared.  The affidavit was sworn on Friday, 17 December and, curiously, sent to either the Hobart or Launceston Registry of the Court by document exchange.  It came to the notice of a Registrar on Monday or Tuesday, 20 or 21 December 2010, the documents having been filed on Monday, 20 December 2010.  At that time, a Registrar referred the material to me, and I listed it for this morning, some day and a half after it was filed.

3. There has been some laches in all of the circumstances, it seems, on the part of the husband or those who represent him.  The wife says this, that there are significant issues to be determined by the Court in terms of this application and, in submission, raises a number of submissions as to the veracity of the application, and as to the fundamental basis of the application.  The legal practitioner for the wife says that she only received the documents on or after 21 December 2010, by which time her office had closed down, her staff had left, and she has no resources in which to file material in reply.  She says, although there is no evidence of this, that about $101,000 was taken from an account in December 2010, and that it was open for the husband to raise this on 1 December 2010. 

4. I am caught in that the application is made at one minute to midnight, in real terms.  It is less than 48 hours before offices close, or 36 hours before shops close for Christmas.  The wife is entitled to put her material before the Court as if the application had been made on 25 November 2010; in a timely way, it could have been dealt with.  I am concerned, of course, that this business could be under threat.  As such, I intend to return early from my holidays and deal with the matter by telephone link at 12 noon on 17 January 2011. 

5. I will be giving the wife leave to file affidavit and material in reply, provided it is served by Friday, 14 January, and even that will put enormous pressure on the wife, as her solicitors, I understand it, will not be returning until the day before.  But, in the circumstances of the urgency raised by the husband, I will deal with it that way.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on Thursday, 23 December 2010.

Associate:     

Date:              23 December 2010