Denny and Collins

[2008] FamCA 1204

FAMILY COURT OF AUSTRALIA

DENNY & COLLINS [2008] FamCA 1204

FAMILY LAW – PROPERTY – interlocutory orders in the context of proceedings under s79A

Family Law Act 1975 (Cth)

APPLICANT: Ms Denny

RESPONDENT: Mr Collins

FILE NUMBER: SYF 531 of 2005

DATE DELIVERED: 21 April 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 21 April 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rossi Simici Lawyers

COUNSEL FOR THE RESPONDENT: Mr Richardson, SC

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

Orders

1. Until further order, the husband provide the wife through her solicitor with at least 14 days prior notice of the date of any settlement of the sale of F property in the State of New South Wales unless the parties agree to the contrary.

2. The proceedings in relation to a subpoena issued to the husband be adjourned to 2:15 pm on 7 May 2008 before the Docket Judge.

3. Leave to the parties to inspect any documents produced on subpoena by the husband’s mother and by Frank Mathey, solicitor.

4. That the costs of the parties of today be reserved.

5. That otherwise the interim proceedings are adjourned to 2:15 pm on 7 May 2008 before the Docket Judge.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 531 of 2005

MS DENNY

Applicant

And

MR COLLINS

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interlocutory orders in the context of proceedings under s79.I understand those proceedings were commenced in September 2005.  Orders were sought today restraining dealings with a property at F.  I have not had time to deal with this matter and another matter in the list.  I called on the parties' representatives to tell me what priority this matter would have and was told something of the background facts. 

2. The wife seeks orders restraining the sale and disposition of the proceeds of sale, if the property is sold, of a property at F on the basis that she belatedly seeks to retain that property as part of her claim under s79A. In addition she is concerned about the husband's inability to satisfy her as to the detail and the rationale and the justification for making certain payments out of the net proceeds of sale, including: discharging a mortgage on another property, repayment of a debt which the wife would be heard to dispute, and applying some moneys to improvements.

3. The facts do not suggest that there is serious prejudice to the wife's claim in terms of the value of that claim, by the sale of the F property or by the proposed distribution of the proceeds of sale. Although the sale of the property would defeat her claim to retain it, that was not her application until in March of this year, she amended her claim made in September 2005, to that effect.

4. I have seen the parties in parenting proceedings and my recollection is that they do not enjoy a good relationship.  That seems to have affected communication between their lawyers to some extent.  I cannot get to the bottom of all of that. 

5. Injunctions should not be granted lightly. However, even in the narrow confines of proceedings under s79A, accepting the representations about the wife’s case, it seems to me that there is an accepted courtesy in financial proceedings whereby one party has control of assets which are arguably assets of the marriage, for a degree of notice so that the other party can take part in decision making, bring concerns before the Court and so on. It is not as simple, as adding together the description of the wife's claim for the F property and the claim for a further $150,000 and some personalty and taking that away from an asserted equity in a property at N at about $800,000.  That property is subject, I am told, to a mortgage of about $130,000, but that is one of the things the husband proposes to pay out of the F property sale.  I cannot say that the husband’s proposals will leave a sum available to meet the wife's claim. It may be, as Senior Counsel says on behalf of the husband, that that claim is optimistic.  It seems to me that my duty is discharged in these circumstances by an order that preserves the proceeds of sale, at least to the extent that the wife will have notice of the date on which those proceeds are likely to be distributed, or available to be distributed.

6. Next, the matter is in the docket of a Judge and comes before that Judge, I think, at 2.15 on 7 May 2008. I indicated to the parties that I was keen, although albeit ultimately unsuccessful, to avoid intermeddling in the matter in those circumstances because to do so defeats the purpose of the docket system.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  16 February 2009