Dove and Dove

[2007] FamCA 1065

FAMILY COURT OF AUSTRALIA

DOVE & DOVE [2007] FamCA 1065

FAMILY LAW – PRACTICE AND PROCEDURE – Interim procedural matters

Family Law Act 1975 (Cth)

APPLICANT: MRS DOVE

RESPONDENT: MR DOVE

FILE NUMBER: MLC 9303 of 2007

DATE DELIVERED: 6 SEPTEMBER 2007

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 6 SEPTEMBER 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR FARMER

SOLICITOR FOR THE APPLICANT: R & G LAWYERS

COUNSEL FOR THE RESPONDENT: MR PUCKEY

SOLICITOR FOR THE RESPONDENT: GRICE & GRICE

ORDERS

1. THAT the further hearing of all extant interim applications be adjourned to the Judicial Duty List on Monday 24 September 2007 at 10.00 a.m.

2. THAT each of the husband and wife be directed to appear at Court punctually on that day.

3. THAT on or before Friday 14 September 2007 the husband make, file and serve:

   (a)         a response to the wife’s application filed 20 August 2007;

   (b)         his affidavit in support of orders sought by him;

   (c)         any other affidavits upon which he intends to rely;

   (d)         a Form 13 financial statement.

4. THAT on or before Friday 21 September 2007 the wife make, file and serve such additional affidavit(s) as she may intend to rely upon.

5. THAT the proposed adjournment date of 12 September 2007 be vacated.

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

7. RESERVE the costs of this day of counsel and solicitor appearing for the parties.

IT IS NOTED:

A.       THAT the proceedings before the Court occupied less than two (2) hours.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Dove & Dove

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9303 of 2007

MRS DOVE

Applicant

And

MR DOVE

Respondent

REASONS FOR JUDGMENT

1. The matter of Dove is before me in the Judicial Duty List.  Mr Puckey of counsel appears for the wife, Mr Farmer appears as city agent for Grice & Grice Solicitors who appear for the husband.  The wife is in court, the husband is not at court and his absence from court has been explained by Mr Farmer on the basis of past injury sustained in a motorbike accident of Christmas day of last year and what he said to be ongoing treatment and medication required as a result thereof.

2. The initiating application was filed by the wife on 20 August 2007.  In support there was filed an affidavit and a financial statement.  I have read those documents.  The urgent interim orders that the wife seeks, and which she has sought as a matter of urgency, are related to the requirement of the husband to sign and release a caveat over a property at L. 

3. The wife owns that property together with a corporate solicitor.  The husband's name is not on the title.  There is an offer to purchase that property by an arm's length purchaser for a sum of approximately $290,000.  The mortgage is approximately $233,000.  The equity subject to sale costs and other proper disbursements would be $57,000 of which the parties in this case may have an entitlement to 50 per cent less other costs and moneys owing.

4. The reality is that there is an ongoing and substantial monthly commitment for the mortgage which the wife is currently servicing.  That may well fall due in the next few days as to the next instalment, but that will have to be dealt with by the parties, and by the court at a later date and as part of the many issues comprising an overall property settlement.

5. I do not propose to detail the facts of the marriage or post separation, though I understand that there is likely to be some contentious issues raised by one or both parties.  There are additionally other interim orders sought by the wife that will need to be considered in relation, not just to the L property, but also to the property at C. The preliminary application of Mr Farmer was for an adjournment and ideally for 21 days.  The basis of that application is predominantly dealt with in the affidavit of Mr Grice, solicitor, which is to be filed by leave this day and which I observe was to be filed yesterday but for some reason that filing was cancelled.  I have however read that affidavit and its annexures which include a number of letters from medical practitioners including Dr W, the R Clinic, and Dr B.

6. It is clear that the husband is currently taking medication said to be necessary to control pain.  I make no finding on the basis of the letters, but clearly there are live issues for the parties to consider and perhaps for the court to hereafter determine.  In particular Mr Farmer has highlighted the comment made by the consultant physician that:

   "The husband's medical conditions do make it more difficult for him to function in a normal capacity."

7. The submissions of Mr Puckey are significantly directed to the fact that the husband elects not to attend, that he knows of the sale and has allegedly said that he does not want the sale to proceed, presumably on the basis that he has little or no regard to the financial consequences of an aborted sale.  Again, I carefully make no finding of fact.  I was provided a copy of a letter dated 13 July 2007 written by the husband's solicitors to the wife's solicitors.  The language is clearly very direct and emotive.

8. I observe that the content of the letter states that like issues will be the subject of judicial comment at a final hearing, though I express no view save that might not be the outcome.  Nevertheless the tone of the letter, the fact that instructions were given in that regard and its content, highlight the difficult personal issues between the parties and the current attitude of at least one of the parties.  Again, I make no further finding of fact nor further comment as this matter will be returning before me on an interim basis. 

9. I was urged by counsel for the wife to hear and determine the matter today, notwithstanding the absence of the husband or material from the husband.  The basis of that application was twofold.  First, the deteriorating financial circumstances to the wife, and secondly the time that the husband has had to respond knowing of the issues and his reckless approach (it is said) to serious financial issues.  All of these matters can be determined at another time and I now make no finding.

10. What I propose to do is to grant an adjournment on the application of Mr Farmer and to stand this matter over to September 24 in the Judicial Duty List at 10.00 a.m.  It so happens that is the next available date and on current court rosters I will be sitting in the list on that day.  I will give directions for both parties to attend court that day and I will have appropriate affidavit material filed and served.

11. By 14 September the husband must make, file and serve any response upon which he relies, together with an affidavit from himself as to all relevant financial and factual issues, and any other affidavits upon which he intends to rely, and that may include medical evidence or an affidavit from his solicitor.  A Form 13 financial statement must also be filed and appropriately served.  I will grant to the wife an opportunity to file any appropriate affidavit by 21 September as she may be so advised and in response to issues raised by the husband but do not put her under any specific obligation to file such an affidavit.  That will have to be a matter of judgment for her solicitor.

12. For those brief extempore reasons and specifically making no finding as to any matter of fact and to facilitate the husband an opportunity to be at court and to present argument, and in the knowledge that neither the wife nor the corporate solicitor as vendor has signed the contract of the sale of the L property, I do propose to adjourn this matter, and not on a part-heard basis, to 24 September in this list.

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

………………………………………………………..
Associate:          
Date: 13 September 2007