Freer and Freer and Ors (No. 3)

[2009] FamCA 760

FAMILY COURT OF AUSTRALIA

FREER & FREER AND ORS (NO. 3) [2009] FamCA 760

FAMILY LAW – PROCEDURAL – applications

Family Law Act 1975 (Cth)

APPLICANT: Ms Freer

FIRST RESPONDENT: Mr Freer

TRUSTEE IN BANKRUPTCY: Mr Smith

INTERVENOR: Mr Rickards

FILE NUMBER: ADF 1629 of 2005

DATE DELIVERED: 17 June 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 17 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Lynch Meyer

COUNSEL FOR THE RESPONDENT: Mr Wells QC

SOLICITOR FOR THE RESPONDENT: Swan Lawyers

COUNSEL FOR THE OTHER PARTY: Mr Gretsas

SOLICITOR FOR THE OTHER PARTY: Gretsas & Associates

COUNSEL FOR THE INTERVENER: Mr Dart

SOLICITOR FOR THE INTERVENER: Howe Martin & Associates

Orders

1. That the Further Amended Application in a Case filed by the husband on 12/5/09 be dismissed and removed from the active pending cases list.

2. That the wife’s and the trustee’s oral application for costs be listed for hearing at 12:00pm on 18 June 2009 but in the event that the matter cannot proceed at that time those applications be listed for hearing at 9:00am on 28 July 2009.

3. That the wife have leave to file and serve an Amended Application for Final Orders within 28 days of the date hereof.

4. That the Trustee have leave to file and serve an Amended Response within 14 days of receipt of the Amended Application filed by the wife.

5. That the husband have leave to file and serve an Amended Response within 28 days of receipt of the Amended Response filed by the Trustee but in any event within 10 weeks of the date hereof.

6. That the other party Mr Rickards have leave to file and serve a Response within 28 days of receipt of the Amended Response filed by the Trustee.

7. That the Trustee have leave to file and serve an updated affidavit of evidence in chief within 28 days of the date hereof.

8. That the husband have leave to file and serve an updated affidavit of evidence in chief and an updated financial statement within 10 weeks of the date hereof.

9. That the other party Mr Rickards have leave to file and serve an updated affidavit of evidence in chief within 10 weeks of the date hereof.

10. That the wife have leave to file and serve an updated financial statement within 28 days of the date hereof.

11. That the wife, the husband and Mr Smith forthwith jointly instruct a valuer to provide an updated valuation of the Adelaide property and the bayside property at their joint cost such updated valuation to be filed and served within 8 weeks of the date hereof.

12. That within 10 weeks of the date hereof all parties make disclosure by discovery pursuant to Rule 13.20 of the Family Law Rules 2004.

13. That any further affidavit of evidence in chief by any witness proposed to be called by the husband be filed and served within 10 weeks of the date hereof.

14. That upon the wife filing an Amended Application for Final Orders the wife serve that application upon the adult children of the marriage P Freer and K Freer.

15. That this case be adjourned generally to 9:00am on 18 September 2009 for directions.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1629 of 2005

MS FREER

Applicant

And

MR FREER

Respondent

And

MR SMITH

Trustee in Bankruptcy

And

MR RICKARDS

Intervener

EX TEMPORE REASONS

1. This matter is listed today on the husband’s Further Amended Application in a Case filed on 12 May 2009.  Two days were set aside to hear that application.  There were responses to it filed by the wife and the trustee, but the application was being supported by the intervener Mr Rickards. 

2. When the matter was called on today, I was advised that the matter was not proceeding and that is now confirmed, and although Mr Wells QC, for the husband, indicated that his client would, in due course, file a Notice of Discontinuance my preference is to deal with it and finalise it today.  Thus I propose to dismiss that application. 

3. That then led to a consideration of both listing this matter for trial and making orders in preparation for that trial, and I have gone through that process.  Can I just, though, deal with one issue that arises directly from the dismissal of the application and that is the question of costs.  Mr Gretsas, for the trustee, and Mr Berman, for the wife, both make oral applications for costs.  I propose to list those applications at 12 noon tomorrow, but on the basis that the trustee and the wife will be able to prepare and provide, to the husband’s legal advisors, schedules of the costs sought there will be sufficient time to enable the husband to properly instruct his counsel about that.  If that cannot occur, then I propose to adjourn the matter, without attendance of counsel, to an alternative date, namely, 9:00am on 28 July 2009. 

4. Can I then come back to the issue of the listing for trial, and the preparation for that trial.  I have not been able to give a precise listing for trial in this matter, but it seems that it is likely that it can be heard in November and the particular dates that I have identified are from 11 November through to 25 November 2009.  I cannot confirm that yet, though, because, as I have indicated to counsel, I have another matter that I am waiting to hear back as to the availability of witnesses, which has priority over this matter.  However as soon as I know the position with that other case, and I expect to know that by the end of July, I will have my associate advise everyone in this case as to whether the matter can start on 11 November 2009. 

5. We looked at some alternatives but unfortunately, at this stage, we have not been able to identify an alternative.  If it cannot be listed to commence on that date in November, I will need to get everyone back to look at when the matter can be listed thereafter.  On the assumption that the matter can be listed in November, and that is highly likely.  I then turned to address the preparation required for that listing.  I will not repeat what has been said between bench and bar about that though and I will just launch straight into the orders.  I will just note though that in April 2008, I delivered reasons for judgment and made orders in relation to the involvement of the husband in this matter, for want of a better description.  Mr Wells has indicated that he would like to consider that issue and it may be that his client instructs him to make a further application about it, and if so, a listing for that application can be arranged administratively through my associate. 

I certify that the preceding 5 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 17 June 2009.

Associate