Freer and Freer and Ors (No 5)

[2009] FamCA 1225

FAMILY COURT OF AUSTRALIA

FREER & FREER AND ORS (NO. 5) [2009] FamCA 1225

FAMILY LAW – PRACTICE AND PROCEDURE

APPLICANT: Ms Freer

FIRST RESPONDENT: Mr Freer

TRUSTEE IN BANKRUPTCY: Mr Smith

INTERVENOR: Mr Rickards

FILE NUMBER: ADF 1629 of 2009

DATE DELIVERED: 25 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Strickland J

HEARING DATE: 25 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Lynch Meyer

COUNSEL FOR THE RESPONDENT: Mr Jordan

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 further consideration of the Application in a Case filed by the wife on 25 August 2009 and the Application in a Case filed by the intervener Mr Rickards on 14 September 2009 be adjourned to 2:15pm on 9 October 2009.

2. That the husband pay to the trust account of the wife’s solicitors on behalf of the wife the sum of FOUR HUNDRED AND FIFTY DOLLARS [$450.00] for costs thrown away today as a result of the adjournment such amount to be paid by 4:00pm on 8 October 2009.

3. That the time for the husband to file and serve his Amended Response, his updated affidavit of evidence in chief, and his updated financial statement be extended to 4:00pm on 2 October 2009.

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 SYDNEY

FILE NUMBER: ADF 1629 of 2009

MS FREER

Applicant

And

MR FREER

Respondent

And

MR SMITH

Trustee in Bankruptcy

And

MR RICKARDS

Intervener

EX TEMPORE REASONS

1. Today was the adjourned hearing of the wife’s Application in a Case filed on 24 August 2009 and also the adjourned hearing of the Application in a Case filed by Mr Rickards, the intervenor, on 14 September 2009.

2. Perhaps if I deal with the second application first, that is an application seeking that the wife make further and better discovery of certain documents.  That application is pressed.  There is now an affidavit on file from the wife in response to that and the application is opposed. 

3. I listed the matter today for mention if I was not able to get to it in a substantive way, and unfortunately that has been the case, and I need to now further adjourn that application and set aside some time to hear it.  I propose to list that application for hearing at 2:15pm on 9 October 2009.

4. With the first application that I have mentioned, that is an application, as Mr Berman has indicated today, for partial property settlement to, in effect, enable the wife to have access to funds to secure her legal representation for the purpose of the forthcoming trial. 

5. It is an application which is opposed by the husband.  I adjourned the matter to today to give the husband an opportunity to file further affidavit material in relation to certain liabilities that he alleged in his initial affidavit that he had and which, prima facie, if accepted would have meant that there was, in effect, no funds available readily to meet the wife’s claim.

6. The husband did take up the opportunity I gave to him and he has filed an affidavit on 24 September which further addresses this issue.  I note though that there are to be further documents provided with that affidavit, and in particular a bill of costs from Mr Rickards and also a letter from Mr Rickards in relation to an alleged borrowing from him in the total sum of $25,000. Both of those documents are now available, but unfortunately, I am not in a position to physically see them because I am sitting in Sydney and conducting this hearing by way of telephone link with the Adelaide Registry. 

7. In any event, I have heard further submissions about this matter today and I have raised other concerns I have about the state of the evidence. As a result of that Mr Jordan has now made an application to further adjourn this application to enable further affidavit material to be filed.

8. Mr Berman opposes that application.  My position about it is that having raised it myself and raised the concern about the lack of some particular evidence before me on the husband’s part I propose to grant the adjournment but on the basis of an order for costs because the husband had the opportunity to put this further information on file, and he failed to. 

9. I propose to adjourn this application to the same date that I have adjourned the other application, namely 2:15pm on 9 October.  In terms of the time for the husband to file any further affidavit material, I will give him until the end of next week to attend to that.

10. I indicate that what I would propose to do is that given the issues on which the husband may provide further affidavit material is a discrete one, in a sense, I would be anticipating receiving that further evidence if filed, hearing any further submissions in relation to it, but then delivering judgment about this matter on that day. 

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 25 September 2009.

Associate