Harrison and Harrison and Ors

[2009] FamCA 313

FAMILY COURT OF AUSTRALIA

HARRISON & HARRISON AND ORS [2009] FamCA 313

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

APPLICANT: Ms Harrison

RESPONDENT: Mr Harrison

SECOND RESPONDENT: N Harrison

INTERVENOR: L Harrison

FILE NUMBER: MLC 7100 of 2007

DATE DELIVERED: 20 April 2009

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 20 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Phelan

SOLICITOR FOR THE APPLICANT: DeGraaf & Birkett

COUNSEL FOR THE RESPONDENT: Mr Cantwell

SOLICITOR FOR THE RESPONDENT: John Guthrie

COUNSEL FOR THE INTERVENOR	Mr Thompson
SOLICITOR FOR THE INTERVENOR	Williams Winter

Orders

IT IS ORDERED

1. That the property at Y, being Volume … Folio … shall be valued and the cost of such valuation shall be shared equally by the applicant, first respondent, second respondent and the intervenor.

BY CONSENT

1. That the intervenor and the second respondent shall within 14 days provide copies of all documentation produced in respect of any alleged loss or damage suffered or claimed by them or the Partnership in respect of the dairy herd.

2. That the intervenor and the second respondent shall comply with Orders 4 and 5 of the Application in a Case filed by the applicant on 3 April 2009.

UNOPPOSED

1. That N HARRISON shall be joined as a respondent to these proceedings and she shall file and serve a Notice of Address for Service within 14 days.

2. That the time for filing trial documents as set out in paragraph 11 of the orders of 27 January 2009 shall be extended to 29 May 2009.

BY CONSENT

1. That the intervenors shall be excused from Compliance with paragraph 13 of the orders made on 27 January 2009.

2. That liberty to apply shall be reserved.

3. That the costs of all parties of this day shall be reserved.

4. That the court directs that a transcript of the reasons for judgment shall be ordered and placed on the court file and made available to all parties.

5. That all interim applications shall otherwise be dismissed.

IT IS NOTED

1. That the intervenor and N Harrison allege that the wife has no interest in the Y land referred to in paragraph 1 hereof

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7100 of 2007

MS HARRISON

Applicant

And

MR HARRISON

Respondent

N HARRISON

Second Respondent

L HARRISON

Intervenor

REASONS FOR JUDGMENT 

1. This is a case in Young J's docket.  It is listed for final hearing before him on 29 June 2009.  His Honour is unavailable today and so the matter has come before me. 

2. There are three applications:  the application of the wife, the application of the husband and the application of the intervenor.  Each application was filed on 3 April 2009.  The applications request orders for various things.  Some are no longer relevant.  Some have been agreed. But there were several matters I am asked to determine.

3. The first related to an extension of time for trial documents.  They were due by 6 April.  Registrar Riddiford made the order for those documents to be filed when the matter was before him on 27 January.  No party has complied. 

4. The wife seeks an extension of time to mid-May.  The husband seeks an extension of time to early June.  The intervenor has sought an extension of time to 22 June, that is, just one week before the due trial date.  The intervenor's material is contained in the affidavit of Ms A, filed 3 April 2009, and in paragraphs 6, 7 and 8 of Mr L Harrison’s affidavit filed today.

5. The upshot of that material is the intervenor's claim that he has been absorbed caring for cattle who received a batch of poor feed, on 11 January 2009.  That led to round-the-clock care of the herd for some time.  In addition, on 12 March 2009, his wife fell ill with gall stones and a subsequent infection and she is currently awaiting surgery.  His solicitor had sought an extension to 18 May.  Mr Harrison has now sought that it be extended to 22 June because of changes in when his wife's surgery is to take place.

6. I am not satisfied there is a basis for an extension to 22 June.  In essence, the intervenor’s argument is that things have been very difficult and it has been very difficult to prepare material.  But, many months have already passed since the order was made for the material to be prepared.  Without any independent medical evidence or some other compelling evidence, if there is an extension until the end of May, the party will have had many months for the preparation of material.  There will be a fair balance between giving an extension of time and having the trial date preserved.  I will ask the parties to write that into the orders that they present to me, that is, that all the material be filed by the end of May.  

7. The other contentious issue related to the valuation of what is described as the “third block” of land in the C area.  Two have already been valued, but the third block is in the name of the intervenor and his wife.  It contains the dairy and a house.  The argument put by counsel for the intervenor is that the wife has failed to make out any prima facie case that the land is relevant for the purposes of this case, it being submitted that the wife makes no claim that she made any financial contribution to the block.  That is supported by counsel for the husband.

8. I am satisfied that the block should be valued.  I understand that the relevant mortgages cover all blocks, as do various market facilities, and that tax returns of the business also refer to all three blocks.  The third block seems to be sufficiently relevant that his Honour could not proceed to hear the trial without having that material available to him.

9. I am satisfied that, at this stage, all four parties should contribute to the cost of the valuation, and it should also be prepared by the end of May.  If his Honour has any different view as to the cost of that report, he can make adjustments at the end of the final hearing.

10. Ultimately they were the only contentious matters left to me.  There was another matter about whether the intervenor Mr L Harrison’s wife is in fact also an intervenor.  It seems there was a shared expectation that she had been joined as a party, but that in fact has not occurred.  So although there is no consent to that now occurring, there is also no opposition.  Given that the partnership is run by both the husband and wife and Mr L Harrison and his wife, it seems logical that she be properly joined.  Again, I will ask the parties to write that into the orders.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  20 April 2009