Hayes and Johns

[2013] FamCA 386

FAMILY COURT OF AUSTRALIA

HAYES & JOHNS [2013] FamCA 386

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hayes

RESPONDENT: Mr Johns

FILE NUMBER: MLC 6187 of 2010

DATE DELIVERED: 17 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 April 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hayes & Johns has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6187 of 2010

Ms Hayes

Applicant

And

Mr Johns

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Hayes for an adjournment of proceedings that would otherwise have been the final determination of the property dispute between she and her former husband both of whom are bankrupt and who are represented today by counsel representing the trustees of their respective estates. 

2. I propose to reject the application for the adjournment for the following reasons.

3. This case has a tortuous history in this Court.  It began in 2010 and the trustees in bankruptcy have been involved for a number of years.  Looking at the orders on the file as early as February 2011, questions of what was in dispute were being canvassed.  In December 2012, the case was set down for hearing on a final basis in the list commencing on 2 April and not to be listed before 17 April.  Other orders were made that are not relevant.

4. The application today by the respondent is relatively simple.  She says that she wishes to adjourn the proceedings because she has now filed in the Federal Magistrates Court, now the Federal Circuit Court an application to annul her bankruptcy.  It is a handwritten document supported by an affidavit which is very hard to follow because it is not in a narrative form. 

5. Counsel for the trustee of her estate points to the fact that there are two possible avenues but neither of them would ultimately mean that she would be in a position where she could justify being here to participate in a property dispute.

6. There is no guarantee that the application will succeed.  There is no indication of what would happen even if it did succeed.  There is no indication that any activity in relation to that particular problem has been active for the last few months, particularly, bearing in mind that I set the case down on 3 December 2012.

7. Whilst the ultimate objective is justice for everyone, the difficulty here is that I cannot see any merit in putting the case off.  The trustees of the bankrupt estate are entitled to work on the basis of the law as they see it.  The bankruptcy estate is no doubt in the process of being finalised.  And, as I understand it, there will be opposition to the application in the Federal Circuit Court in any event.

8. It seems to me that there is no utility in an adjournment and on that basis it is refused.

   RECORDED  :  NOT TRANSCRIBED

9. In relation to the proceedings as between the bankrupt estates, the same provisions under the Family Law Act apply as they apply to individuals.  The reality is the Court has to be satisfied before making an order that it is just and equitable to do so.  This is a very simple order and the trustees have put a lot of time and effort into working out what the solution is, and it makes a lot of sense to me that the matter is dealt with in this way.  It’s got a ring of commercial reality about it.  I’m satisfied that it is just and equitable to make the order.

10. In relation to the property which is vested property.  I will make final orders by consent of the two trustees. 

11. I will have that minute remain on the Court file.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 17 April 2013.

Associate: 

Date:  29 April 2013