Holstad and Weissmuller

[2013] FamCA 1132

FAMILY COURT OF AUSTRALIA

HOLSTAD & WEISSMULLER [2013] FamCA 1132

FAMILY LAW – PRACTICE AND PROCEDURE – Where application for adjournment sought – Where application granted – Where parties also arrived at consent orders.

Family Law Act 1975 (Cth)
Real Property Act1900 (NSW) s 57(2)(b)

APPLICANT: Ms Holstad

RESPONDENT: Mr Weissmuller

FILE NUMBER: SYC 424 of 2013

DATE DELIVERED: 25 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 25 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Paltos Briggs Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Paraska

SOLICITOR FOR THE RESPONDENT: Branston Neville

Orders

1. That I hereby adjourn the matter this day.

2. That by consent, orders are made in accordance with the handwritten document headed “Minute of Orders” initialled by me and dated today, set out herein:

   1.That these proceedings be adjourned to 10 February 2014 on the application of the husband.

   2.That the husband pay the wife’s costs of and incidental to the appearances on 4 November 2013 and 25 November 2013 as agreed or taxed on a solicitor/client basis.

   3.That until further Order the wife have exclusive occupation of the home at B Street, Suburb C.

   4.That until further Order the orders of 27 May 2013 be varied for the purposes of facilitating the payment of any arrears and continuing instalments of mortgage required for the property at B Street, Suburb C.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holstad & Weissmuller 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 SYDNEY

FILE NUMBER: SYC 424 of 2013

Ms Holstad

Applicant

And

Mr Weissmuller

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. In this matter the applicant wife seeks the continuation of an order for sole occupation of the former matrimonial home and an order that the respondent husband pay the regular outgoings pursuant to the mortgage on that property. In that respect it is common ground that the mortgagee has served a notice under s 57(2)(b) of the Real Property Act 1900 (NSW) presumably relying on defaults on payment of the mortgage and as a precursor to taking possession for the purpose of selling the property.

3. The husband seeks an adjournment of this matter because he is in Country D and according to the affidavit sworn by his solicitor he has told his solicitor that he has only been able to source enough work to meet his living expenses and he is trying to get enough money together to return permanently to Australia.

4. The husband’s solicitor has had great difficulty communicating with the husband.  He had the benefit of a brief conversation on 28 October 2013 and a further conversation on 21 November 2013.  The husband confirmed he received the court orders forwarded by his solicitor.  His solicitor requested executed copies of an affidavit and an amended financial statement in support of his application in a case.  He was advised that it would take up to three weeks for that to be done by the husband.

5. The matter first came before the court on 9 September 2013 when Justice Le Poer Trench ordered that up until 4 November 2013 the wife have occupation of the matrimonial home at B Street, Suburb C (‘the Suburb C property’) to the exclusion of the husband.  His Honour directed that on or before 28 October the husband file and serve an amended response together with any affidavit or financial statement upon which he would seek to rely in response to that application.

6. The matter came before Justice Rees on 4 November 2013 when her Honour stood the matter over to today noting that the husband’s material was not filed in accordance with the directions of Justice Le Poer Trench.  

7. Her Honour continued the order for sole occupation of the former matrimonial home until today.  The position is thus despite there being two opportunities for the preparation of affidavits the best that the husband can offer is that they will hopefully be here in three days.  The evidence of the respondent husband in support of his adjournment is not at all strong.  On the other hand there is a sum of money presently sitting in a controlled money account representing the proceeds of sale of a previous property.  In support of the application for an adjournment the respondent consents to those funds being drawn down to enable the mortgage to be repaid pending any adjournment and for the wife to continue in sole occupation of the property at Suburb C. 

8. It is true, as Mr Richards points out, that, if that is the only source of assets, that would diminish the pool but this adjournment will be for a fairly short period of time.

Conclusion

1. I raised the issue of an order for costs being made as a condition of the agreement and as I understood it, the wife’s submissions were not to oppose that course.

2. Upon the basis that the orders of Justice Rees in relation to the matrimonial home are continued and that there is a consent order for the payment of the mortgage and on the basis that the husband will pay the wife’s costs of today forthwith as agreed or assessed, I propose to adjourn the matter. 

3. On 4 November 2013 her Honour Justice Rees reserved the costs of that application. Given that there is now another adjournment being granted and almost on the identical grounds it seems to be appropriate that the costs order shall include those costs as well. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 25 November 2013.

Legal Associate: 

Date:  11 June 2014