Karbines and Karbines (No. 2)

[2007] FamCA 442

FAMILY COURT OF AUSTRALIA

KARBINES & KARBINES (NO. 2) [2007] FamCA 442

FAMILY LAW - PROPERTY – Interim Orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Karbines

RESPONDENT: Mrs Karbines

FILE NUMBER: MLF 2479 of 2005

DATE DELIVERED: 4 May 2007

PLACE DELIVERED: Mount Gambier Judicial Circuit Sittings

JUDGMENT OF: Dawe J

HEARING DATE: 4 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Maddens Lawyer

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as  Karbines and Karbines

Orders

1. Paragraphs 2, 3, 4, 5, 6, 8 and 9 of the husband’s Form 2 Application filed on the 4 May 2007 are all matters which relate to final orders.

1. Paragraphs 1 and 7 of the husband’s Form 2 Application filed on the 4 May 2007 are dismissed.

1. The husband to file and serve within twenty one [21] days from today an affidavit setting out the debts which are due by the trust or any of the companies in which either the husband or wife have an interest annexing to that affidavit all source documentary evidence within his power and control relating to those debts.

1. The trial is adjourned part-heard before The Honourable Justice Dawe to a date to be advised (possibly the 20 August 2007) sitting in the Mt Gambier Courthouse, allowing 5 days.

AND IT IS NOTED the matter may be called on for further directions before The Honourable Justice Dawe with parties to be heard by telephone link.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2479  of 2005

Mr Karbines

Applicant

And

Mrs Karbines

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. There are two interim applications of the husband.  The first is phrased by the husband as:

   “That the wife gives me the approval to refinance the [Y property] and the [N property].  This eliminates the bank from the equation.”

   In support of that application, the husband has given evidence and produced exhibit 32, which is a letter from M Home Loans dated 30 April 2007 which confirms that L Funding are willing to grant conditional approvals for a commercial loan of $270,000 secured as first mortgage over the Y property and a home loan of $480,000 secured as a first mortgage over the N Property.  The conditions attached on the second page of the letter relating to formal approval include:

   i)“(i)     A satisfactory evaluation on each property offered as security;

   (ii)Discharge of [the wife’s] interest in the property offered as security;

   (iii)Agreement by [the wife] and the court that property settlement is able to be reached;

   (iv)Full clearance of a Westpac credit and an American Express credit card default.”

   It continues:

   “All financial institutions approached are of the same opinion:  that this application will be able to meet formal approval only when the property settlement has reached agreement.”

2. The wife gives oral evidence, by way of hearsay evidence from a conversation he has had with the financial institution, that all the financial institution means by the phrases "completing the property settlement" is "as long as the court is made aware of the finance offered".  I allow that hearsay evidence in because it is an interim application and not part of the final property settlement proceedings between the parties.  Nonetheless, even if that is the evidence, it clearly contradicts two of the parts in the letter which seem to refer to a conclusion of the property settlement proceedings between the parties.

3. However, the major stumbling block to any refinancing (as the husband seeks) is the condition that the wife be “removed from the [N]” property, which is currently registered in the joint names of the parties.  The property settlement proceedings before the court clearly involve a contest that has long existed with the wife wishing to retain as part of her property settlement the N former matrimonial home and the husband also wishing to have final ownership of that property.

4. The trial is now before me. The husband has only commenced giving his evidence‑in‑chief. It is not appropriate, in view of the matters in dispute between the parties, to make any order which would alter the ownership of the former matrimonial home until such time as I have heard all of the facts and am able to reach a proper conclusion in accordance with the Family Law Act. I therefore dismiss the husband's interim application in paragraph 1.

5. Paragraph 7 of the husband's application is:

   “That the husband is reimbursed for the rent for any of his entitlement of the rental income from the [O] property and also in regard to the [N] property for the last two years, as he has not been allowed to reside in either house, for which there is a form 2 left open for the court.”

   Proceedings have previously been instituted by the husband seeking to bring into account the fact that the wife is now occupying the former matrimonial home at N and has access to the income received from the O property.  The husband asserts that this is not fair and that he has been forced to reside in the warehouses at either S or M.

6. The husband has continued to operate the businesses previously carried on prior to the separation and has continued to have the benefit of those businesses.  There are many matters to be determined by the final property settlement proceedings after all the facts have been determined and the law applied to the facts. 

7. It is inappropriate to make any order as sought by the husband in paragraph 7, pending the resolution of those matters in dispute and final orders can be made.  I therefore dismiss paragraph 7 of the husband's application.

8. The other paragraphs of the husband's application are conceded by him to be matters which are appropriately dealt with at the conclusion of the proceedings by way of final orders.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  17 May 2007