Kruger and Zaio

[2008] FamCA 615

FAMILY COURT OF AUSTRALIA

KRUGER & ZAIO [2008] FamCA 615

FAMILY LAW – PROCEDURE – Adjournment

APPLICANT: Ms Kruger

RESPONDENT: Mr Zaio

FILE NUMBER: MLC 6106 of 2008

DATE DELIVERED: 1 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 1 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K.F. Nicholson

SOLICITOR FOR THE APPLICANT: Richard Calley

COUNSEL FOR THE RESPONDENT: Mr J.R. Love

SOLICITOR FOR THE RESPONDENT: Australian Legal Advisory Centre

Orders

1. That all existing applications shall be adjourned to the Senior Registrar’s Long Duty List at 10.00am on 17 September 2008 and that there shall be a telephone mention before the Senior Registrar at 10.00am on 10 September 2008.

2. That the parties shall file and serve any subpoenas by 8 August 2008 returnable in the Registrar’s Subpoena List at 9.30am on 9 September 2008.

3. That each party shall file and serve an Outline of Case and Minutes of Orders sought by 4.00pm on 15 September 2008.

4. That until further order the husband shall be by  himself, his servants or agents restrained from:

   (a)Taking any steps whatsoever to sell, close, dispose of, or hinder the operations of the business in any way; and

   (b)Selling, disposing of or in any way dealing with assets of the parties including the assets of the company P Pty Ltd save in the normal course of business operations without the express written consent of the wife to do so.

5. That by no later than 4.00pm on 8 September 2008 the husband shall provide to the wife the following:

   (a)A record of all income and outgoings of the business D Business and the company P Pty Ltd; and

   (b)All bank from 1 April 2008 in his name, the business name and/or the company name from 1 April 2008

   and that he shall file and serve a Response, Statement of Financial Circumstances and any further affidavit material upon which he seeks to rely.

6. That by no later than 5.00pm on 8 September 2008 the wife shall provide to the husband all bank statements for accounts in her name, from 1 April 2008.

7. The reasons given by me this day for an adjournment in accordance with the husband’s request shall be transcribed and retained on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6106 of 2008

MS KRUGER

Applicant

And

MR ZAIO

Respondent

REASONS FOR JUDGMENT

1. The wife has brought an application in this case for lump sum and periodic spousal maintenance, maintenance for a child who is not a child of this relationship, or in the alternative, sole use of the former matrimonial home and lower maintenance payments.  Subsequently, she has made an alternative application to the effect that she be permitted to run a restaurant business that the parties had while they were together.

2. The parties separated earlier this year, in April.  Since that time, it is the husband who has remained in the restaurant business and it is the husband who has remained in the former matrimonial home, paying a high mortgage repayment of $1000 per week.

3. I sympathise with the wife’s frustration in wanting this case to get on.  She came to court a week ago.  The case did not go ahead, and now the husband has sought an adjournment.  That said, I think there is a legitimate basis for an adjournment.  He attaches medical evidence to his affidavit.  It is not challenged that he suffered a heart attack on 17 July, that he was taken by ambulance to the Alfred Hospital, that he was diagnosed as having a blocked artery, and that the doctors performed a procedure whereby they placed a stent in the artery.  There is a medical certificate to the effect that he is unfit for work until 31 August 2008.  There is a suggestion he will be on lighter duties for a few months after that or that he may not work at all in that period.

4. It is irresistible that the case should be adjourned to enable him to get over this serious heart issue, and to be able to instruct his solicitors.  To that end, he will need probably about six weeks. 

5. I had contemplated some means of getting some monies to the wife in the meantime because I would be very concerned long term if one party has access to funds and the other does not.  Unfortunately, given the diametrically opposed versions of the parties as to what funds are available, and as to what roles each have taken in the business and so on, it is impossible for me to make any sensible orders before the basic material that is sought is obtained.  In this respect, I want the wife to understand that any orders that are made are likely to be backdated, so that it is not that she is just left without support during this time but the arrangements, overall inadequate as they may be, whereby she is dependent on family, will just have to continue unfortunately in the genuine circumstances of the husband's ill health, just for the next period of about six weeks.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  1 August 2008