Merrick and Merrick

[2017] FamCA 1031

FAMILY COURT OF AUSTRALIA

MERRICK & MERRICK [2017] FamCA 1031

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the Applicant made an oral application for an adjournment at the conclusion of the first day of the final hearing – Where the application is opposed – Application refused.

Family Law Act 1975 (Cth)

APPLICANT: Ms Merrick

RESPONDENT: Mr Merrick

FILE NUMBER: PAC 1983 of 2008

DATE DELIVERED: 30 November 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Barbour, Anthony Black Family Law Services

Orders

IT IS ORDERED THAT

1. The oral application made by the Applicant for an adjournment of the final hearing of this matter is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: PAC 1983 of 2008

Ms Merrick

Applicant

And

Mr Merrick

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an application for an adjournment of the hearing.  That application is prosecuted by Ms Merrick, the Applicant in these proceedings.  I intend to refuse that application. 

2. I do so for the following reasons. 

3. In responding in proceedings in the District Court which are currently on foot and which have been commenced by the Commonwealth Bank of Australia, by which the bank seeks possession of real property and repayment of outstanding funds advanced by way of loan and secured by mortgage registered over that property, Ms Merrick seeks to set aside the mortgage to the bank.  This secures funds in an amount of, I think, $560,000.00, initially advanced and lent to the parties, which were applied to the purchase of real property in Ms Merrick’s name – property in which she and the children of the marriage currently live.

4. There is no dispute between the parties that the Commonwealth Bank provided those funds, nor that they were applied to the purchase of the property.  Mr and Ms Merrick are joint borrowers of those funds from the Commonwealth Bank.  As I have said, the Commonwealth Bank commenced proceedings (I think initially in the Supreme Court) which are now in the District Court seeking possession of that property and repayment of the funds advanced and unpaid interest accruing on the same.

5. On the material before me, as at 12 September 2017, the bank’s claim was for the amount of $565,104.00 (rounded) and interest accruing at $69.98 per day from then and costs. 

6. The bank has obtained a default judgment against Mr Merrick already.  It unsuccessfully applied for summary judgment against Ms Merrick after she filed a defence asserting (broadly summarised) fraud, conspiracy and that the bank failed to appropriately deal with and assess the circumstances associated with the application for funds.

7. Whilst, as I understand it, orders of the District Court permitted Ms Merrick to re-plead her defence, her information from the bar table is to the effect that that has not yet been done;  it seems she has recently engaged legal representatives, using at least some of the funds I understand to have been recently provided to her by Mr Merrick, in discharge of his outstanding arrears of child support, for that purpose.

8. The application for an adjournment of the hearing comes at the end of the first day of the trial.  It is on the basis of Ms Merrick’s assertion that the proper course is for this hearing to be adjourned to follow the resolution of the District Court proceedings. 

9. The application for an adjournment of the hearing was opposed by Ms Barbour, who appears on behalf of the husband, Mr Merrick.

10. The trial has been set now for some time.  There have been, recently, two compliance hearings before the Registrar.  It is apparent, I think, that there has been substantial noncompliance with the Orders and directions made to ensure that the matter proceed for orderly hearing before me commencing yesterday.

11. As I noted at least one of the previous appearances of these parties before me, the nature of the proceedings themselves and the fact that Ms Merrick, at least, appears on her own behalf has meant that I have accorded to the parties significant leniency vis-à-vis noncompliance.  I have done so because I have been focused upon bringing to a conclusion these proceedings, in which they have been engaged for a not-insignificant period of time.

12. Reference to the transcript of at least, I think, the last substantive appearance before me prior to the trial will reveal that I have made comments to the parties, on occasion, that my intention was not to insist upon strict compliance;  that I foresaw the possibility that, in fact, occurred yesterday, namely that people would be providing material on that day;  and that my intention was to do my very best to ensure that I can conclude the hearing. 

13. Of course, all of these things would not prevent a decision adjourning the trial, if it were otherwise justified. 

14. I am not persuaded, however, in the circumstances before me, that that is the case.

15. It is unnecessary at this time – for the purpose of these short reasons justifying my decision to refuse the application to adjourn the hearing – to descend into a detailed discussion of Ms Merrick’s evidence and the other evidence before me. 

16. Relevant reference to it was made by me during the course of discourse with Ms Merrick yesterday, in the course of my receiving her submissions in support of the application for an adjournment. 

17. I adopt the comments I have made yesterday and include them as part of the reasoning underpinning the decision I have made to refuse the application for an adjournment.

18. In addition, I have determined that, whatever the result of Ms Merrick’s application against the bank, the reality for the parties is that there is now a judgment debt in favour of the bank against Mr Merrick.  That will remain.  It arises out of circumstances associated with the marriage, namely a joint decision to purchase the property, and at least at this stage should be regarded, in my view, as a “matrimonial debt”. 

19. Prima facie, at this point of the trial, there is nothing so far established to persuade me, at this stage, that it would be just and equitable for Mr Merrick to be left to bear the entirety of the responsibility for repayment of that debt, in circumstances where it is uncontested that Ms Merrick and the children have lived in the former matrimonial home since the parties separated towards the start of 2014 and where it is accepted that Ms Merrick has withdrawn no less than about $70,000.00 from the parties’ joint account (however that account is described) which is associated with the loan accounts associated with the borrowings secured by mortgage at the time of separation. 

20. On the circumstances before me, it is also clear, at this stage, that it has not been established that there exists other property from which Mr Merrick’s indebtedness by way of judgment debt to the Commonwealth Bank could be satisfied, other than via the sale of the former matrimonial home. 

21. In the event that Ms Merrick is able to establish, via cross-examination or other evidence that I am yet to receive, a proper basis for the proposition that justice and equity requires the making of orders that Mr Merrick bear the sole responsibility for the debt to the Commonwealth Bank arising from borrowings applied to the purchase of the home (for the benefit, initially, of the parties, prior to their separation and a benefit enjoyed by Ms Merrick and the children of the marriage since separation) then it is, of course, open to her to renew her application for an adjournment of the trial at that time. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 November 2017.

Associate: 

Date:              30 November 2017