Minzer and Hakin and Anor

[2014] FamCA 735

FAMILY COURT OF AUSTRALIA

MINZER & HAKIN AND ANOR [2014] FamCA 735

FAMILY LAW – PRACTICE AND PROCEDURE – Adjourned to Senior Registrar’s list for determination of husband’s application for sole use and occupation of former matrimonial home

APPLICANT: Mr Minzer

RESPONDENT: Ms Hakin

SECOND RESPONDENT: P Pty Ltd

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4799 of 2014

DATE DELIVERED: 26 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 26 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Shiff & Company

COUNSEL FOR THE 1^ST RESPONDENT: Mr McIvor

SOLICITOR FOR THE 1^ST RESPONDENT: Tasiopoulos Lambros & Co

COUNSEL FOR THE 2^ND RESPONDENT: Ms Williams

SOLICITOR FOR THE 2^ND RESPONDENT: Halperin & Co Pty Ltd

Orders

BY CONSENT IT IS ORDERED THAT:

1.The wife have leave to withdraw her application for the husband to be assessed by an appropriately qualified person as to his capacity to conduct this case and whether he is a person with a disability.

2.The matter be listed before Senior Registrar FitzGibbon on 16 September 2014 at 10.00 am for the hearing of the application NOTING THAT the parties agree that the relief sought is within the jurisdiction of the Senior Registrar.

3.The husband have leave to file and serve the Application in a Case and supporting affidavit this day (“the application”).

4.The wife file and serve any response to the application and a supporting affidavit and other evidence upon which she relies by not later than 10 September 2014.

5.All parties costs for this day be reserved.

IT IS ORDERED THAT:

6.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and be made available to the parties.

AND IT IS NOTED that the mediation with Mr Melilli of Counsel remains scheduled for 12 September 2014 and as soon after the conclusion of the mediation as possible, the parties will advise the Assistant to Senior Registrar FitzGibbon – email – … – whether the application will require Court time for a contested hearing on 16 September 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Minzer & Hakin and Anor 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 4799 of 2014

Mr Minzer

Applicant

And

Ms Hakin

Respondent

REASONS FOR JUDGMENT

ex-tempore

1. When this matter was previously in the judicial duty list it was contended by the wife that there ought be consideration to the appointment of a case guardian for the husband who is 80 years old, has previously been in hospital care and assessed by Professor B, a neuropsychiatrist.  The purpose of today was to receive a further report from Professor B. That report is now on the court file.  Upon receiving that report the wife has determined not to proceed with any application for the appointment of a case guardian. However, the husband seeks use and occupation of the former matrimonial home which, I understand, is unoccupied.

2. This is the second marriage for the parties.  It is a marriage of 20 years duration.  They each have adult children from previous relationships.  The husband was hospitalised recently and upon his discharge from hospital was not welcome to return to the former matrimonial home which is a three bedroom dwelling in C Street, Suburb D.  He went to stay with one of his adult daughters who lives in a one bedroom dwelling in Suburb S.  That is said not to be convenient or appropriate accommodation for him. 

3. At the time the wife was residing in the former matrimonial home at C Street.  It appears or the husband believes that the wife has since vacated that property and it is vacant.  It is not tenanted. 

   RECORDED   :   NOT TRANSCRIBED

4. I am advised from the bar table that there will be no steps taken to have the property tenanted prior to the return date which I have allocated to the husband’s application for sole use and occupation before the Senior Registrar. 

5. As I have said the parties resided together for 20 years.  The property at C Street is registered as to a two-third interest to the wife and to the P Family Trust as joint tenants.  The remaining one-third interest is registered in the name of the husband. 

6. P Family Trust is a trust of the wife’s family.  The trustee of the trust is P Pty Ltd.  The appointors of the trust are the wife’s adult children, Mr E and Ms F. 

7. I am informed from the bar table that the ownership of two-thirds to the wife and the trust and one third to the husband equates to the initial capital contribution to the acquisition of the property which was bought approximately 10 years ago. 

8. The wife is in receipt of an income from the Hakin Family Trust and has been historically.  The trustee of the Hakin Family Trust is G Pty Ltd and the appointors of the Hakin Family Trust are the wife’s adult children, Mr E and Ms F. 

9. In the last financial year the wife received approximately $21,000 by way of income from the Hakin Family Trust.  Historically that income has been significantly higher.  In the preceding financial year it was some $200,000, and my recollection from hearing of the matter in the judicial duty list was that it had been in the vicinity of some hundreds of thousands of dollars in previous years.  The downturn in income for the wife is said to be attributable to a reduction in the gross income of the Hakin Family Trust whose assets include the three shops in H Street, Suburb J formerly occupied by Company K. 

10. The parties have sensibly agreed on a timetable whereby the husband will today file an application in a case and his supporting affidavit in which he seeks orders that he be permitted to return to reside at and have sole use of the C Street property, and that he have sole use and occupation of that property until further order. 

11. The wife is to file and serve any response to that application in a case by not later than 10 September 2014, and I have listed the matter before the Senior Registrar on 16 September 2014 at 10 am.  The parties understand that they should be ready to proceed at 10 am if the Senior Registrar is ready to take them. 

12. I note that the parties have also arranged a private mediation to be convened by Mr Melilli of counsel on 12 September 2014.  I will provide that the parties notify the Senior Registrar’s Assistant, Ms L at …, at the conclusion of the mediation as to whether they will require court time for a defended hearing on this interim issue on 16 September or whether it has resolved on that day. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 26 August 2014.

Associate: 

Date: