Porter and Porter and Ors

[2009] FamCA 1231

FAMILY COURT OF AUSTRALIA

PORTER & PORTER AND ORS [2009] FamCA 1231

FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Where the Wife’s statements of claim have been struck out – Where the Wife failed to re-plead her case – Where the Wife’s case at its highest does not give rise to action as against the Second and Third Respondents – Application for summary dismissal acceded to

Family Law Rules 2004 (Cth), rules 10.12 and 10.14

Giumelli v Giumelli (1999) 161 ALR 473
Muschinski v Dodds (1985) 160 CLR 583

APPLICANT: Mr Porter

RESPONDENT: Ms Porter

SECOND AND THIRD RESPONDENTS: Mr and Mrs Porter (Snr)

FILE NUMBER: BRC 4788 of 2008

DATE DELIVERED: 14 December 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 7 December 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr O’Donnell of Egan Simpson appeared for the Applicant Husband

COUNSEL FOR THE RESPONDENT: Mr Hamwood of Counsel appeared for the Respondent Wife

SOLICITOR FOR THE RESPONDENT: Reaburn Solicitors

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: Ms Carew of Counsel appeared for the Second and Third Respondents

SOLICITOR FOR THE RESPONDENT: John Nagel & Co

Orders

1. The Wife’s claim against the second and third respondents’ as detailed in her response filed 5 February 2009 is summarily dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4788  of 2008

MR PORTER

Applicant

And

MS PORTER

Respondent

MR and MRS PORTER (SNR)

Second and Third Respondents

REASONS FOR JUDGMENT

1. Mr and Mrs Porter (Snr), the Second and Third Respondents in these proceedings are the registered owners of a farm in the northern rivers region of New South Wales which they acquired in 1993.

2. At all times since then this property has been occupied by their son, Mr Porter, who is the Applicant in the substantive proceedings before the Court.

3. The Applicant husband and the Respondent, the wife, commenced cohabitation in late 2000.  They married in July 2004.

4. At all times throughout the relationship they remained living on the farm.

5. Separation occurred in February 2008 when the wife left the property with the party’s two children aged 7 and 6.

6. In about May 2008 the Husband instituted proceedings limited to children’s issues only.  By a response document filed on 5 February 2009 the Wife sought orders in the following terms:

   “1.      As to the Applicant

   (a)An order that he pay the Applicant such amount by way of property settlement as to the Court may seem meet;

   (b)Costs.

   2.As against the Second and Third Respondents:

   (a)A declaration that the Second and Third Respondents hold their interest in the property situate at and known as [the Northern Rivers farm] in the State of New South Wales (the “[farm] property”) property on trust for the Applicant and the First Respondent jointly;

   (b)An order that the Second and Third Respondents do…