Rogers and Rogers

[2008] FamCA 71

FAMILY COURT OF AUSTRALIA

ROGERS & ROGERS [2008] FamCA 71

FAMILY LAW – PROCEDURAL – PROPERTY - Injunctions

APPLICANT: Mr Rogers

RESPONDENT: Mrs Rogers

FILE NUMBER: ADC 1536 of 2007

DATE DELIVERED: 9 January 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 9 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms N.M. Hurley

SOLICITOR FOR THE RESPONDENT: Websters Lawyers

Orders

1. That each party be restrained and an injunction is hereby granted restraining each of them from:

   (a)making a bid at the auction of the property situated at H on … January 2008;

   (b)making a bid at the auction through a third party.

2. That the wife file and serve any application and supporting affidavit seeking orders as to open inspections and the auction of the said property by 4:00pm on 9 January 2008.

3. That the husband file and serve any response and supporting affidavit to the application filed by the wife by 4:00pm on 11 January 2008.

4. That further consideration of the foreshadowed Application in a Case to be filed by the wife today, the Application in a Case filed by the wife on 26 November 2007 and the Application in a Case filed by the husband on 28 November 2007 be adjourned to 9:30am on 14 January 2008.

5. That the costs application in relation to the proceedings dealt with by the Judicial Registrar be adjourned to a date to be fixed before the Judicial Registrar.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1536 of 2007

MR ROGERS

Applicant

And

MRS ROGERS

Respondent

EX TEMPORE REASONS

1. I have before me two applications, one by the wife filed on 26 November 2007, wherein she seeks orders by way of declaration that the proceedings instituted by the husband are vexatious, and the other by the husband of 28 November 2007, wherein he has made the same application in relation to the wife's proceedings.

2. Unfortunately I have not been able to deal with these applications this morning, one reason being that, although there is an affidavit of service on file, the wife's solicitor says it has not been received.  Thus the wife is not aware, she says, of the application being made by the husband and time needs to be allowed for the wife to provide instructions about that application.

3. In the course of the hearing today though, the wife's counsel raised matters in relation to the sale of a property.  There is no formal application before me at this point but I attempted to deal with the issues as best as I could.  The husband has indicated he consents to at least one order, which solves an apparent problem, and in relation to other orders foreshadowed, although he initially indicated he was not prepared to consent to them, he now appears to have changed his mind.  I have invited him to speak to either the wife's solicitor or counsel, or both, at the conclusion of this hearing to see if those matters can be sorted out. 

4. In the circumstances I am proceeding on the basis that there is a dispute.  It needs to be resolved quickly though because the auction of the property is set for January 2008 and the orders also relate to what happens at open inspections.  Thus I propose to hear this matter on Monday morning. 

5. In terms of the documents for that hearing, the wife has prepared an affidavit.  She will need to prepare an Application in a Case.  Thus I propose to order that those documents be filed and served today and I will give the husband until the end of the week to file responding documents if he is so disposed.  If he wants to consent to the orders, he can come along on Monday morning and I will make orders by consent. 

6. I want to also use Monday morning to progress the applications that I have referred to - namely, those filed on 26 November and 28 November - because those matters need to be dealt with.  They are serious applications and if I can deal with them on Monday morning I will.

7. The other matter that is before me is that the Judicial Registrar, on 29 November 2007, made orders and delivered reasons for judgment.  One of the orders he made was to reserve the question of the costs of the proceedings before him to today before me.  In my view, it would be far better if the Judicial Registrar hears any application for costs flowing from any decision he has made, and thus I propose to refer that matter back to the Judicial Registrar for an appropriate date to be given by his Honour in the near future.

I certify that the preceding
7 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland
the 9^th day of January 2008.

……………………………………….
Associate