Rooke & Benlow and Ors

[2007] FamCA 48

FAMILY COURT OF AUSTRALIA

ROOKE & BENLOW AND ORS [2007] FamCA 48

FAMILY LAW – ORDERS – ENFORCEMENT – Pre-trial hearing brought with notice – Orders made to join two further parties to the proceedings and leave to issue additional subpoenae – Comments as to "reality" of the requirement by wife to join the two additional respondents

Family Law Act 1975 (Cth)

HUSBAND: Mr Benlow

WIFE: Ms Rooke

1^ST RESPONDENT: Ms D Benlow

2^ND RESPONDENT: S Pty Ltd

3^RD RESPONDENT: H Pty Ltd

4^TH RESPONDENT: Ms Satsi

5^TH RESPONDENT: F Pty Ltd

6^TH RESPONDENT: J Pty Ltd

FILE NUMBER: DGF 2729 of 2001

DATE DELIVERED: 15 January 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 15 January 2007

REPRESENTATION

SOLICITOR FOR THE HUSBAND: In Person

SOLICITOR FOR THE WIFE:	Lander & Rogers
COUNSEL FOR THE WIFE:	Ms Blizzard
SOLICITOR FOR THE 1ST RESPONDENT:	Ms Nagle, Pat Nagle Solicitors

SOLICITOR FOR THE 2^ND, 3^RD & 4^TH

RESPONDENTS:

No Appearance

SOLICITOR FOR THE 5^TH & 6^TH

RESPONDENTS:

Mr Cloak, Billings Cloak Solicitors

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 2729 of 2001

MR BENLOW

Husband

And

MS ROOKE

Wife

And

MS D BENLOW

1^st Respondent

And

S PTY LTD

2^nd Respondent

And

H PTY LTD

3^rd Respondent

And

MS SATSI

4^th Respondent

And

F PTY LTD

5^th Respondent

And

J PTY LTD

6^th Respondent

REASONS FOR JUDGMENT

1. This matter comes before me by way of mention only.  The applicant wife is represented by Ms Blizzard and the respondent husband appears in person.  Ms Nagle appears for the first-named respondent.  The second and third-named respondents, namely S PTY LTD and H PTY LTD are not represented before me this day. The fourth-named respondent, MS SATSI, who is the husband's current wife, is also not before the court but the husband has addressed certain issues on her behalf.  Mr Cloak appears for F PTY LTD and J PTY LTD.

2. I have been assisted with a short explanation by Ms Blizzard as to the issues before the court for determination on 22 January 2007.  They are limited to the enforcement of an order made on 28 April 2006 by Watt J that the husband pay to the wife a lump sum of $111,002 by 31 May 2006.  That sum has not been paid.  There is also a collateral issue concerning costs for decision by the court.

3. Mr Cloak has addressed me helpfully on behalf of F PTY LTD and J PTY LTD who are unit holders in the H TRUST.  The other unit holder is M PTY LTD, as trustee of BENLOW FAMILY TRUST.  They are equal holders of the units within the Trust.  An asset of the trust included a development property which has been sold at arms length in December 2006, resulting in net proceeds of $373,562.76.

4. Mr Cloak explained that, in reality, there were further commitments to be disbursed from the proceeds, including GST estimated at $131,000 and further outstanding debts such as builders and the like of some $252,743.95.  That, per force simple arithmetic, appears to suggest a net loss in the development project.

5. I discussed with Ms Blizzard the necessity of having F PTY LTD and J PTY LTD before the court, and I am confident that discussions will take place between herself and Mr Cloak concerning that fact.  However, and for the sake of caution, it being the application of Mr Cloak in any event, I propose to join those two companies as parties to the proceedings.  Notwithstanding this, it is my ready expectation that every endeavour will be made by Ms Blizzard and Mr Cloak to discuss the issue and endeavour to resolve it in a realistic and sensible manner.

6. Ms Blizzard sought leave to issue subpoenas directed against Ms R, a bookkeeper for H PTY LTD, Mr A, accountant and Mr K, who is a director of J PTY LTD.  Given that there was no opposition to the issue of the subpoenae, I propose to order that leave be granted to issue subpoenae.  The material appears to be relevant and directed to a fact in issue before the court.

7. The husband also addressed me on an issue arising from the orders of Carter J, which he claims have not been complied with by the applicant wife.  Ms Blizzard asserted that all compliance has been undertaken pursuant to the orders of her Honour.  In the circumstances it is not appropriate for me to resolve that issue at this stage which can be agitated before the trial Judge who will hear the proceedings commencing 22 January 2007. 

8. However, I just observe for the benefit of the parties that there is a ready expectation on the part of any judge of this court that there be compliance with its orders.  This court is a superior court of record and compliance is central to the integrity of any order made by it.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Guest.

Associate

Date: 15 January 2007