SEEKER & SEEKER - [2012] FamCA 863

FAMILY COURT OF AUSTRALIA

SEEKER & SEEKER

[2012] FamCA 863

FAMILY LAW – PRACTICE AND PROCEDURE - leave be granted to institute proceedings for property settlement out of time. Trustee joined as a party

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Ms Seeker

RESPONDENT:	Mr Seeker
THIRD PARTY:	Trustee In Bankruptcy of the Estate of Mr Seeker

FILE NUMBER:

MLC

3529

2012

DATE DELIVERED:

11 September 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

11 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hamilton

SOLICITOR FOR THE APPLICANT:

Thexton Lawyers

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE THIRD PARTY:	Ms Hamilton
SOLICITOR FOR THE THIRD PARTY:	Thexton Lawyers

Ms Horwood

Jones King Lawyers

IT IS ORDERED THAT

Pursuant to s 44(3) of the Family Law Act 1975 (Cth) leave be granted to the wife to institute proceedings for property settlement out of time.
Mr D the Trustee of Bankruptcy of the Estate of Mr Seeker be joined as a party to these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seeker & Seeker 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 3529 of 2012

Ms Seeker

Applicant

And

Mr Seeker

Respondent

REASONS FOR JUDGMENT

In this matter the husband and the wife were divorced on 12 February 2009. The wife continues to live in the former matrimonial home at T Street, K Suburb, with the four children of the marriage. That property is in the joint names of the husband and the wife and is valued at approximately $540,000 and is subject to a mortgage to the Bank C of approximately $338,000. On 12 March 2009, the husband provided a Statement of Affairs to the Official Trustee in Bankruptcy which included his interest in the former matrimonial home. On 27 March 2009, a debtor’s petition was accepted by the Official Receiver in respect of the bankrupt estate of the husband.
On 16 March 2011, a third party was appointed as a trustee of the bankrupt estate of the husband pursuant to section 181A of the Bankruptcy Act 1966 (Cth), upon which the husband’s property, including his interest in the former matrimonial home, vested in the trustee. The property vested in the trustee will re‑vest in the husband six years from the date the husband provided his Statement of Affairs to the Official Trustee in Bankruptcy. It is the trustee’s intention to realise his interest in the former matrimonial home for the benefit of the creditors of the bankrupt’s estate, subject to any orders of this Court.
The trustee has lodged a caveat over the former matrimonial home. The wife seeks a property settlement, she says, pursuant to section 90SM of the Family Law Act 1975 (Cth). That application should be pursuant to section 79 and not section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SEEKER & SEEKER [2012] FamCA 863
Case: [2012] FamCA 863
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Seeker (the wife) sought leave to institute property settlement proceedings out of time against her former husband, Mr Seeker. The husband's Trustee in Bankruptcy was joined as a third party to the proceedings. The parties were divorced on 12 February 2009, and the husband's bankruptcy commenced on 27 March 2009, with his interest in the former matrimonial home vesting in the trustee.

The primary legal issues before the Court were whether to grant the wife leave to commence property settlement proceedings more than 12 months after the divorce order, and whether to join the Trustee in Bankruptcy as a party to the proceedings. The wife's application for property settlement was out of time under section 44(3) of the Family Law Act 1975 (Cth), which requires the Court to be satisfied that hardship would be caused to a party or child if leave were not granted. Additionally, section 79(11) of the Family Law Act mandates the joinder of a trustee in bankruptcy if a party is bankrupt and the trustee applies to be joined, or if the court is satisfied that creditors' interests may be affected by an order.

Justice Macmillan granted the wife leave to institute proceedings for property settlement out of time, finding that hardship would be caused to both the wife and the children of the marriage if leave were not granted. The Court reasoned that the wife had been left with significant joint credit card debt following separation and had only recently obtained legal advice. Furthermore, the Court ordered that the Trustee in Bankruptcy be joined as a party to the proceedings. This was deemed appropriate because, although the husband had been discharged from bankruptcy, his property, including his interest in the former matrimonial home, remained vested in the trustee, and any property settlement orders sought by the wife could potentially impact the trustee's ability to satisfy the husband's creditors.

Orders