Sresbodan and Sresbodan

[2009] FamCA 831

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN [2009] FamCA 831

FAMILY LAW - PROPERTY - leave granted to trustee in bankruptcy to be party to proceedings

APPLICANT: Ms Stresbodan

RESPONDENT: Mr Sresbodan

INTERVENOR: Trustee in Bankruptcy

FILE NUMBER: SYF 4345 of 2006

DATE DELIVERED: 31 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 31 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Adrian Twigg & Co

SOLICITOR FOR THE RESPONDENT: Litigant in person

COUNSEL FOR THE INTERVENOR: Mr Livingstone

SOLICITOR FOR THE INTERVENOR: Watson & Watson

Orders

1. The unsworn affidavit the husband has presented in court this morning be marked as Exhibit “A”.

2. Leave be granted to the husband’s trustee in bankruptcy to be a party to the proceedings.

3. Within 28 days the husband provide the trustee a written statement signed by the husband dealing with all facts that are not contained in his affidavit sworn on 10 December 2007 which he says are relevant to the Court’s consideration of alteration of property interests.

4. Any application for consent orders pursuant to s 79 Family Law Act will be supported by an affidavit by the trustee setting out whether or not the trustee has received the written statement referred to in the previous order and if that statement has been received how the trustee has taken that into account when reaching a conclusion that the agreed set of orders are a just and equitable distribution of the property of the husband and the wife and otherwise setting out why the trustee has concluded the consent orders are just and equitable.

5. The issue of whether the husband will be able to make submissions at any further Court event be reserved.

6. The matter is otherwise adjourned to Friday, 30 October 2009 at 10.00 am.

NOTATION:

1. Mr Sresbodan, on his oath this morning, swore to the truth of the contents of Exhibit “A”.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4345 of 2006

MS SRESBODAN

Applicant

And

MR SRESBODAN

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The husband’s trustee in bankruptcy has made an application that the trustee be joined as a party to the proceedings. 

2. The trustee has a right to be joined as of right pursuant to s 79(11) of the Family Law Act 1975 (Cth) if the court is satisfied that the interests of the bankrupt creditors may be affected by the making of an order under s 79 Family Law Act.

3. Counsel for the trustee conceded that there is no question in this case that the creditors will eventually be paid. The trustee in bankruptcy will inevitably receive by way of a s 79 order an alteration of property which will more than adequately satisfy the current creditors. The question however is that if the husband is left to prosecute his application how long that will take and I agree with the trustee that the Court would lack confidence in the matter being expeditiously dealt with.

4. The history of this matter would indicate that if the husband is left to his own devices the creditors could have no confidence that the matter will be resolved in a timely manner. 

5. The other reason why the trustee should be joined is that the husband’s property is, of course, currently vested in the trustee and the wife’s application is that she receive more than one half of that property. 

6. For those reasons it is appropriate for leave to be granted to the husband’s trustee to become a party to these proceedings. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 

Date:  3 September 2009