Turney and Turney

[2008] FamCA 693

FAMILY COURT OF AUSTRALIA

TURNEY & TURNEY [2008] FamCA 693

FAMILY LAW - PROPERTY – No appearance by husband - S79(2) Just and equitable – Final Orders

Family Law Act 1975 (Cth)

APPLICANT: MS TURNEY

RESPONDENT: MR TURNEY

FILE NUMBER: MLC 2628 of 2007

DATE DELIVERED: 11 AUGUST 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 11 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR KORFIATIS

SOLICITOR FOR THE APPLICANT: WEBB KORFIATIS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

ORDERS

IT IS ORDERED:

1. THAT the wife retain sole ownership of the real property situated at T in the State of Victoria, she to be responsible for any mortgage encumbering the title to that property.

2. THAT otherwise the husband and wife each retain any other personal chattels, monies or investments now in their name or within their control.

3. THAT otherwise the interim orders pronounced 16 August 2007 by Cronin J be dismissed.

4. THAT the matter be removed from the list of cases in the Trial Notice List awaiting a date for hearing.

5. THAT all extant applications, both interim and final be otherwise dismissed and the proceedings be removed from the docket of Young J.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

7. THAT the documents produced to the Court pursuant to subpoena be forthwith returned by the Subponeas Clerk, Melbourne Registry, Family Court to the person or organisation having produced those documents to the Court.

8. THAT a sealed copy of this Order be served upon the husband by post pursuant to that which was provided for in paragraph 4 of the Order of 16 August 2007 and an affidavit of service be filed by the wife’s solicitor within fourteen (14) days of the date hereof.

IT IS NOTED

A.THAT the husband has not shown any interest or financial involvement in this case and the wife has sought final orders on the basis of her solicitor’s advice and her knowledge of current financial circumstances.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2628 of 2007

MS TURNEY

Applicant

And

MR TURNEY

Respondent

REASONS FOR JUDGMENT

1. In the matter of Turney, the wife is represented by Mr Korfiatis, solicitor.  There is no appearance by or on behalf of the husband.  The husband was called out of court and did not appear.

2. Pursuant to the orders made 16 August 2007 by Cronin J, the husband was required to be served in the manner specified in paragraph 4 thereof.  I have this day read an affidavit of service of the wife's solicitors and I am satisfied that there was compliance with that particular paragraph.  On that basis, I will dispense with the requirement for any other service and on the particular facts of this case as outlined in the wife's affidavit, I will hear and determine the final property orders before the court.

3. As to children's orders I have been referred to and have read the orders of Cronin J of 2 July 2007 and the extempore judgment that is on file in relation to that hearing.  Thereafter, the matter has returned to court on two further occasions.

4. I am satisfied that in relation to children's matters, there are no pressing applications before the court.  The parties have engineered an arrangement, albeit only somewhat satisfactory, but each of them no doubt would have the continuation of that arrangement where the children largely live with the wife, though the child A does have some organised time to spend with her father.

5. The property matters were dealt with on an interim basis on 16 August 2007 before Cronin J.  What is sought by the wife today is a finalisation of that outcome whereby she is the sole registered owner of the property at T.  She volunteers to be responsible for the balance of mortgage of approximately $42,000 now encumbering that property.

6. I have before me today a Form 2 application in a case filed 4 August 2008.  The wife seeks those previous orders of the court to be made final.  I have no material, response or facts placed before the court by or on behalf of the husband. I have read the wife's affidavit. I am satisfied that this matter does need finality and that a just and equitable determination would be for the wife to have sole ownership of that T property, subject to its mortgage debt. 

7. The earlier material filed in this case makes the allegation of mortgage moneys obtained by the husband.  There seems little doubt that he did earlier receive a substantial sum, though I am unable to exactly quantify the dollar figure. 

8. Over recent times, the husband has operated a cafe business.  Seemingly, that has been sold or otherwise has folded and the premises have been repossessed.  The wife has no knowledge and does not seek to further develop any financial information on the husband's involvement in that business.

9. The wife has instructed her experienced family law solicitor to resolve all matters on the basis of the current order.  Having considered the file and read the earlier affidavits and on the basis of the lack of interest and non-appearance of the husband, I conclude that situation would bring about a just and equitable determination of all matters before the court.

10. In summary therefore this matter does require finality. The husband has had every opportunity to file documents with the court, to make himself available at a court hearing event or to oppose the financial outcome now sought by the wife. Given the ongoing financial circumstances of the wife and, as far as I can ascertain, of the husband and given that they have seemingly accepted their ongoing financial circumstances I will finalise this matter with orders so that the parties are not required to return to court. I find pursuant to s79(2) of the Family Law Act1975 that the orders proposed by the wife are just and equitable.  I will require her solicitors to serve a copy of these reasons for judgment and the sealed copy of the orders upon the husband, or his extended family, as soon as practicable.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young

Associate: …

Date: