Turney and Turney

[2007] FamCA 978

FAMILY COURT OF AUSTRALIA

TURNEY & TURNEY (NO. 2) [2007] FamCA 978

FAMILY LAW – Property – Orders for sale of real property

Family Law Act 1975 (Cth)

APPLICANT: MS TURNEY

RESPONDENT: MR TURNEY

FILE NUMBER: MLC 2628 of 2007

DATE DELIVERED: 24 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 16 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR KORFIATIS

SOLICITOR FOR THE APPLICANT: WEBB KORFIATIS

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the wife’s Form 2 application filed 14 June 2007 be dismissed.

2. That the wife’s application (Form 1) filed 8 March 2007 and the husband’s response filed 17 May 2007 be adjourned to the Trial Notice List on a date to be fixed at an appropriate time by the Registrar.

3. That there be liberty to the wife to apply on short notice for further orders relating to the property proceedings if she desires to proceed to seek the interim orders hereafter made final.

4. Service of any such Form 2 application in a case be by post to the husband c/-:

   (a)    V Partners, … B; and

   (b)   E and B Turney, … W.

5. That paragraph 5 of the orders made 14 May 2007 in so far as it relates to the real property at … T and the consequential orders in paragraphs 13(5), (6), (7), and (8) are discharged.

6. That until further order the wife have the sole use and occupation of the real property at T.

7. That upon the sale of the real property at … K, after the payment of the amounts required to be paid as referred to in paragraph 12(4)(i) to (iii) of the orders made 17 May 2007 be paid to the wife and the ultimate determination of the nature of that payment be classified by the trial judge.

8. That until further order, the husband be and is hereby restrained from disposing or otherwise dealing with the proceeds of the sale of the hospitality business conducted by S Pty Ltd at T.

9. That until further order, the proceeds of the sale of the hospitality business (if any) be held in an interest bearing account on trust for the parties by the solicitor for the wife. 

10. That paragraph 3(e) of the order made 2 July 2007 be discharged.

11. That the reasons for judgment this day be transcribed and be made available to the parties.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Turney and Turney

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2628  of 2007

MS TURNEY

Applicant

And

MR TURNEY

Respondent

REASONS FOR JUDGMENT

1. This matter came to me in the Duty List on 16 August 2007.  Ironically, I dealt with the matter on an interim basis on 2 July 2007 in the same way.  On that occasion I gave reasons for the orders that I made and I shall not repeat them in this judgment.

2. On the last occasion when I dealt with the matter, the husband did not attend court although he was initially represented by his solicitor who sought and was given leave to withdraw from the proceedings.  I made orders for the service of documents on the husband and adjourned the proceedings to 13 August.

3. One of the orders that I made was that any affidavit upon which the wife intended to rely be served upon the husband.  I have read the affidavit of Genevieve Lorna Wilkins who is a solicitor, setting out all of the attempts that she has made to serve the husband.  I have also read the affidavit of Mr V who is a process server.  Mr V served a variety of documents which arose out of my orders on 2 July 2007 personally on the husband at the T hospitality business on 28 July.  It now transpires that subsequent to that date, the landlord of those premises has taken control and locked them, changing the locks.  Needless to say, the husband has been excluded from it.  The affidavit to which I have referred of Ms Wilkins relates to the subsequent endeavours to have the affidavit of the wife filed 30 July 2007 brought to the attention of the husband.  Having regard to the fact that all of the documents to which I referred on 2 July 2007 have been served on the husband save for this affidavit, I waive the requirement of the service of that affidavit and more particularly, discharge paragraph 3(e) of that order.

4. The proceedings were adjourned to 13 August 2007 and on that day, Dessau J adjourned them until today because the wife’s solicitor had to attend a funeral.  I am told by the solicitor that on 13 August, the husband was called and there was no appearance.  The court record notes that as well.  Having regard to the fact that documents have been brought to the attention of the husband and he has been called and given an opportunity to participate in the proceedings, I am quite satisfied that it is appropriate to proceed in his absence today.

5. It is quite obvious also that the wife initially intended to proceed to seek final orders this day but as a result of events to which I shall now turn, that is not possible.

6. In terms of the property proceedings generally, orders that are already in place provide for the sale of the properties one of which I am now discharging so that the wife can live in it.  At the time that order was made, I do not think that that was contemplated.

7. The property that is to be sold at K is encumbered.  That encumbrance which I am told it currently about $748,000 also encumbers the matrimonial home.  The sale of the K property will leave the home in which the wife and children are living unencumbered.  That means that the equity in the home will be about $350-$380,000.  There may be some equity left over from the sale of the K property depending upon its sale price but on any view it will be at best between $50,000 and $100,000.

8. The only other major asset that the parties seem to have was the interest in the hospitality business.  I am told that when the wife re-entered the home, she found an instruction authorising an estate agent to sell the business at an asking price of $495,000.  How realistic that was then is hard to tell but on any view it is unrealistic now that the landlord has taken possession.  I am told also that the business premises contain a number of chattels which were acquired when the shop business was renovated using borrowed funds.  Just how much will be left over from that business is a vexed question.

9. The business is actually formally owned by S Pty Ltd and the wife sought orders against that company but in reality, the husband is the only director and to avoid any doubt, I have only made the orders against the husband in respect of those sale proceeds.  Having regard to the fact that no-one knows exactly where the husband is and because of his past behaviour and I refer specifically to the opening remarks that I made in the hearing on 2 July, it is appropriate that the injunction remain in place to protect the equity in the asset at this time.

10. I am also conscious that the sale of the other property leaving the home in T unencumbered whilst shuffling the equity around, will enable a future hearing to make an adjustment as between husband and wife under s 79 of the Family Law Act 1975 (Cth) (“the Act”) possible.

11. I am told by the solicitor for the wife that the husband was recently seen around the school of the children and as such, notwithstanding it was suggested that he was leaving the country, he may still be around.  That becomes necessary in respect of the service of future documents and I have made provisions in my orders for the husband to have any future application brought to his attention through his accountant or his parents.  The accountant obviously will be still responsible for the company if the husband is still intending to have any business involvement and I had presumed that he would at some stage or other touch base with his parents.  If neither of those prove fruitful, then a future court can give consideration as to whether it is necessary for the husband to have the proceedings brought to his attention by some other method.  At least at this point in time, it is abundantly clear that the husband has no interest in participating and accordingly, the Court should proceed to try and finalise all matters as quickly as possible.

12. Accordingly I have no difficulty in making the orders as I have indicated.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 August 2007