UNSWORTH & UNSWORTH

[2014] FamCA 992

FAMILY COURT OF AUSTRALIA

UNSWORTH & UNSWORTH [2014] FamCA 992

FAMILY LAW – ADJOURNMENT

APPLICANT: Ms Unsworth

RESPONDENT: Mr Unsworth

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7851 of 2012

DATE DELIVERED: 17 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 17 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweeney

SOLICITOR FOR THE APPLICANT: Bancroft Lawyers

COUNSEL FOR THE RESPONDENT: Mr P.M. O’Shannessy

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Unsworth & Unsworth 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 7851 of 2012

Ms Unsworth

Applicant

And

Mr Unsworth

Respondent

REASONS FOR JUDGMENT

1. I have before me today an oral application made on behalf of the respondent husband, seeking orders that these proceedings be adjourned.  The husband seeks that the matter be adjourned a date after 4 September 2014 on the basis that it occur either at the conclusion of the evidence today or alternatively, that the matter be adjourned forthwith. 

2. One of the central issues in dispute in this matter is the sale of a commercial property at B Street, Suburb C owned by an entity controlled by the parties.  The evidence currently before me indicates that there is an offer to enter into an option to purchase that property for the sum of $4.5 million, the proposed purchaser being an entity described as D Pty Ltd.  In addition to that evidence, which is proffered by the husband, the wife also deposes as to an offer to purchase that property for the same purchase price by a different purchaser. 

3. The husband entered into a preliminary agreement with D Pty Ltd to enter into the option to purchase.  That letter of acceptance was signed by the husband on 4 July 2014.  The documents executed by the husband are annexure PAU1 of his affidavit dated 11 July 2014.  It is said on behalf of the husband in support of his adjournment application that there is significant uncertainty around that offer as to its terms, and as to whether or not the option to purchase will be exercised.  It is said by the husband that the position with respect to that offer will be known to all parties by 4 September 2014.  It is on that basis that the husband seeks that the matter be adjourned to a date after 4 September 2014.

4. It is also said on behalf of the husband that unless there is an adjournment, it will be very difficult to craft final orders as it will not be known until that time whether or not the proposed sale is proceeding. In support of the application, reference was also made on behalf of the husband to the provisions of s79(5) of the Family Law Act.

5. The application for an adjournment is opposed by the wife.  She says in support of her application that the history of this matter is such that the time for finality is nigh.  These proceedings have been on foot since October 2012.  They have had a troubled history in the Court, to the extent that there have been contested divorce proceedings.  There have been issues with compliance with previous court orders and a contravention application has been filed.  She says that the position of the husband is that he does not wish to let go of the marriage and of control of their financial affairs. 

6. It is said in support of the wife’s position that there is sufficient evidence before me as to the value of the B Street property.  Alternatively, it is said that I am in a position, given the evidence before the Court, to make an assessment as to percentage and to therefore craft orders which will enable the parties to finalise their financial positions. 

7. Further, it is said that the position as to the proposed offer to enter into an option to purchase has been known by the husband since 11 June 2014.  If that was to be an impediment to the trial proceeding, any application for an adjournment should have been made well prior to the second day of the final hearing. 

8. I accept the submissions of the wife.  The husband has known of the position in relation to the proposed offer to purchase since 11 June 2014.  He executed the letter of offer on 4 July.  If he perceived that there was likely to be a difficulty in proceeding, the time for such application was well prior to the second day of the hearing. 

9. Further, I am satisfied that there is sufficient evidence before me to enable me to make findings as to the parties’ assets in relation to value or alternatively, to make findings as to percentage division, such that I will be in a position to formulate final orders in this matter at the conclusion of the hearing.  Accordingly, I dismiss the application for an adjournment. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 17 July 2014.

Associate:

Date:  17 July 2014