Aitken & Aitken (No 9)
[2025] FedCFamC1F 200
•26 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aitken & Aitken (No 9) [2025] FedCFamC1F 200
File number(s): SYC 5021 of 2019 Judgment of: HARPER J Date of judgment: 26 March 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Enforcement of final orders made by consent – Where wife made an oral application seeking discharge of the currently operating stay upon the receivers joined as parties – Where wife contends that the stay currently in force preventing the receivers from taking any further steps to carry out their duties should be discharged because there was no basis for it disclosed – Where the interests of justice and the overarching purpose outweigh the arguable basis for the stay to be lifted – Where the Court declines to make orders to discharge the stay. Legislation: Family Law Act 1975 (Cth) s 95 Division: Division 1 First Instance Number of paragraphs: 4 Date of hearing: 26 March 2025 Place: Sydney Solicitor for the Applicant: Ms Mirza-Price of Mills Oakley Counsel for the First Respondent: Mr Kearney SC Solicitor for the First Respondent: Nolan Lawyers Counsel for the Second Respondent: Mr Anderson Solicitor for the Second Respondent: Mangioni Biggs + Co ORDERS
SYC 5021 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AITKEN
Applicant
AND: MS AITKEN
First Respondent
MR VIK AND MR SCIARRA OF AS PTY LTD
Second Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
26 MARCH 2025
THE COURT NOTES THAT:
A.There has been an exchange of proposed finance documentation between the Applicant Husband (“husband”) and Respondent Wife (“wife”) about which there is no agreement. The purpose of such exchange was directed to compliance with Order 6 of final orders made on 9 April 2024.
B.Pursuant to the final orders there are presently appointed and joined as additional parties to the proceedings receivers of property of a number of entities who were also joined as parties to the substantive proceedings which were finalised by the final orders made on 9 April 2024.
C.There is presently in force a stay of the orders empowering the receivers to take steps to comply with their duties and obligations as receivers.
D.The hearing for the determination of the balance of the Amended Application – Enforcement should be listed on a date not before 1 May 2025.
THE COURT ORDERS THAT:
1.The husband is to file and serve any affidavit material upon which he proposes to rely directed to the determination of the issues raised by paragraphs 2, 6, 8 and 10 of the Amended Application – Enforcement filed on 18 November 2024 by no later than close of Registry filing on 2 April 2025.
2.The wife is to file and serve any material in response by no later than close of Registry filing on 16 April 2025.
3.The balance of the Amended Application – Enforcement filed on 18 November 2025 is listed for hearing on a date to be advised.
4.Leave is granted to the parties to submit to the Chambers of Justice Harper proposed orders to be made by consent to finalise the outstanding issues arising from the Amended Application – Enforcement filed on 18 November 2024.
5.Leave is granted for the receivers to file and serve by no later than close of Registry filing on 16 April 2025 any proposed application in a proceeding for approval of their costs, expenses and renumeration to be made returnable for hearing at the same time as the balance of the Amended Application – Enforcement.
THE COURT DIRECTS THAT:
6.The parties are to file and serve written submissions in support of their contentions 72 hours prior to the date upon which the balance of the Amended Application – Enforcement is listed for hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Aitken & Aitken have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
This is an ex tempore judgment in relation to the determination of an oral application made on 26 March 2025 by the respondent wife (“wife”) seeking to discharge the current stay operating upon the receivers joined as parties to this application.
It was submitted by senior counsel on behalf of the wife that the stay currently in force preventing the receivers from taking any further steps to carry out their duties and responsibilities should no longer be operative and should be discharged because there was no longer any basis for it.
The stay order was not in its terms confined temporarily so that it will continue until further order of the Court. In my view, even though it may be arguable that the basis for the stay has, or is in the process of being, dissipated, in circumstances where there are issues which involve the receivers, including their renumeration, which will require determination by the Court and a hearing can take place in a relatively short space of time, it is not in the interests of justice or in accordance with the proper discharge of the obligations created by the overarching purpose set forth in s 95 of the Family Law Act 1975 (Cth), for that stay to be lifted at this point. I bear in mind that if it was lifted it would result in a further incurring of costs which may be substantial and which would have the consequence of exacerbating the areas of conflict that currently exist between the husband and wife.
For those reasons, I decline at this point in time to discharge the stay.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 26 March 2025
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