Allbeck & Fielders (No 3)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Allbeck & Fielders (No 3) [2025] FedCFamC1F 17

File number(s): PAC 4152 of 2018
Judgment of: CARTER J
Date of judgment: 21 January 2025 
Catchwords:  FAMILY LAW – PRACTICE AND PROCEDURE –Application for stay of final property orders – Preliminary assessment of merits of appeal – Where the appeal would be rendered nugatory if the stay were not granted – Stay granted in part and with conditions.
Legislation:

Family Law Act1975 (Cth) ss 79, 90

Conveyancing Act 1919 (NSW)
Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Elgin & Elgin (2015) 54 Fam LR 31
Division: Division 1 First Instance
Number of paragraphs: 41
Date of hearing: 7 January 2025
Place: Melbourne
Counsel for the Applicant: Mr Havenstein
Solicitor for the Applicant: James & Jaramillo Legal Pty Ltd
Counsel for the First Respondent: Mr Heazelwood
Solicitor for the First Respondent:  Penhall & Co Lawyers
Counsel for the Second Respondent: The litigant appeared in person
Solicitor for the Second Respondent: Holmes Donnelly & Co Solicitors

ORDERS

PAC 4152 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS KAZEM

Applicant
AND:

MS ALLBECK

First Respondent

MR FIELDERS

Second Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

21 JANUARY 2025

THE COURT ORDERS THAT:

1.The following orders made on 14 November 2024 be stayed pending the determination of the Notice of Appeal filed 12 December 2024:

(a)Order 8;

(b)Order 9;

(c)Order 11;

(d)Order 15, on the following conditions:

(i)on completion of the sale of the property at F Street, Suburb G, New South Wales after deducting reasonable selling costs including agent’s commission and conveyancer’s fees, and the amount due and payable to the Australia and New Zealand Banking Group Limited, following the payment to Australia and New Zealand Banking Group Limited, the then remaining balance be paid as follows:

A.the sum of $450,000 be held on trust by the first respondent wife’s solicitors; and

B.the balance be paid to the first respondent wife.

(e)Order 18.

2.The orders made on 14 November 2024 otherwise remain in full force and effect.

3.The Application in a Proceeding filed 16 December 2024 and the Response to the Application in a Proceeding filed 20 December 2024 is otherwise dismissed.

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…

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Details
Case
[2025] FedCFamC1F 17
Decision Date

CaseChat Overview and Summary

In the case of Allbeck & Fielders (No 3), the husband and wife, who were in a de facto relationship from around May 2016 until mid-2021, were before the Family Court of Australia. The wife had commenced proceedings for an adjustment of property in 2018 and for damages for personal injuries in the New South Wales District Court in 2020. The wife was awarded damages in the District Court in late 2021 and subsequently a charging order was made in her favour. The husband appealed the District Court decision, which was dismissed, and sought to encumber assets to fund his appeal, which was also dismissed. The husband made substantial payments to the wife during the proceedings, which were explained as being to satisfy any claim the wife may have under the Family Law Act 1975 (Cth). The wife registered a mortgage over the husband’s property as partial security for the monies purportedly loaned to him.

The legal issues before the court were whether a stay of the final property orders should be granted and whether the appeal would be rendered nugatory if the stay were not granted. The court had to balance the potential prejudice to the wife if the stay were not granted against the need to ensure the appeal was not rendered nugatory. The court also had to consider the effect of the substantial payments made by the husband to the wife and the wife’s mortgage over the husband’s property.

The court found that the appeal would be rendered nugatory if the stay were not granted and that the substantial payments made by the husband to the wife and the wife’s mortgage over the husband’s property did not prejudice the husband’s right to a fair appeal. The court granted a stay of certain orders made on 14 November 2024, pending the determination of the Notice of Appeal filed 12 December 2024, with conditions that on completion of the sale of the property at F Street, Suburb G, New South Wales after deducting reasonable selling costs including agent’s commission and conveyancer’s fees, and the amount due and payable to the Australia and New Zealand Banking Group Limited, following the payment to Australia and New Zealand Banking Group Limited, the then remaining balance be paid as follows: A. the sum of $450,000 be held on trust by the first respondent wife’s solicitors; and B. the balance be paid to the first respondent wife. The court dismissed the Application in a Proceeding filed 16 December 2024 and the Response to the Application in a Proceeding filed 20 December 2024.

The court ordered that the orders made on 14 November 2024 be stayed pending the determination of the Notice of Appeal filed 12 December 2024, with conditions, and that the orders made on 14 November 2024 otherwise remain in full force and effect. The Application in a Proceeding filed 16 December 2024 and the Response to the Application in a Proceeding filed 20 December 2024 was dismissed.

Orders

Orders of the court

PAC 4152 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KAZEM

Applicant

AND:

MS ALLBECK

First Respondent

MR FIELDERS

Second Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

21 JANUARY 2025

THE COURT ORDERS THAT:

1. The following orders made on 14 November 2024 be stayed pending the determination of the Notice of Appeal filed 12 December 2024:

(a) Order 8;

(b) Order 9;

(c) Order 11;

(d) Order 15, on the following conditions:

(i) on completion of the sale of the property at F Street, Suburb G, New South Wales after deducting reasonable selling costs including agent’s commission and conveyancer’s fees, and the amount due and payable to the Australia and New Zealand Banking Group Limited, following the payment to Australia and New Zealand Banking Group Limited, the then remaining balance be paid as follows:

A. the sum of $450,000 be held on trust by the first respondent wife’s solicitors; and

B. the balance be paid to the first respondent wife.

(e) Order 18.

2. The orders made on 14 November 2024 otherwise remain in full force and effect.

3. The Application in a Proceeding filed 16 December 2024 and the Response to the Application in a Proceeding filed 20 December 2024 is otherwise dismissed.

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.

Background

Background to the litigation

The husband and applicant were in a de-facto relationship from around May 2016, and that relationship continued until around mid-2021. RELEVANT BACKGROUND The background to the substantive proceedings was set out in detail by McNab J in his reasons delivered on 14 November 2024. Relevantly, I note:(a)in September 2018 the wife commenced proceedings in this Court seeking orders pursuant to s 79 of the Family Law Act1975 (Cth) (“the Act”) for an adjustment of property as between herself and the husband;(b)in early 2020 the wife commenced proceedings in the New South Wales District Court (“the District Court”) against the husband seeking damages for personal injuries as a result of the various assaults she endured at the hands of the husband during their relationship (“the District Court proceedings”). The proceedings in this Court were stayed pending the outcome of those civil proceedings;(c)in late 2021 the District Court found in favour of the wife and awarded damages in the sum of $490,091. The husband was also to pay her costs of about the same. The wife raised during those proceedings her concerns that the husband was divesting himself of assets to the applicant;(d)the husband appealed the orders of the District Court. He also sought interlocutory orders allowing him to encumber assets to fund his appeal. That application was dismissed, with costs. In his reasons for judgment, the District Court judge made findings that the husband had divested assets in an attempt to avoid the damages and costs awarded to the wife;(e)in early 2022 a charging order was made by the District Court judge in favour of the wife for $980,091 and executed over the husband’s property at F Street, Suburb G (“F Street”), and a property at H Street, Suburb J (“Suburb J”). The husband has a one‑third interest in the property at Suburb J. The other two co-owners are his brothers; (f)the husband’s appeal was dismissed, with costs, in early 2023. As best as I understand it, a further sum of around $137,270 was ordered to be paid to the wife; and(g)whilst those proceedings were on foot, the husband made a number of substantial payments to the applicant including paying her:(i)$331,648 in February 2020, being part proceeds of the sale of a property at U Street, Suburb G;(ii)the sum of $366,624 in May 2021 being proceeds from the sale of a property at V Street, Suburb W;(iii)a further $81,191 in May 2021 from that same sale;(iv)an additional $1,020,000 in July 2021; and(v)a further $159,912 in September 2021 from the sale of property at Suburb Y with a further $78,196 transferred to her three days later. At the hearing before McNab J, the applicant and the husband asserted those payments were not to defeat any claim the wife may have. Rather they provided explanations including that the payments were made to satisfy any claim the applicant would otherwise have against the husband pursuant to s 90SM of the Act. It was further asserted by the applicant and the husband at trial that the applicant had loaned the husband monies (or paid his legal fees) on several occasions between July 2021 and October 2022. In late 2021 the applicant registered a mortgage over the husband’s property at F Street for $300,000 as partial security for the monies purportedly loaned by her to him.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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