Bulleen and Bulleen (No 4)

[2010] FamCA 1088

FAMILY COURT OF AUSTRALIA

BULLEEN & BULLEEN (NO. 4) [2010] FamCA 1088

FAMILY LAW – STAY – Stay pending appeal – Discretionary exercise

Family Law Act 1975 (Cth)

Jennings Construction & Burgundy Royale (1986) 161 CLR 681
Kelly (1981) FLC 91-007
Stephens (2009) FLC 93-425

APPLICANT: Mr Bulleen

RESPONDENT: Ms Bulleen

FILE NUMBER: MLC 12431 of 2007

DATE DELIVERED: 8 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirkham QC

SOLICITOR FOR THE APPLICANT: Gaden Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dixon

SOLICITOR FOR THE RESPONDENT: Gillian Coote Family Law

Orders

1. That there be a stay of paragraphs 1-5 of the orders made on 28 September 2010 pending determination of the husband’s Notice of Appeal filed this day.

2. As a condition of the stay, the husband is restrained from disposing of any of the artwork in his possession or control and otherwise keeping it insured at all times until the determination of the appeal.

3. That the husband’s application for costs is refused.

4. That the reasons for judgment this day be transcribed.

5. That the application in a case filed this day and the response thereto filed this day be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12431 of 2007

MR BULLEEN

Applicant

And

MS BULLEEN

Respondent

REASONS FOR JUDGMENT

1. In March 2010, I made orders in a property dispute which granted, in part, a division of property, predominantly some real property and some artwork, leaving the balance of the methodology for dividing the parties’ property to themselves.  My hopes were not fulfilled, and the matter came back for hearing, at which stage there was further argument about the artwork. 

2. On 28 September, I delivered judgment in which I effectively reinforced the order that I had made in March, but this time set out a methodology for the division of the parties’ artwork. 

3. It is against that judgment that the husband has appealed, and yesterday he filed a notice of appeal. 

4. The notice of appeal asserts errors in respect of, effectively, the methodology, indicating, amongst other things, that the determination was not one in which he had had an opportunity to participate, and also that, contrary to my ultimate judgment, the jurisdiction to make a determination was not closed. 

5. The arguments today by both parties indicate very clearly that the issue is a live and hotly disputed one.  The question of a stay is a discretionary one.  Whilst the principles are clearly set out in a number of authorities, ultimately those principles simply guide the exercise of discretion. 

6. The husband’s position is relatively simple.  He says that notwithstanding an undertaking by the wife not to dispose of any of the art if the orders were implemented, he is put in a position where he has to…