Byrd & Byrd & Ors

FAMILY COURT OF AUSTRALIA

BYRD & BYRD AND ORS [2012] FamCA 206

FAMILY LAW - PROPERTY – Application to abort hearing – Application to amend application for final orders to include application for costs during the trial

Family Law Act 1975(Cth)
Family Law Rules (2004) (Cth)
Evidence Act (1995) (Cth)

Vestris v Cashman (1998) 72 SASR 449

APPLICANT: Mr Byrd

RESPONDENT: Ms Byrd

SECOND RESPONDENT:  Mr Y

THIRD RESPONDENT: Ms D

FILE NUMBER: SYC 767 of 2009

DATE DELIVERED: 5 April 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 30 November 2011
15 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Gibsons Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

COUNSEL FOR  2^ND & 3^RD RESPONDENT: Mr Aldridge SC

SOLICITOR FOR 2^ND & 3^RD RESPONDENT:: Watts Mc Cray

Orders

1. The application of the wife contained in her Response to an Application in a Case filed on 30 November 2011 is refused.

2. The husband’s application to amend his Application for Final Orders in the manner sought is allowed and the husband is ordered to file and serve such amended Application within 14 days from the date of these orders.

3. The matter is listed for further mention for directions at 10.00am on 27 April 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Byrd & Byrd and Ors 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 SYDNEY

FILE NUMBER: SYC

Mr Byrd

Applicant

And

Ms Byrd

Respondent

Mr Y

Second Respondent

Ms D

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an interlocutory application contained in a minute of order tendered by the husband in the trial which is part heard before me. The document was tendered on 28 November 2011 and marked as exhibit H6 in the hearing. The orders sought are as follows:

   That pending further order:

   1.        That the wife be restrained from filing any further Affidavit evidence without leave of the Trial Judge Justice Le Poer Trench.

   2.        That the Wife be restrained from:

   2.1.     Transferring, mortgaging or encumbering, or further encumbering, dealing with or adversely affecting her interest in the properties at:

   2.1.1.  [The B property]; and

   2.1.2.  [R Street, Sydney Suburb 1]; and

   2.1.3.  Upon completion of the purchase of the [Sydney Suburb 3] property, that property.

   2.2.     Further drawing down or upon the loan facility provided by the Commonwealth Bank secured upon the [Sydney Suburb 1] property save and except to meet and pay

   2.2.1.  Funds necessary to complete the purchase of the property at [Sydney Suburb 3] exchanged by the wife at the purchase price of $500,000.00 but yet to be completed; and

   2.2.2.  Her legal costs of these proceedings; and

   2.2.3.  Any interest due on the said facility from time to time.

   3.        That the…