Davalos and Davalos (No 2)

[2016] FamCA 502

FAMILY COURT OF AUSTRALIA

DAVALOS & DAVALOS (NO 2) [2016] FamCA 502

FAMILY LAW – PROPERTY – Where substantive property orders had previously been made – Where the wife lodged an appeal in  the substantive property proceedings – Where the wife sought a stay of the property orders pending appeal – Where a stay of the orders had been granted with conditions – Where an Application in an Appeal has been made for the purpose of the husband conceding the appeal – Where the wife seeks machinery orders to enable her to receive some funds pending re-hearing of the substantive property proceedings – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Davalos

RESPONDENT: Mr Davalos

FILE NUMBER: SYC 6919 of 2011

DATE DELIVERED: 9 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 9 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom SC

SOLICITOR FOR THE APPLICANT: Delaney Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Blanchfield Nicholls Partners

Orders

1. That the wife’s Application in a Case filed on 15 April 2016 seeking machinery orders in respect of the superannuation fund is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davalos & Davalos (No 2) 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 6919 of 2011

Ms Davalos

Applicant

And

Mr Davalos

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Davalos (“the wife”) for machinery orders.  The application is opposed by Mr Davalos (“the husband”).

2. On 18 August 2015 I made substantive orders in these proceedings.  Those orders included, at paragraph 3

   3.That the husband and the wife do all things and sign all documents necessary to cause the money in the joint controlled money account ($1 419 972) to be paid as follows:

   -          $1 410 110 to the husband; and

   -          $9862 to the wife.

3. I also ordered at paragraph 8 of the orders:

   8.That otherwise the parties are each declared the sole owner of all other property and superannuation in their possession and/or control respectively.

4. It is the case that each of the parties has an interest in the relevant superannuation fund, the Mr Davalos Pty Limited Superannuation Fund.

5. I found that the husband’s interest in that fund was in the amount of $6707 and the wife’s interest in that fund was $578 884.  The wife has the overwhelming majority of interest in that fund.  The major asset of the fund is real estate, being business premises in the Eastern suburbs, from which the husband has practised as a health professional.  I understand, contrary to my understanding at the time of making the orders, that the husband is continuing to conduct a presumably modest business from those rooms. 

6. Those orders, paragraphs 3 and 8, then became the subject of an appeal by the wife and there was an application by her to stay those orders.

7. On 1 April 2016 I heard the stay application and I ordered:

   4.That order 3 of the orders made on 18 August 2015 is stayed pending completion of the wife’s appeal but only on condition that the husband and wife forthwith do all things and sign all documents necessary to cause the payment to the husband of the amount of $500,000 out of the money held in the controlled money account.

8. After making those orders for the stay I suggested to learned counsel, Mr Batey, that perhaps a way of enabling his client to be able to receive some funds would be for him to seek some machinery orders in respect of the superannuation which would require the parties to sell the rooms and then have an accounting and a payment out to each of them of their interests in the superannuation fund. 

9. On the one hand, I am being urged to make such orders really for the purpose of providing the wife with some funds.  I have the benefit of a minute of orders provided by learned senior counsel for the wife, which would require the husband and the wife in their capacities as trustees of the superannuation fund to cause the sale of that property being LL Street, Suburb JJ New South Wales.  To facilitate that, there are a number of orders sought to provide for the details of sale and then, ultimately, for payment out of the proceeds.

10. On the other hand, learned senior counsel for the husband submits that there would be no utility in the order, that it would be inappropriate to make an order in circumstances where, subsequent to the order granting the stay, the husband indicated to the Court that he proposed to concede the appeal, that an application in an appeal for this purpose has been filed and that it has been made returnable on 24 May 2016 before May J. 

11. This has been an extremely complex piece of litigation.  It seems that almost every point which could possibly be taken in the litigation has been taken.  I do not propose to make the order sought, for the reason that, in my view, it runs the very real risk of further complicating this litigation and possibly opening up further problems for the parties.  As I have indicated, in my view, to the extent that one or other of the parties requires some further interlocutory relief, such an application can be put before whoever the new trial judge re-hearing the matter will be.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 9 May 2016.

Associate:     

Date:              21 June 2016