Dmitrieff and Shaw and Ors - [2008] FamCA 881

FAMILY COURT OF AUSTRALIA

DMITRIEFF & SHAW AND ORS

[2008] FamCA 881

FAMILY LAW – ORDERS – Stay application

APPLICANT:

Ms Dmitrieff

FIRST RESPONDENT:	Mr Shaw
SECOND RESPONDENT:	Mr P
THIRD RESPONDENT:	L Pty Ltd
FOURTH RESPONDENT:	D Pty Ltd
FIFTH RESPONDENT:	Ms E
SIXTH RESPONDENT:	Mr G
SEVENTH RESPONDENT:	Mr A
EIGHTH RESPONDENT:	Ms J
NINTH RESPONDENT:	Ms S
TENTH RESPONDENT:	Ms T

FILE NUMBER:

SYF

5191

1993

DATE DELIVERED:

15 October 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

15 October 2008

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Ms Dmitrieff In Person

SOLICITOR FOR THE 1^ST RESPONDENT:

Mrs Ford

Orders

That pursuant to the slip rule order 1 of the orders made 3 September 2008 is varied by deleting the words “and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court”.
That paragraph 1 of the wife’s application filed 8 September 2008 is dismissed.
That the orders made on 3 September 2008 be varied as follows:
(i)by deleting from Orders 2, 4, 5 6 and 12 the date 15 October 2008 and substituting in lieu 15 November 2008.
(ii)by deleting from Orders 7, 8, 9, 10 and 13 the date 5 November 2008 and substituting in lieu 5 December 2008.
That the wife pay the husband’s costs of and incidental to the application of 8 September 2008 as agreed and failing agreement as assessed pursuant to Chapter 19 of the Family Law Rules 2004.
That the costs order (Order 4) be stayed pending determination of the proceedings under Section 79 between the husband and wife and the other parties.
IT IS NOTED that at the request of the wife for all future publication purposes this matter be reported as Dmitrieff.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5191 of 1993

Ms Dmitrieff

Applicant

And

Mr Shaw

First Respondent

Mr P

Second Respondent

L Pty Ltd

Third Respondent

D Pty Ltd

Fourth Respondent

Ms E

Fifth Respondent

Mr G

Sixth Respondent

Mr A

Seventh Respondent

Ms J

Eighth Respondent

Ms S

Ninth Respondent

Ms T

Tenth Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

The application before me is an application in the case filed on 8 September 2008 by Ms Dmitrieff who, for convenience only and without wishing to cause any offence, I will refer to as “the wife”. In her application the wife seeks the following orders:
1.To stand over Justice Boland’s Orders of 3 September 2008 until the applicant’s wife [sic] appeal is heard in the Federal Court of Australia, Matter No.NSD […] regarding the Bankruptcy and the return of the marital property of the [Shaw/Dmitrieff] marriage/relationship from the possession of Mr [P], the Second Respondent in this matter, and/or his companies, [SL] Pty Ltd, the Third Respondent,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dmitrieff and Shaw and Ors

Details

AGLC: Dmitrieff and Shaw and Ors [2008] FamCA 881
Case: [2008] FamCA 881
Decision Date: 15 October 2008

CaseChat Overview and Summary

In *Dmitrieff and Shaw and Ors*, Boland J considered an application to vary orders previously made by the Court on 3 September 2008. The dispute concerned the correction of an error in the original orders and the dismissal of a specific part of the wife's subsequent application.

The primary legal issues before the Court were whether the original orders should be varied pursuant to the slip rule to remove a reference to a rehearing of a review application, and whether the wife's application filed on 8 September 2008, specifically paragraph 1 thereof, should be dismissed. The Court also had to determine whether to vary the dates specified in the existing orders and to make orders regarding costs.

Boland J applied the slip rule to correct an error in the original orders, deleting the phrase "and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court" from order 1. The Court dismissed paragraph 1 of the wife's application filed on 8 September 2008. Further, the Court varied the original orders by substituting later dates for those previously stipulated, specifically changing 15 October 2008 to 15 November 2008 in orders 2, 4, 5, 6, and 12, and 5 November 2008 to 5 December 2008 in orders 7, 8, 9, 10, and 13.

The Court ordered that the wife pay the husband's costs of and incidental to the application of 8 September 2008, to be agreed or assessed. This costs order was stayed pending the determination of proceedings under Section 79 between the husband, wife, and other parties.

Orders

Orders of the court

That pursuant to the slip rule order 1 of the orders made 3 September 2008 is varied by deleting the words “and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court”.

That paragraph 1 of the wife’s application filed 8 September 2008 is dismissed.

That the orders made on 3 September 2008 be varied as follows:

(i) by deleting from Orders 2, 4, 5 6 and 12 the date 15 October 2008 and substituting in lieu 15 November 2008.

(ii) by deleting from Orders 7, 8, 9, 10 and 13 the date 5 November 2008 and substituting in lieu 5 December 2008.

That the wife pay the husband’s costs of and incidental to the application of 8 September 2008 as agreed and failing agreement as assessed pursuant to Chapter 19 of the Family Law Rules 2004.

That the costs order (Order 4) be stayed pending determination of the proceedings under Section 79 between the husband and wife and the other parties.

Background

Background to the litigation

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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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