Dmitrieff and Shaw and Ors (No. 2) - [2008] FamCA 992

FAMILY COURT OF AUSTRALIA

DMITRIEFF & SHAW AND ORS (NO. 2)

[2008] FamCA 992

FAMILY LAW - APPLICATION FOR A STAY OF ORDERS – Where applicant had filed an application for leave to appeal interlocutory orders of practice & procedure – Principles to be considered when staying interlocutory orders – Where grounds justifying grant of stay not established – Application dismissed.

Family Law Act 1975 (Cth) – s 75(2), s 79, s 79A, s 94AA
Family Law Rules 2004 (Cth) – r 22.12, r 22.46

Alexander v Cambridge Credit Corporation 91985) 2 NSWLR 685
Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220

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:

19 November 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

19 November 2008

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Ms Dmitrieff In Person

SOLICITOR FOR THE 1^ST RESPONDENT:

Mr McDonnell

Orders

That paragraph 3 of the wife’s application filed 12 November 2008 in which she seeks a stay of Orders 1, 2, 3(ii), 4 and 5 of the orders of the Honourable Justice Boland of 15 October 2008 is dismissed.
That the relief sought in paragraph 2 of the wife’s application filed 12 November 2008 is stood over for hearing before the docket Judge, the Honourable Justice Fowler, on 16 December 2008 at 2.15 pm.
That the costs of this application be reserved until the conclusion of the hearing of the wife’s application for leave to appeal. Any party may thereafter re-list the matter by arrangement with the listing co-ordinator at a date and time to be notified for determination of the reserved costs.

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

REASONS FOR JUDGMENT

Introduction

Ms Dmitrieff, (“the wife”) is the applicant in proceedings for property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”). The other parties to the proceedings are Mr Shaw (“the husband”), Mr P (“[Mr P]”) the second respondent, two companies of which Mr P is a director and shareholder…

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 (No. 2)

Details

AGLC: Dmitrieff and Shaw and Ors (No. 2) [2008] FamCA 992
Case: [2008] FamCA 992
Decision Date: 19 November 2008

CaseChat Overview and Summary

In the matter of *Dmitrieff and Shaw and Ors (No. 2)*, Justice Boland of the Family Court of Australia considered an application by the wife concerning previous orders made on 15 October 2008. The wife sought to stay certain of those orders, specifically those numbered 1, 2, 3(ii), 4, and 5.

The primary legal issue before the court was whether to grant the wife's application for a stay of the previously made orders. This required the court to assess the merits of the wife's request for a temporary suspension of the operation of those orders pending further proceedings.

Justice Boland dismissed the wife's application for a stay of the orders of 15 October 2008. However, the relief sought in another part of the wife's application was stood over for a future hearing before Justice Fowler. The costs associated with this application were reserved, to be determined after the conclusion of the wife's application for leave to appeal.

Orders

Orders of the court

That paragraph 3 of the wife’s application filed 12 November 2008 in which she seeks a stay of Orders 1, 2, 3(ii), 4 and 5 of the orders of the Honourable Justice Boland of 15 October 2008 is dismissed.

That the relief sought in paragraph 2 of the wife’s application filed 12 November 2008 is stood over for hearing before the docket Judge, the Honourable Justice Fowler, on 16 December 2008 at 2.15 pm.

That the costs of this application be reserved until the conclusion of the hearing of the wife’s application for leave to appeal. Any party may thereafter re-list the matter by arrangement with the listing co-ordinator at a date and time to be notified for determination of the reserved costs.

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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