Ganem and Ganem and Anor - [2015] FamCA 377

FAMILY COURT OF AUSTRALIA

GANEM & GANEM AND ANOR

[2015] FamCA 377

FAMILY LAW – APPLICATION IN A CASE – Application for a stay of parenting and property orders – Application for reinstatement of previous parenting orders – Whether there is a proper basis for the stay – Where the father has no contact with the child – Where the father alleges sexual abuse of the child by the mother’s new boyfriend – Where it is found that unacceptable questioning of the child in relation to abuse would occur if the father is permitted to spend time with the child – Where it would not be in the best interests of the child to grant a stay of the parenting orders – Where there is no basis for a stay of the order to pay outstanding school fees – Where there is no basis for a stay of the order to pay receivers’ fee – Application dismissed.

Family Law Act 1975 (Cth)

Ganem & Ganem [2014] FamCA 1177
Gronow v Gronow [1979] HCA 63
Trahn & Long(No.2) (2008) FamCAFC 194

APPLICANT:

Mr Ganem

RESPONDENT:

Ms Ganem

INTERVENOR:

Mr B and Mr A

INDEPENDENT CHILDREN’S LAWYER:

Watts McCray

FILE NUMBER:

SYC

931

2012

DATE DELIVERED:

24 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

24 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ganem in Person

COUNSEL FOR THE RESPONDENT:

Ms Barnett

SOLICITOR FOR THE RESPONDENT:

Mason Mia & Associates-Solicitors & Advocates

SOLICITOR FOR THE INTERVENOR:

In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Barnett

Mason Mia & Associates-Solicitors & Advocates

CLH Lawyers

Watts McCray

Orders

That the Application in a Case filed by the Husband on 12 March 2015 is dismissed.
That on a without admissions basis, I make Orders 3 and 4 as outlined in the Response to an Application in a Case filed by the Wife on 20 April 2015, set out herein:

3.That within 14 days the Interveners/Receivers cause to be removed the Caveat Lodged by them upon the real property situated at and known as O Street, L Town, NSW … being the whole of the land contained in Certificate of Title Folio Identifier … (“the L Town property”).

4.That within 14 days the Receivers cause to be removed the Caveat Lodged by them upon the real property situated at and known as E Street, Suburb H NSW, … being the whole of the land contained in Certificate of Title Folio Identifier … to … (“the Suburb H property”).

That leave is granted to the Respondent Wife and the Intervener to make an application for costs this day.
That any evidence or letters quantifying costs, for the purposes of seeking costs in a specific sum, are to be served upon the Husband on or before 28 April 2015.
That, on or before 27 May 2015, the Husband is to file and serve any affidavit material he seeks to rely upon in relation to costs.
That the…

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.

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Details

Case: [2015] FamCA 377
Decision Date: 24 April 2015

CaseChat Overview and Summary

In the matter of *Ganem and Ganem and Anor*, Aldridge J of the Federal Circuit Court of Australia considered an application by the Husband and a response filed by the Wife. The dispute concerned the removal of caveats lodged by interveners/receivers on two properties, the L Town property and the Suburb H property. The Husband sought to have his application dismissed, while the Wife sought orders for the removal of the caveats.

The primary legal issue before the court was whether the caveats lodged by the interveners/receivers on the L Town property and the Suburb H property should be removed. This required the court to consider the validity of the caveats and the grounds upon which they were lodged, in the context of the broader family law proceedings between the Husband and Wife.

Aldridge J dismissed the Husband's application. The court made orders, on a without admissions basis, requiring the interveners/receivers to remove the caveats lodged on both the L Town property and the Suburb H property within 14 days. Leave was granted for the Wife and the Intervener to make applications for costs, with specific timelines set for the filing and service of evidence and affidavits relating to those costs applications. The costs applications were scheduled to be heard on 2 June 2015, with all parties except the Husband excused from personal attendance.

Orders

Orders of the court

That the Application in a Case filed by the Husband on 12 March 2015 is dismissed.

That on a without admissions basis, I make Orders 3 and 4 as outlined in the Response to an Application in a Case filed by the Wife on 20 April 2015, set out herein:

3. That within 14 days the Interveners/Receivers cause to be removed the Caveat Lodged by them upon the real property situated at and known as O Street, L Town, NSW … being the whole of the land contained in Certificate of Title Folio Identifier … (“the L Town property”).

4. That within 14 days the Receivers cause to be removed the Caveat Lodged by them upon the real property situated at and known as E Street, Suburb H NSW, … being the whole of the land contained in Certificate of Title Folio Identifier … to … (“the Suburb H property”).

That leave is granted to the Respondent Wife and the Intervener to make an application for costs this day.

That any evidence or letters quantifying costs, for the purposes of seeking costs in a specific sum, are to be served upon the Husband on or before 28 April 2015.

That, on or before 27 May 2015, the Husband is to file and serve any affidavit material he seeks to rely upon in relation to costs.

That the costs applications are to be heard by me on 2 June 2015 at 9.30 am.

That all parties, other than the Husband, are excused from personal attendance on 2 June 2015.

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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