FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gellner & Gellner [2024] FedCFamC2F 1392
File number(s): SYC 4187 of 2023 Judgment of: JUDGE STREET Date of judgment: 3 October 2024 Catchwords: FAMILY LAW – Property – part-heard – drawdown - injunction – administration of justice. Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 5 Date of hearing: 3 October 2024 Place: Sydney Counsel for the Applicant: Mr S Gardiner Solicitor for the Applicant: One Group Legal Pty Ltd Counsel for the Respondent: Mr A Strik Solicitor for the Respondent: Urban Family Lawyers ORDERS
SYC 4187 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GELLNER
Applicant
AND: MS GELLNER
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to section 114 of the Family Law Act 1975 (Cth), the respondent is restrained from any further withdrawal or drawdown from the mortgage or otherwise seeking to encumber, mortgage or deal in any way with the property known as B Street, Suburb C, NSW being the land described in folio identifier ….
2.The part-heard property matter is stood down for a final property hearing commencing at 10:00am on 5 December 2024 and continuing till 6 December 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3.The parties are directed to file and serve an updated balance sheet, which was marked Exhibit E, 7 days prior to the hearing.
4.Leave is granted to the parties to issue more than five (5) subpoenas.
5.Leave is granted to the parties to have photocopying access to the material produced under subpoena, subject to any proper notice of objection.
6.Leave is granted to the parties to provide consent orders to be made in chambers, if appropriate.
THE COURT NOTES THAT:
A.The Court will take into account Calderbank offers made within the next 7 days, as result of the commencement of this final property hearing, in determining whether or not the criteria under section 117 of the Family Law Act 1975 (Cth) is met for the making of an adverse costs order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
These are property proceedings that are currently part-heard and have to be adjourned until 5 December 2024.
Mr Gardiner, on behalf of the applicant husband (“the husband”), identified that there appeared to be an unusual drawdown on the mortgage in respect of the matrimonial home that is the primary asset in the property alteration proceedings that are on foot. Mr Strik, on behalf of the respondent wife (“the wife”), properly informed the Court that it appeared to relate to a drawdown by the wife for the payment of legal fees.
It is appropriate, in those circumstances, to ensure that there is no further drawdown or encumbering of the property that is currently the subject of the s 79 of the Family Law Act 1975 (Cth) (“the Act”) application.
The Court makes orders to ensure the net pool is preserved in circumstances where it is satisfied that such an injunctive order is necessary and in the interest of the administration of justice taking into account the earlier drawdown in the order of approximately $203,000, which may in due course be the subject of an add back claim to the net property pool. The Court is satisfied that it is appropriate to impose such an injunction under s 114 of the Act. The Court has also taken into account s 96 of the Act.
It is for these reasons the Court makes the above orders.
I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Street. Associate:
Dated: 10 October 2024
- AGLC
- Gellner & Gellner [2024] FedCFamC2F 1392
- Case
- [2024] FedCFamC2F 1392
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of this case involved the application of section 114 of the Family Law Act 1975 (Cth) to restrain the respondent from further financial transactions concerning the property. The court had to balance the need to protect the asset against the respondent's rights and the broader principles of fairness in the administration of justice. The court's reasoning was influenced by the urgency of the matter and the necessity to preserve the status quo until a final determination could be made. The court noted that the respondent's actions could potentially prejudice the outcome of the property settlement, thereby impacting the fairness of the final division of assets.
In its orders, the court restrained the respondent from any further withdrawal or drawdown from the mortgage and from seeking to encumber, mortgage, or deal with the property in any way. The court also scheduled the final property hearing for December 2024, directing the parties to update their financial disclosures and to manage the discovery process within the parameters set by the court. Furthermore, the court allowed for flexibility in the issuance of subpoenas and the use of consent orders to streamline the proceedings. The court's decision was made with the consideration of Calderbank offers, which could affect the costs orders under section 117 of the Family Law Act 1975 (Cth). The orders reflect the court's intent to manage the case efficiently while ensuring that both parties have the opportunity to present their cases fully.
Orders
Orders of the court
SYC 4187 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR GELLNER
Applicant
AND:
MS GELLNER
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 OCTOBER 2024
THE COURT ORDERS THAT:
1. Pursuant to section 114 of the Family Law Act 1975 (Cth), the respondent is restrained from any further withdrawal or drawdown from the mortgage or otherwise seeking to encumber, mortgage or deal in any way with the property known as B Street, Suburb C, NSW being the land described in folio identifier ….
2. The part-heard property matter is stood down for a final property hearing commencing at 10:00am on 5 December 2024 and continuing till 6 December 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
3. The parties are directed to file and serve an updated balance sheet, which was marked Exhibit E, 7 days prior to the hearing.
4. Leave is granted to the parties to issue more than five (5) subpoenas.
5. Leave is granted to the parties to have photocopying access to the material produced under subpoena, subject to any proper notice of objection.
6. Leave is granted to the parties to provide consent orders to be made in chambers, if appropriate.
THE COURT NOTES THAT:
A. The Court will take into account Calderbank offers made within the next 7 days, as result of the commencement of this final property hearing, in determining whether or not the criteria under section 117 of the Family Law Act 1975 (Cth) is met for the making of an adverse costs order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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