George and George (No. 2) - [2015] FamCA 250

FAMILY COURT OF AUSTRALIA

GEORGE & GEORGE (NO. 2)

[2015] FamCA 250

FAMILY LAW – STAY – Where the husband sought a stay of an order for property settlement – Application dismissed subject to conditions

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131

APPLICANT:

Mr George

RESPONDENT:

Ms George

FILE NUMBER:

SYC

7612

2011

DATE DELIVERED:

2 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

2 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

York Family Law

Orders

Subject to the following orders, the husband’s Applications in a Case filed 27 February 2015 and 30 March 2015, seeking a stay of the orders made 27 January 2015 be dismissed.
Paragraphs 2 and 3 of the property settlement order made on the 27 January 2015, be varied by deleting the words “within three (3) months from the date of these orders” and inserting instead the words “on or before 4 June 2015”, provided that the husband shall pay to the wife on or before 4 June 2015 an amount of interest calculated on the sum of $115,455 from 27 April 2015 to the date of payment, in accordance with the Family Law Rules 2004 (Cth).
It be a condition of the refusal of the stay in order 1 that the wife ensure that until the conclusion of the proceedings commenced by the husband’s Notice of Appeal filed 20 March 2015, or further agreement between the parties in writing:
3.1The property at T Street, Suburb F (“the Suburb F property”), remain in the wife’s sole name as registered proprietor after it is transferred to her.
3.2The wife not encumber the property by an amount of more than the sum of $650,000, subject to the further written agreement of the parties or further order of the court.
3.3The wife occupy the property, and in the event she vacates the property, she is to give the husband written notice that she has done so and is not to allow anybody else to occupy the property for a period of 28 days after that written notice, and the husband has liberty on 14 days to apply to re-occupy the property on the basis that he pay the wife market rent for the Suburb F property.
3.4The husband will pay to the wife the sum of $600 per week calculated from the 27 April 2015 to the date of him vacating the Suburb F property such sum to be paid at the same time as the payment of the amount pursuant to paragraph 2.1.3 of the property settlement order made 27 January 2015.
The husband is to inform the wife as to when he has obtained approval for finance that would allow him to comply with paragraphs 2.1.2, 2.1.3, and 2.1.4 of the property settlement order made on 27 January 2015.
Any application for enforcement of orders be filed within seven (7) days together…

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 George and George (No. 2)

Details

AGLC: George and George (No. 2) [2015] FamCA 250
Case: [2015] FamCA 250
Decision Date: 2 April 2015

CaseChat Overview and Summary

In *George and George (No. 2)*, Watts J of the Family Court of Australia considered applications by the husband seeking a stay of property settlement orders made on 27 January 2015. The dispute centred on the husband's ability to comply with the original property settlement orders and his subsequent appeal.

The primary legal issues before the court were whether to grant the husband's applications for a stay of the property settlement orders, and if not, what conditions should be imposed on the refusal of the stay. The court also had to determine variations to the original property settlement orders regarding the timing of payments and the terms of the wife's occupation and management of a specific property.

Watts J dismissed the husband's applications for a stay of the property settlement orders, subject to certain conditions. The court varied the original orders by altering the timeframe for a payment from "within three (3) months from the date of these orders" to "on or before 4 June 2015," with a requirement for the husband to pay interest on a specified sum from 27 April 2015 to the date of payment. Crucially, the refusal of the stay was conditional upon the wife ensuring the property remained in her sole name, not encumbering it beyond $650,000 without agreement or further order, occupying the property, and providing notice if she vacated, with the husband having liberty to apply to re-occupy. The husband was also ordered to pay the wife $600 per week from 27 April 2015 until he vacated the property. The court reserved costs.

Orders

Orders of the court

Subject to the following orders, the husband’s Applications in a Case filed 27 February 2015 and 30 March 2015, seeking a stay of the orders made 27 January 2015 be dismissed.

Paragraphs 2 and 3 of the property settlement order made on the 27 January 2015, be varied by deleting the words “within three (3) months from the date of these orders” and inserting instead the words “on or before 4 June 2015”, provided that the husband shall pay to the wife on or before 4 June 2015 an amount of interest calculated on the sum of $115,455 from 27 April 2015 to the date of payment, in accordance with the Family Law Rules 2004 (Cth).

It be a condition of the refusal of the stay in order 1 that the wife ensure that until the conclusion of the proceedings commenced by the husband’s Notice of Appeal filed 20 March 2015, or further agreement between the parties in writing:

3.1 The property at T Street, Suburb F (“the Suburb F property”), remain in the wife’s sole name as registered proprietor after it is transferred to her.

3.2 The wife not encumber the property by an amount of more than the sum of $650,000, subject to the further written agreement of the parties or further order of the court.

3.3 The wife occupy the property, and in the event she vacates the property, she is to give the husband written notice that she has done so and is not to allow anybody else to occupy the property for a period of 28 days after that written notice, and the husband has liberty on 14 days to apply to re-occupy the property on the basis that he pay the wife market rent for the Suburb F property.

3.4 The husband will pay to the wife the sum of $600 per week calculated from the 27 April 2015 to the date of him vacating the Suburb F property such sum to be paid at the same time as the payment of the amount pursuant to paragraph 2.1.3 of the property settlement order made 27 January 2015.

The husband is to inform the wife as to when he has obtained approval for finance that would allow him to comply with paragraphs 2.1.2, 2.1.3, and 2.1.4 of the property settlement order made on 27 January 2015.

Any application for enforcement of orders be filed within seven (7) days together with a supporting affidavit and listed on 27 April 2015.

I reserve both parties costs of today to be dealt with on 27 April 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.