Gull and Gull (No. 2)

[2008] FamCA 439

FAMILY COURT OF AUSTRALIA

GULL & GULL (NO. 2) [2008] FamCA 439

FAMILY LAW – ORDERS - Stay
FAMILY LAW – PROPERTY

Family Law Act 1975 (Cth)

APPLICANT: Mr Gull

RESPONDENT: Ms Gull

FILE NUMBER: MLF 2723 of 2004

DATE DELIVERED: 16 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 16 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

UPON THE UNDERTAKING of the wife given in person this day in Court that she will abide any order for damages which the Court finds arise to the husband as a result of these orders:

1. The orders made on 19 March 2008 be and are hereby stayed both as to application and execution until determination of the wife’s appeal against those orders to the Full Court of the Court.

2. Until determination of the appeal or further order the parties be and are hereby authorised to draw on Westpac Account Number …4 in the name of the husband for the purpose of meeting outgoings on mortgages registered on the following properties in the stated amounts:

   a.as to the former matrimonial home $738 per month; and

   b.as to the property known as and situated at B $1000 per month.

3. All questions of costs of this application be reserved to the Full Court.

4.General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Gull and Gull is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 2723 of 2004

MR GULL

Applicant

And

MS GULL

Respondent

REASONS FOR JUDGMENT  

1. On 19 March 2008 I delivered judgment as a result of proceedings for alteration to property interests between the parties.  The wife has filed a notice of appeal against those orders in respect of which there is a directions hearing in a few weeks' time and I would anticipate the appeal being heard by the Full Court in the last few months of this year.

2. The wife has now applied for a stay of my orders pending the appeal.  One of the major issues in the substantive proceedings was the question of whether a significant proportion of the assets which are invested in India in cash reserves should be repatriated to Australia.  The wife strenuously opposed such an order during those proceedings.  I found against her on that proposition. 

3. The stay application came before me a few weeks ago and had to be adjourned so that further material could be filed on behalf of the respondent husband.  There has been considerable discussion this morning about terms and conditions of the stay but ultimately the husband, through his counsel, has conceded that it is appropriate that the stay be granted in respect of all the orders, a position with which I agree because otherwise, there would be a significant risk of depriving the wife of the potential fruits of a successful judgment of the Full Court were she to succeed on the appeal.

4. In those circumstances, it was only a question of two particular issues which have been submitted should be conditions of the granting of the stay.  The first of those is the usual undertaking as to damages by the wife which, after some discussion, she has agreed to give, and I will be ordering accordingly. 

5. The second and remaining issue then is the payment of the mortgages on the two pieces of real estate which were the subject of the proceedings.  The first of those is the former matrimonial home, now occupied by the wife and the child of the marriage.  The repayments for that are $738 per month, but the second property is at B, it is an investment property, which I found in my judgment had a negative value, as being overcapitalised. The payments for that property are a little over $1600 per month.

6. It is common ground that there is an account in the name of the husband with the Westpac Bank which has a little more than $15,000 in it and which has previously been used for the payment of the outgoings on the mortgages on the property.  An order made by Registrar Field on 17 May 2007 authorised withdrawals from that account to meet the respective mortgages to a cap of $10,000.  It is now put on behalf of the husband that the $10,000 cap has been reached and accordingly the order has lapsed. 

7. It is now submitted on behalf of the husband that the fund should continue to be drawn upon for the purpose of the mortgage.  That is opposed by the wife, who latterly suggested that perhaps an equal amount should be drawn for each party.  The wife is not in paid employment outside the home.  The husband is earning a little over $900 per week.  He has remarried with a small child.  I think it is reasonable for both parties to receive moneys from that.  Given the balance of the mortgage which is much higher in respect of B property, there will be an authorisation for borrowing of $738 per month on the former matrimonial home and borrowing of $1000 per month in respect of B property.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  25 Nov. 08