Henson & Marlin (No 5)

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Henson & Marlin (No 5) [2024] FedCFamC1F 908

File number(s):

BRC 10186 of 2020

Judgment of:

HOGAN J

Date of judgment:

20 December 2024

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant sought a stay of final orders pending hearing of his appeal – Where compliance with the final order has the real risk of rendering the appeal nugatory –Where a conditional stay is granted pending appeal – Where orders are made for the applicant to ensure the removal of unlawful occupants from a property subject of the final orders, and for the applicant to secure the property and provide proof of that to the respondent’s legal representatives – Where the applicant is to pay the respondent weekly spousal maintenance – Where the applicant is restrained from dealing with property  

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Aldridge & Keaton [2009] FamCAFC 106

Division:

First Instance

Number of paragraphs:

38

Date of hearing:

20 December 2024

Place:

Brisbane

Counsel for the Applicant:

Mr Hackett of Counsel

Solicitor for the Applicant:

Hirst & Co

Counsel for the Respondent:

Mr Drysdale of King’s Counsel

Solicitor for the Respondent:

KLM Solicitors

ORDERS

BRC 10186 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MARLIN

Applicant

AND:

MS HENSON

Respondent

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	20 DECEMBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.Orders, 1, 2, 3, 4, 7, 11, 12 and 14 of the Final Orders made on 25 October 2024 are stayed pending the determination of the Amended Notice of Appeal filed by Mr Marlin on 18 December 2024, on the conditions that:

(a)within forty-eight (48) hours, Mr Marlin take all necessary steps to:

(i)ensure the removal of all unlawful occupants of the real property situated at 2 DD Street, Suburb FF; and thereafter

(ii)secure the real property at 2 DD Street, Suburb FF; and

(iii)provide Ms Henson’s legal representatives with confirmation, by way of photographs, that this has occurred.

(b)Mr Marlin pay Ms Henson the sum of $553 per week by way of periodic spousal maintenance, with the first payment to be made on 21 December 2024 into an account nominated by Ms Henson and with such sum to be paid each Saturday thereafter; and

(c)Mr Marlin be restrained and an injunction issue restraining him from:

(i)encumbering any real property/ies owned by him personally, or taking any steps to cause any corporate entity under his control to encumber any real property, without the prior written consent of the respondent; and

(i)giving any notice or seeking or consenting to any order, either in his personal capacity or in his capacity as a director of any entity (either in relation to that entity itself or in its capacity as corporate trustee of any trust), that affects any real property/ies; and

(ii)making any agreement, either in his personal capacity or…