Hewitson and Tierney - [2019] FamCA 720

FAMILY COURT OF AUSTRALIA

HEWITSON & TIERNEY

[2019] FamCA 720

FAMILY LAW – PROPERTY – 79A application – Stay application – Stay on terms.

Family Law Act 1975 (Cth) s 79, 79A, 114(3)

APPLICANT:

Mr Hewitson

RESPONDENT:

Ms Tierney

FILE NUMBER:

SYC

8162

2018

DATE DELIVERED:

20 June 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

19 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fowler

SOLICITOR FOR THE APPLICANT:

Robertson Saxton Osborne

COUNSEL FOR THE RESPONDENT:

Mr Gardiner

SOLICITOR FOR THE RESPONDENT:

Dettmann Longworth Lawyers

Orders

The wife’s application for a stay of orders made 17 January 2019 is dismissed.
The wife is injuncted and restrained from selling, transferring, mortgaging or in any way encumbering or otherwise dealing with the property situate at and known as C Street, Suburb B being the land described in Folio Identifier …, without first providing to the husband not less than 42 days’ notice of her intention to do so.
Orders 4(iii) g & h, 4(iv), 4(v) g & h, 6, 7g & h, 8 and 9 of Orders made on 17 January 2019 are stayed pending further Order.
These Orders will be stayed insofar the husband is not required to sell his vested and unvested D Company employee shares.
In the event the husband chooses to sell his vested and unvested D Company employee shares the orders will become operative and he will give the wife 14 days’ written notice of his intention to sell same.
Orders 6, 7, 8 and 9 of Orders made on 17 January 2019 will become operative in the event the husband’s employment with D Company ceases.
If the husband’s employment with D Company ceases he is to provide the wife 14 days’ notice of same and will provide her with details of any new employment forthwith.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hewitson & Tierney has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8162 of 2018

Mr Hewitson

Applicant

And

Ms Tierney

Respondent

REASONS FOR JUDGMENT

This is an oral judgment in the matter of Hewitson and Tierney, is an application by the husband to set aside consent orders made on 17 January 2019 pursuant to an application for orders to be made lodged with the Court on 18 December 2018.
The evidence that is relied upon in the application is as follows:
a)For the husband:
i)Amended initiating application filed 6 June 2019;
ii)Affidavits filed 6 June 2019…

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 Hewitson and Tierney

Details

AGLC: Hewitson and Tierney [2019] FamCA 720
Case: [2019] FamCA 720
Decision Date: 20 June 2019

CaseChat Overview and Summary

In the matter of *Hewitson and Tierney*, Henderson J considered an application by the wife for a stay of certain orders made on 17 January 2019, and also sought to injunct the husband from dealing with a specific property. The dispute concerned the division of property and the enforcement of prior court orders.

The primary legal issues before the court were whether to grant a stay of some of the previous orders, and whether to impose an injunction on the wife regarding a particular property. The court also had to determine the conditions under which certain orders concerning the husband's employment and company shares would become operative or remain stayed.

Henderson J dismissed the wife's application for a stay of all the orders made on 17 January 2019. However, the court granted a partial stay of specific orders relating to the sale of the husband's company shares, pending further order. The wife was injuncted from dealing with the property at C Street, Suburb B, without providing the husband with 42 days' notice. The court also made provision for the operative effect of certain orders concerning the husband's shares and employment, including notice requirements, should specific events occur.

Orders

Orders of the court

The wife’s application for a stay of orders made 17 January 2019 is dismissed.

The wife is injuncted and restrained from selling, transferring, mortgaging or in any way encumbering or otherwise dealing with the property situate at and known as C Street, Suburb B being the land described in Folio Identifier …, without first providing to the husband not less than 42 days’ notice of her intention to do so.

Orders 4(iii) g & h, 4(iv), 4(v) g & h, 6, 7g & h, 8 and 9 of Orders made on 17 January 2019 are stayed pending further Order.

These Orders will be stayed insofar the husband is not required to sell his vested and unvested D Company employee shares.

In the event the husband chooses to sell his vested and unvested D Company employee shares the orders will become operative and he will give the wife 14 days’ written notice of his intention to sell same.

Orders 6, 7, 8 and 9 of Orders made on 17 January 2019 will become operative in the event the husband’s employment with D Company ceases.

If the husband’s employment with D Company ceases he is to provide the wife 14 days’ notice of same and will provide her with details of any new employment forthwith.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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