FAMILY COURT OF AUSTRALIA
| MILLER AND ANOR & HARVEY AND ANOR | [2016] FamCA 265 |
| FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – where the applicant former solicitor for the wife seeks to stay the parties’ final property orders made by consent pending an appeal by the applicant – Discretionary exercise – stay application dismissed. |
| Family Law Act 1975 (Cth), s 90SM Family Law Rules 2004 (Cth), r 22.11 |
| Jackson & Balen [2009] FamCAFC 131 |
| APPLICANT: | Mr Miller & Mr Jeans (trading as Eddy & Miller – Melbourne) |
| FIRST RESPONDENT: | Ms Harvey |
| SECOND RESPONDENT: | Mr Bele |
| FILE NUMBER: | MLC | 10064 | of | 2012 |
| DATE DELIVERED: | 22 April 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 5 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr P. Indovino |
| SOLICITOR FOR THE APPLICANT: | In person |
| THE FIRST RESPONDENT: | In person |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms Harris |
| SOLICITOR FOR THE SECOND RESPONDENT: | Lampe Family Lawyers |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Leslie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kenna Teasdale Lawyers |
Orders
That paragraphs 3, 4, 5 and 6 of the Applicant’s Application in a Case filed 9 March 2016 are withdrawn.
That paragraph 2 of the Applicant’s Application in a Case filed 9 March 2016 and amended on 5 April 2016 is dismissed.
That the costs of the application be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller and Anor & Harvey and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10064 of 2012
Mr Miller & Mr Jeans (trading as Eddy & Miller – Melbourne)
Applicant
And
| Ms Harvey |
First Respondent
And
| Mr Bele |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is the former solicitor of the first respondent, brings an Application in a Case seeking that final property orders made by consent before me on the 3 March 2016 be stayed pending the hearing of an appeal. The final property orders were made pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
The applicant seeks to intervene in the proceedings as a creditor of the first respondent. The final property orders were part of final parenting and property orders made by consent. An Independent Children’s Lawyer represented the interests of the child who is aged 3 years and 8 months. The first and second respondents to the application are the mother and father who were the parties in the parenting and property proceedings listed before me for a pre-trial mention on 3 March 2016. There is no contractual relationship between the applicant and the second respondent father.
The application is opposed by the first and second respondents. The Independent Children’s Lawyer attended in response to the application…
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- Case
- [2016] FamCA 265
- Decision Date
CaseChat Overview and Summary
The court was required to determine the fate of specific claims made by the applicants within their originating application. The withdrawal of paragraphs 3, 4, 5, and 6, and the dismissal of paragraph 2, suggest that these were the operative claims or allegations that the court was asked to consider and rule upon.
The court's reasoning and the legal principles applied are not explicitly stated in the provided text. However, the orders themselves reflect a judicial determination that certain aspects of the applicants' case were no longer to proceed. The withdrawal of paragraphs indicates an action taken by the applicants, likely with the court's approval, to abandon those specific claims. The dismissal of paragraph 2 signifies a judicial decision to reject that particular claim.
Consequently, the court ordered that paragraphs 3, 4, 5, and 6 of the applicants' application filed on 9 March 2016 be withdrawn. Further, paragraph 2 of the applicants' application, as amended on 5 April 2016, was dismissed. The costs of the application were reserved.
Orders
Orders of the court
1.
That paragraphs 3, 4, 5 and 6 of the Applicant’s Application in a Case filed 9 March 2016 are withdrawn.
2.
That paragraph 2 of the Applicant’s Application in a Case filed 9 March 2016 and amended on 5 April 2016 is dismissed.
3.
That the costs of the application be reserved.
Background
Background to the litigation
Full text does not contain this section.
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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