Nixon and Nixon (No 2)

FAMILY COURT OF AUSTRALIA

NIXON & NIXON (NO 2) [2012] FamCA 964

FAMILY LAW – Stay pending appeal against enforcement orders.  No merit shown despite probable nugatory effect.  Application dismissed.  Indemnity costs order.

Family Law Act 1975 (Cth)

Bryant & The Commonwealth of Australia [1996] HCA 3
Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225
Federal Commissioner of Taxation v Myer Emporium Limited (1986) 60 ALJR 300
Fingleton v R [2005] HCA 34
House v R [1936] HCA 40
Jennings Construction Limited v Burgundy Royal Investments Proprietary Limited (1986) 161 CLR 681
Kelly & Kelly (1981) FLC 91-007
McCabe v British American Tobacco [2002] VSC 172
Molier & Van Wyk (1981) FLC 91-001
PetroTimor Companhia de Petroleos SARL v the Commonwealth of Australia [2003] FCAFC 83

APPLICANT: Mr Nixon

RESPONDENT: Ms Nixon

FILE NUMBER: MLC 2061 of 2009

DATE DELIVERED: 7 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 November 2012

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr Vadarlis

SOLICITORS FOR THE RESPONDENT: Vadarlis & Associates

Orders

1. That the application in a case filed by the husband on 2 November 2012 is dismissed.

2. That the husband pay the wife’s costs on an indemnity basis in relation to this application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nixon & Nixon 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 2061 of 2009

Mr Nixon

Applicant

And

Ms Nixon

Respondent

REASONS FOR JUDGMENT

1. On 19 October 2012, Dessau J made orders after four days of hearing about the enforcement of property orders.  On 1 November 2012, Mr Nixon, to whom I shall refer as the husband, filed a notice of appeal and paid the filing fee of $1004.  The appeal is therefore still pending. 

2. On 2 November 2012 the husband filed an application in a case, seeking a stay of the immediate execution of a warrant ordered by Dessau J, pending his appeal being heard.  His application sought orders in the alternative that the execution of the orders which required him to vacate a house for the purposes of its sale, be stayed until 4 January 2013.

3. The stay application was listed before me on 5 November 2012, because Dessau J was not in the Registry.  Provision for that is provided under the Family Law Rules. 

4. The husband represented himself and Mr Vadarlis, the solicitor for the wife, appeared for her.  Although the wife had not filed a response, because of the urgency, the execution of the order being later this week, I indicated I would hear submissions from both parties and also read the husband’s evidence.  The wife opposed the stay.  I have contemplated the matter over 48 hours and had the opportunity to read, not only the husband’s documents but also her Honour’s judgment.

5. After considering all of that, the…