PANSHIN & FARMER - [2013] FamCAFC 10

FAMILY COURT OF AUSTRALIA

PANSHIN & FARMER

[2013] FamCAFC 10

FAMILY LAW – APPEAL – stay of orders – impending settlement of sale of property

Family Law Act 1975 (Cth)

Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
De L v Director-General, Department of Community Services (NSW) (1996) 136 ALR 201

APPELLANT:

Ms Panshin

RESPONDENT:

Ms Farmer

APPEAL NUMBER:

101

2012

FILE NUMBER:

SYC

2252

2011

DATE ORDERS MADE:

1 February 2013

DATE REASONS DELIVERED:

15 February 2013

PLACE DELIVERED:

Sydney

DATE HEARD:

1 February 2013

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 July 2012 and 8 October 2012

LOWER COURT MNC:

[2012] FMCAfam 691 and [2012] FMCAfam 1107

REPRESENTATION

FOR THE APPELLANT:

Ms Panshin in person

COUNSEL FOR THE RESPONDENT:

Mr Campton

SOLICITOR FOR THE RESPONDENT:

Stidwill Solicitors

Orders

The application for a stay of the settlement of the sale of the property at C be dismissed.
The appellant pay the respondent’s costs of and incidental to the application for a stay in the sum of $3,000, with such sum to be paid on finalisation of the property settlement proceedings between the parties.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 101 of 2012
File Number: SYC 2252 of 2011

MS PANSHIN

Appellant

And

MS FARMER

Respondent

REASONS FOR JUDGMENT

Introduction

On 1 February 2013 the appellant, Ms Panshin, sought an order that this Court stay the impending settlement of the sale of a property, the subject of orders by a Federal Magistrate. That application was refused and I indicated that reasons for the refusal would be delivered later. These are the reasons for the refusal to make the order sought.

Background

Some background to the application is helpful.
Proceedings for property settlement between the appellant and Ms Farmer (“the respondent”) were commenced in the Federal Magistrates Court and a hearing began in July 2012.
When it became apparent that the matter would not conclude, on 10 July 2012 the respondent sought interlocutory orders in relation to the occupation and sale of a property, jointly owned by the parties at C (“the property”). The appellant opposed that application. She sought, as a final order, that the title of the property be vested in her. The respondent sought orders for a sale of that property and a division of the net proceeds. The issue of property settlement remains to be determined in the resumption of the part heard proceedings.
The Federal Magistrate made orders for the sale of the property and further ordered that in the event that either party failed to do any act required to give effect to the sale, the respondent be appointed trustee for the sale of…

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 PANSHIN & FARMER

Details

AGLC: PANSHIN & FARMER [2013] FamCAFC 10
Case: [2013] FamCAFC 10
Decision Date: 1 February 2013

CaseChat Overview and Summary

The case of Panshin & Farmer involved an appeal against an order for the sale of a property. The appellant, Panshin, sought a stay of the sale pending the appeal, while the respondent, Farmer, argued against the stay. The matter was heard in the Supreme Court of New South Wales. The central dispute was whether the court should grant a stay of the sale of the property, which was scheduled to be settled between the parties.

The legal issues before the court included whether the appellant had demonstrated sufficient grounds to warrant a stay of the sale. The court needed to weigh the potential hardship to the appellant if the sale proceeded against the interests of the respondent and the importance of finality in property settlements. The court also had to consider the balance of convenience and whether there were any prospects of success on the merits of the appeal.

The court found that the appellant had not provided a compelling reason to justify a stay of the sale. It held that the appellant had not demonstrated any significant hardship that would result from the sale proceeding, nor had they shown a strong likelihood of success on the appeal. The court emphasised the importance of finality in property settlements and the need to protect the interests of the respondent. Consequently, the application for a stay was dismissed, and the appellant was ordered to pay the respondent’s costs of and incidental to the application.

Orders

Orders of the court

1. The application for a stay of the settlement of the sale of the property at C be dismissed.

2. The appellant pay the respondent’s costs of and incidental to the application for a stay in the sum of $3,000, with such sum to be paid on finalisation of the property settlement proceedings between the parties.

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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