FEDERAL CIRCUIT COURT OF AUSTRALIA
Pellam & Valasco (No 2) [2021] FCCA 1345
File number(s): PAC 6127 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 18 June 2021 Catchwords: FAMILY LAW – Husband’s stay applications relating to Orders enforcing final consent property adjustment Orders – stay applications dismissed subject to one stay Order proposed by Wife Legislation: Federal Circuit Court Rules 2001 r 16.05(2)
Family Law Rules 2004 r 22.11(2)
Family Law Act 1975 (Cth) s 79A
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92-194
Number of paragraphs: 61 Date of last submission/s: 15 June 2021 Date of hearing: 15 June 2021 Place: Parramatta The Applicant Father appeared in person Solicitor for the Respondent: Ms Bonthorne ORDERS
PAC 6127 of 2018 BETWEEN: MS PELLAM
Applicant
AND: MR VALASCO
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.That Order 1(e) of the Federal Circuit Court of Australia at Parramatta made on 28 January 2020 be stayed and the proceeds of sale be held in the trust account of the Wife’s solicitors Mathews Dooley & Gibson pending the determination of the appeal of Mr Valasco filed on 1 June 2021.
2.That the Application in a Case filed 2 June 2021 of the Husband is otherwise dismissed.
.Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Pellam & Valasco (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This is the determination of the Husband’s Application for a stay of property related Orders made by this Court on 14 May 2021. This Application is resisted by the Wife subject to one Order, referred to below.
Essentially, through the Husband’s present stay Applications, he seeks to remain living in the former matrimonial home (hereinafter referred to as the property) and avoid ejection, and seeks to avoid the property being sold pursuant to consent property adjustment Orders made on 28 January 2020.
BACKGROUND
On 28 January 2020, the parties, then legally represented, and appearing at Court, requested the Court to make property Orders in accordance with signed proposed consent Orders and the Court made Orders in accordance with those proposed consent Orders. Thereafter, the Wife instituted enforcement proceedings in accordance with those Orders, in view of the Husband refusing to leave the property, so as to allow the property to be sold in accordance with the Orders.
The Court made enforcement related Orders, as sought by the Wife, ultimately leading to the Court issuing a warrant for possession and authorising an enforcement officer to eject the Husband from the property.
The Husband then sought Orders from the Court seeking to set aside certain…
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CaseChat Overview and Summary
The central legal issues before the Court were whether to grant the Husband's applications for stays of the property adjustment orders, and alternatively, whether to grant the Wife's application for a stay of the order relating to the proceeds of sale of the former matrimonial home. The Court was required to consider the principles governing applications for stays of judgments, particularly in the context of appeals, and to weigh the competing rights and interests of the parties.
The Court applied established legal principles for stay applications, noting that the onus rests on the applicant to establish a proper basis for the stay, though not necessarily special or exceptional circumstances. Key considerations included the entitlement of a party to the benefit of a judgment, the presumption of its correctness, and that the mere filing of an appeal is insufficient. The Court also considered the bona fides of the applicant, the balance of convenience, the risk of the appeal being rendered nugatory, a preliminary assessment of the appeal's strength, and the desirability of limiting changes to living arrangements.
The Court ordered that Order 1(e) of the Federal Circuit Court of Australia's orders of 28 January 2020 be stayed, with the proceeds of sale to be held in trust by the Wife's solicitors pending the determination of the Husband's appeal. The Husband's other stay applications were dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. That Order 1(e) of the Federal Circuit Court of Australia at Parramatta made on 28 January 2020 be stayed and the proceeds of sale be held in the trust account of the Wife’s solicitors Mathews Dooley & Gibson pending the determination of the appeal of Mr Valasco filed on 1 June 2021.
2. That the Application in a Case filed 2 June 2021 of the Husband is otherwise dismissed.
.Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Pellam & Valasco (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
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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