Pellam and Valasco (No 2)

[2021] FCCA 1345

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

1. 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.

2. 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

3. 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.

4. 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.

5. The Husband then sought Orders from the Court seeking to set aside certain…