Pillai and Doshi (No 5) - [2011] FamCA 594

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (NO 5)

[2011] FamCA 594

FAMILY LAW - ORDERS – Stay – Application for a stay of final parenting and property orders – Application and Amended Application for a stay pending appeal dismissed
FAMILY LAW - PRACTICE AND PROCEDURE – Institution of proceedings – Application for re-instatement of stay application – Application dismissed due to non-appearance of the applicant husband with leave to re-institute the application – Where the respondent wife consented to reinstatement – Reinstatement allowed
FAMILY LAW - ORDERS – Where the applicant husband sought an order for the partial payment of his property and financial entitlement pursuant to the final orders of 8 March 2011

FAMILY LAW - COSTS - Circumstances justifying order – Where the hearing was required due to the husband’s conduct and the wife was not unsuccessful – Order for costs made in favour of the respondent wife

Child Support (Registration and Collection) Act 1989 (Cth), s 72A
Family Law Act 1975 (Cth), s 117

APPLICANT:

Mr Pillai

RESPONDENT:

Ms Doshi

FILE NUMBER:

DGC

664

2007

DATE DELIVERED:

26 July 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

26 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms McCreadie

SOLICITOR FOR THE RESPONDENT:

Perry Weston

ORDERS

IT IS ORDERED BY CONSENT:

THAT the husband’s Application filed 1 June 2011 be reinstated.

IT IS FURTHER ORDERED NOT BY CONSENT:

THAT the husband and wife give all necessary instructions and do all acts and things to effect a payment of $11,000 to the husband from the joint account held in the names of the parties with the Commonwealth Bank at …, BSB … … within three (3) working days and that such monies are received by him as a partial payment of his final property and financial entitlements as ordered on 8 March 2011.
THAT the husband pay the wife’s costs of and incidental to the appearance of her Counsel at Court this day such costs being fixed in the sum of $1,000 and to be paid prior to any distribution of monies to be made to the husband pursuant to Order 1(iv) and Order 2 of the Orders pronounced 8 March 2011.
THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.
THAT the husband’s Application filed 1 June 2011 and the amended Application filed 13 July 2011 be otherwise dismissed.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of Counsel appearing for the wife.

IT IS NOTED that publication of this judgment under the pseudonym Pillai & Doshi (No 5) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 664 of 2007

Mr Pillai

Applicant

And

Ms Doshi

Respondent

REASONS FOR JUDGMENT

This…

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 Pillai and Doshi (No 5)

Details

AGLC: Pillai and Doshi (No 5) [2011] FamCA 594
Case: [2011] FamCA 594
Decision Date: 26 July 2011

CaseChat Overview and Summary

In *Pillai and Doshi (No 5)*, Young J of the Family Court of Australia considered an application by the husband for the reinstatement of a stay application concerning final parenting and property orders made on 8 March 2011. The husband also sought a partial payment of his property and financial entitlement under those final orders. The wife consented to the reinstatement of the stay application.

The primary legal issues before the court were whether to reinstate the husband's application for a stay of the final orders, and whether to grant an order for a partial payment of the husband's property entitlement. The court also had to determine the appropriate costs order.

Young J, by consent, ordered the reinstatement of the husband's application filed on 1 June 2011. However, not by consent, the court ordered that $11,000 be paid to the husband from the parties' joint Commonwealth Bank account within three working days, as a partial payment of his final property and financial entitlements. The husband's applications filed on 1 June 2011 and 13 July 2011 were otherwise dismissed. The court also ordered the husband to pay the wife's costs of the appearance fixed at $1,000, to be paid prior to any distribution of monies to the husband under the final orders. The court certified that the matter reasonably required the attendance of counsel for the wife.

Orders

Orders of the court

IT IS ORDERED BY CONSENT:

THAT the husband’s Application filed 1 June 2011 be reinstated.

IT IS FURTHER ORDERED NOT BY CONSENT:

THAT the husband and wife give all necessary instructions and do all acts and things to effect a payment of $11,000 to the husband from the joint account held in the names of the parties with the Commonwealth Bank at …, BSB … … within three (3) working days and that such monies are received by him as a partial payment of his final property and financial entitlements as ordered on 8 March 2011.

THAT the husband pay the wife’s costs of and incidental to the appearance of her Counsel at Court this day such costs being fixed in the sum of $1,000 and to be paid prior to any distribution of monies to be made to the husband pursuant to Order 1(iv) and Order 2 of the Orders pronounced 8 March 2011.

THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

THAT the husband’s Application filed 1 June 2011 and the amended Application filed 13 July 2011 be otherwise dismissed.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of Counsel appearing for the wife.

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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