Telfer and Strahan

[2013] FCCA 1780

FEDERAL CIRCUIT COURT OF AUSTRALIA

TELFER & STRAHAN [2013] FCCA 1780

Catchwords:
FAMILY LAW – Property – matrimonial home – stay of orders.

Legislation:  

Family Law Act 1975

Senior & Anderson (No.2) [2012] FamCA 880
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220
Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685
Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681
Clemett & Clemett (1981) FLC 91-013
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

Applicant: MR TELFER

Respondent: MS STRAHAN

File Number: CAC 436 of 2012

Judgment of: Judge Riethmuller

Hearing dates: 14 June 2013, 17 June 2013 and 24 June 2013

Date of Last Submission: 24 June 2013

Delivered at: Melbourne

Delivered on: 24 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Hill

Solicitors for the Applicant: Elizabeth Fleming & Associates

Counsel for the Respondent: Mr Stavris

ORDERS

1. The stay in order 2 of the Orders dated 17 June 2013 be extended to 3 July 2013 at midday.

2. The Application in a Case filed 13 June 2013 be otherwise dismissed.

3. There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Telfer & Strahan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

CAC 436 of 2012

MR TELFER

Applicant

And

MS STRAHAN

Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an Application in a Case filed by the Husband on 13 June 2013 seeking that:

   1. That the orders made by Judge Riethmuller on 29 May 2013 be stayed pending the appeal which the applicant has filed with the Family Court of Australia (file number SOA 32/2013).

   2. That there be no order as to costs.

2. The Orders made on 29 May 2013 flowed from the Wife’s original application for enforcement or variation of property orders. An ex tempore judgment was given. In summary the orders made:

   1.Appointed the Wife as trustee for the sale of the former matrimonial property;

   2.Ordered that the Husband vacate the property within 14 days;

   3.Provided that should the Husband fail to vacate within the required 14 days, a warrant for possession issue; and

   4.Provided that in the event the Husband does not comply with the Orders, the Principal Registrar of the Federal Circuit Court be appointed pursuant to s.106A of the Family Law Act 1975 to sign the documents on his behalf.

3. The Applicant also filed an Affidavit on 13 June 2013 in support of the Application in a Case. The Applicant’s evidence at paragraph 7 of the affidavit is that if a stay is not granted by the Court then the following prejudice will be suffered:

   a. Potential dissipation of assets,

   b. being solely responsible for the mortgage repayments for the real property, and debts associated…