RESPONDENT ORDERED BY THE COURT TO SELL THE PROPERTY WHERE SHE CURRENTLY LIVES ASKS FOR A STAY ORDER
Daultrey & Tavener (No.2) [2020] FCCA 2885 (22 October 2020)
This case is an Application by Respondent for a stay of the March 2020 Order regarding the sale of a certain property.
Facts:
The Respondent seeks a stay on any Orders made pursuant to the Applicant’s Application in a Case, filed 7 August 2020, because that Application in a Case refers to the March 2020 Orders, it is tantamount to a stay of those interim property Orders regarding the sale of certain properties. In this instance, the relevant property is where the Respondent currently lives.
Counsel for the Respondent submitted that because the Orders in March 2020 were interim, there was no prohibition or other reason why the Court could not (and presumably, should not) re-visit those earlier Orders. He also submitted that it was appropriate to do so because there had been a genuine or significant change in circumstances.
Applicant submitted that there was, in fact, no substance in the Respondent’s arguments and that all matters now raised were essentially the same as those ventilated at the interim hearing in October 2019, and upon which the Court pronounced Orders and delivered reasons in March 2020.
Issue: Should the Stay Order be granted?
Law:
Analysis:
First, the abject lack of independent evidence from, as well as the sweeping but unsupported statements by, Ms Tavener, give the Court no relevant evidentiary basis to interfere with or to vary the Orders made on 11 March 2020.
To interfere with an earlier decision is:
(a) a rare and extraordinary exercise of the Court’s function, and
(b) requires relevant evidence to do so. Here there is no such evidence.
Secondly, not only is there a singular lack of independent evidence, there have been multiple opportunities for Ms Tavener to provide independent evidence, especially regarding her financial circumstances, but she has not done so. Although the judgment in March 2020 was an interim one, there have been many opportunities for her in the months since to provide evidence. She has not done so. As such the conclusions reached in the March 2020 judgment must remain undisturbed.
Pursuant to previous Orders, and repeated here, pursuant to s.106A of the Family Law Act 1975, the Registrar is immediately to sign a transfer for the said property. The net proceeds of sale are to be distributed as per the previous Orders of the Court. The March 2020 Orders in relation to any of the parties’ other properties are also to be enforced, with the assistance of the Registrar, pursuant to s.106A of the Act if necessary.
Conclusion: The application by the respondent seeking a stay order be dismissed.
