Hendrix & Haroldson (No 2) [2025] FedCFamC1F 660 (18 September 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons for judgment were delivered orally and have been corrected from the recording.

1. By Notice of Appeal that was sealed on 28 May 2025, the applicant husband filed an appeal from final property orders made by me on 30 April 2025. That appeal has been determined. The appeal has been dismissed.
2. By an Application in a Proceeding filed on 6 June 2025, the husband seeks a stay of the final property orders pending determination of the appeal proceedings. As I say, the appeal proceedings have been determined.
3. The husband also seeks ancillary orders and also filed an Application in a Proceeding on 13 June 2025, seeking amongst other things, the appointment of a case guardian pursuant to rule 11.08 of an independent Country N language speaking Australian solicitor nominated by the court to be a case guardian for his father, Mr FF.
4. Both parties remain unrepresented.
5. The matter was adjourned from the first listing date at the request of Mr Hendrix. The matter came before me some weeks ago, but at the time the documents relied upon had not been served on Ms Haroldson. The matter was adjourned to today.
6. Both parties have the assistance of interpreters, and the interpreters have been assisting them during the proceedings today.

(a) Application in a Proceeding filed 6 June 2025;

(b) Two Affidavits of Mr Hendrix Ma filed 7 June 2025;

(c) Written submissions filed 1 September 2025.

(a) Response to an Application in a Proceeding filed 11 September 2025;

(b) Affidavit of Ms Hendrix filed 11 September 2025.

1. The wife does not seek any orders be made in circumstances where I had indicated to the wife that the appeal has been dismissed.

1. The husband commenced proceedings on 29 March 2021. The final hearing commenced on 28 November 2024 and was heard over five days in relation to both parenting and property matters.
2. There were a number of issues including whether the parties' property located at Suburb F, NSW was held on trust.
3. There were allegations of non-disclosure as an issue.
4. Final orders were made by me on 30 April 2025, and I ordered an adjustment of the property pool that was identified by way of 60 per cent to the husband and 40 per cent to the wife.
5. Pursuant to those orders, the husband was required to pay the wife the sum of $307,618.00 within 45 days (Order 31). In default of the payment, orders were made for the sale of the Suburb F property (Order 35), including orders for the parties to share in any changes in the sale price of the property.
6. The husband now seeks a stay of those property orders of the final orders made 30 April 2025 and specifically seeks a stay of the orders that dealt with not only the payment of the sum but the orders for the sale of the Suburb F property.
7. The orders are as follows:
   1. Within forty-five (45) days from the date of these Orders, the applicant husband ("the husband") shall pay to the respondent wife ("the wife") by way of cleared funds the sum of $307,618.00.

32. Simultaneously with the husband's compliance with Order 31 hereof:

(a) The wife shall:

(i) Do all things and sign all documents to resign from all positions that she may hold in the company [B] Pty Limited.

(ii) Do all things and sign all documents necessary for the wife transfer to the husband all share holdings and interest held by her in the company [B] Pty Ltd.

(iii) Otherwise relinquish any right, title or interest in either [B] Pty Limited, and in the businesses [C Pty Ltd], [D Business] and the [Hendrix's] Family Trust.

(b) The husband shall indemnify the wife and keep her forever indemnified in relation to any liability howsoever arising, including any liability for personal income tax, with respect to the following:

(i) [B] Pty Limited;

(ii) [C Pty Ltd];

(iv) The [Hendrix's] Family Trust.

1. In the event that the husband fails to make the payment referred to in Order 31 within the time stipulated, then the husband shall, within seven (7) days do all things and sign all documents reasonably necessary to sell the [Suburb F] Property for the best price reasonably obtainable and the following orders shall apply:

(a) The husband shall list the [Suburb F] property for sale with an agent as agreed, and in the absence of agreement as selected by the husband from a list of three agents provided by the wife ("the agent");

(b) The husband shall instruct a lawyer as agreed, and in the absence of agreement as selected by the husband from a list of three lawyers provided by the wife, to have carriage of the sale for the parties ("the conveyancing solicitor");

(c) The husband shall list the [Suburb F] property for public auction within six (6) weeks of the appointment of the Agent ("the first auction");

(d) The reserve price for such auction shall be as agreed and in the absence of agreement shall be as set by a valuer as agreed between the parties and failing agreement appointed in accordance with Order 36;

(e) If the [Suburb F] property remains unsold after the first auction, the husband shall do all acts and things and sign all documents necessary to immediately relist the [Suburb F] property for sale by public auction again, on a date nominated by the agent and at such auction there shall be no reserve price unless otherwise agreed by the parties in writing;

(f) The husband shall irrevocably authorise and direct the appointed lawyer, agent and

(i) Communicate with and provide the wife with any update she may request in respect of the progress of the sale, inform her of any issues which have arisen and provide her with copies of the contract for sale and any proposed or final settlement statement; and

(ii) Pay the amount to the wife as required by these Orders at the time of settlement and before any distribution to the husband in accordance with Order 36.

1. If the parties are unable to agree as to the listing price or sale price of the [Suburb F] property, then they shall appoint a valuer nominated by the president for the time being of the New South Wales Division of the Australian Property Institute or his/her nominee on the application of either party to determine the market value of the [Suburb F] property and:

(a) In the case of the listing price of the [Suburb F] property the parties shall list the [Suburb F] property for sale at a price not more than 10 per cent higher than the value so determined; and

(b) In the case of the sale price shall accept any offer to purchase the [Suburb F] property at that price or higher.

(c) In the event that a valuer is appointed by the parties pursuant to the above order then the parties shall pay the costs thereby incurred in equal shares.

1. Pending the sale of the [Suburb F] property, the following terms and conditions shall apply:

(a) The husband shall be responsible for payment of the mortgage repayments and any interest, charges and penalties in favour of [H] Pty Ltd. Number [...] as and when they fall due and if in default of this Order, the amount of such default shall be deducted from his entitlement pursuant to these orders.

(b) The husband shall be responsible for all municipal rates assessments, taxes, insurances, statutory charges and other outgoings relating to the [Suburb F] property and if in default of this Order, the amount of such default shall be deducted from his entitlement pursuant to these orders.

(c) The husband shall pay such funds as are necessary to discharge the liability in favour of [G Financial Services] Limited and in default, that payment shall be deducted from the balance of funds to be paid to the husband in accordance with Order 38(j)

(d) The husband shall make the [Suburb F] property available for inspection by prospective purchasers at all reasonable times and on reasonable notice from any real estate agent appointed to sell the [Suburb F] property.

(e) The husband will keep the [Suburb F] property clean and tidy and in a good state of repair and make a key available to any real estate agent appointed to affect such sale.

(f) The husband shall have the sole right to occupy the [Suburb F] property.

1. On the settlement of the sale of the [Suburb F] property, the husband shall cause the proceeds of sale to be paid in the following manner and priority:

(a) Agent's and Auctioneer's costs and advertising expenses,

(b) To discharge the Mortgage in favour of [H] Pty Ltd. Number [...],

(c) Such funds so as invoiced by the conveyancing solicitor for their services,

(d) Such funds as invoiced by the appointed taxation agent for their services,

(e) Such funds to the Australian Taxation Office, as recommended by the appointed taxation agent so to discharge the Capital Gains Tax liability accrued on the [Suburb F] property.

(f) The sum of $8,064 to [Region K] Council;

(g) The sum of $6,000 to Sydney Water;

(h) The sum of $3,138 to Energy Australia;

(i) To the wife pay an amount calculated as follows:

$(40% x X) - Y

where:

X = the value of the total net assets and superannuation as determined by the Court plus the net proceeds of sale of the [Suburb F] property after the payments required by Orders 38(a) to 38(h)

Y = $113,980 being the value of the assets to be retained by the wife; and (j)

(j) The balance to the husband.

1. In the event that the [Suburb F] property is sold in accordance with these orders a taxation agent as agreed and in the absence of agreement as selected by the husband from a list of three taxation agents provided by the wife, is to be appointed to represent the vendors of sale of the property for the purpose of assessing the Capital Gains Tax Liability, if any, to be applied to the [Suburb F] property.
2. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(c) With respect to debts and liabilities, whether past, present or future, as are in the sole name of the wife or husband, neither the wife nor the husband will seek contribution from, or indemnity by the other, with respect to such debts and liabilities;

(d) Except as otherwise provided herein, each party hereby release the other from liabilities or claims owing from one to the other.

1. More particularly, the husband is to retain the following property and liabilities, not already referred to:

(b) [B] Pty Ltd;

(d) Any interest in any business in his name,

(f) The [Motor Vehicle 1] in his possession,

(j) Any other vehicles and machinery in his possession, regardless of condition or saleability,

(k) Any interest in any property in [Country N],

(l) Any liability in his name in favour of [Suburb O] Council,

(m) Any liability, penalties or interest in his name or in respect of [B] Pty Ltd in respect of the Australian Taxation Office,

(n) Any liability, penalties or interest in his name in favour of Centrelink;

(o) Any and all liabilities accrued to any institution by way of credit cards in his name or any other entity to which he has an interest,

(p) Any and all liabilities, and purported liabilities in favour of any or the husband's family members, including in favour of his father, sister and brother-in-law and

(q) All liabilities accrued in the husband's name through the Higher Education Contributions Scheme, the Higher Education Loan Program, the Student Start-up Loans program or any other educational finance facility.

1. In the event of the wife or husband refusing or neglecting to sign the necessary documents to effect such sale, transfer or assignment within seven (7) days of being requested by a party, then the Registrar of the Federal Circuit and Family Court of Australia is hereby appointed and empowered pursuant to the provisions of s 106A of the Family Law Act 1975 (Cth), to execute such documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to such document and further, that the defaulting party pay the costs on an indemnity basis in relation to the obtaining of the Registrar's signature.

1. The appeal that was lodged by the husband was listed for determination before the Full Court on 26 August 2025. The appeal has been dismissed.

1. A stay of orders pending an appeal is a discretionary power of the Court which is to be determined on its merits (see r 13.12(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules")).
2. In Kaplan & Hankel (No 2) [2025] FedCFamC1F 210, Schonell J sets out that:
   1. A stay is not ordered as a matter of right. The power to order a stay is incidental to the right of appeal.
   2. In order to justify a stay, the party seeking the stay bears the onus to establish that the circumstances warrant a departure from the general rule that a judgment is presumed to be correct and liable to be enforced (Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 at 693-694) and a court should not deprive a successful litigant of the fruits of litigation without just cause (Kelly and Kelly [1980] FamCA 88; (1981) FLC 91-007).
3. As I have said several times already, the appeal has been dismissed.
4. The relevant considerations in the determination of stay applications for property proceedings are well settled and have been articulated in the Full Court decisions of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 ("Aldrige & Keaton") at [18] and Trahn & Long (No 2) (2008) FamCAFC 194 at [38]. The considerations include:
   • the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;
   • a person who has obtained a judgment is entitled to the benefit of that judgment;
   • a person who has obtained a judgment is entitled to presume the judgment is correct;
   • the mere filing of an appeal is insufficient to grant a stay;
   • the bona fides of the applicant;
   • a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
   • a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a stay;
   • some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case; and
   • the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time.
5. Mr Hendrix's written submissions filed 1 September 2025 helpfully identified those matters identified by the Full Court as above.

1. In this matter, the application for a stay is otiose. The Court of Appeal has finally determined the issue in relation to the appeal and the appeal has been dismissed.
2. Adopting the principles as outlined in Aldridge & Keaton, the wife is entitled to the fruits of the litigation.
3. The husband has today indicated that on 16 September 2025, he has filed a fresh application in this Court seeking property orders pursuant to section 79A of the Family Law Act 1975 (Cth). That is an application that was filed in the last 2 days. It is an application that Mr Hendrix says was served on the wife, however the wife says she has received that material together with some detailed written submissions prepared only today.
4. Mr Hendrix tells me that the matter that has been filed has been allocated a First Return date of 4 November 2024.
5. That matter is not before me today.
6. It is appropriate that Ms Haroldson has the opportunity to seek legal advice and files any responding material to that application and that she is given a proper opportunity to do that.
7. Mr Hendrix made an oral application to amend his application to seek a stay arising from this new section 79A application. I refused to grant the leave to make an application orally because it would be procedurally unfair for Ms Haroldson to have to respond without having a proper opportunity to consider the merits of the application, nor to seek legal advice.
8. On that basis, the Application in a Proceeding filed on 6 June 2025 is dismissed and I note the Application in a Proceeding filed 13 June 2025 is dismissed.
9. In the response material filed by Ms Haroldson, she set out a series of orders sought including that the court issue a subpoena to YY Pty Ltd, that the applicant be directed to provide full and frank disclosure and the applicant's stay of orders be dismissed.
10. There is no basis upon which I would make any order for the issue of subpoena or make any direction in relation to disclosure, in circumstances where the matter has been finally determined and orders have been made.
11. There may be matters that are raised if the section 79A application proceeds, but otherwise the matters before me today are dismissed.
12. I note that both parties are representing themselves in relation to this matter and according to section 117 of the Act under the previous iteration of the property legislation which deals with the issue of costs.
13. The primary and starting position is that each party should pay their own costs. In circumstances where the parties are unrepresented and have not incurred legal costs, it is not appropriate to make any orders for legal costs.
14. I note that each party is to pay their own costs.
15. I will issue orders accordingly.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran.