FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bacchia & Bacchia [2024] FedCFamC2F 205
File number(s): MLC 6588 of 2023 Judgment of: JUDGE SYMONS Date of judgment: 21 February 2024 Catchwords: FAMILY LAW – PROPERTY – Interim Application – where the wife seeks interim property orders for the sale of three matrimonial properties – where husband agrees to the sale of one property only and seeks to retain others on a final basis – where consent orders made for husband to meet expenses of the properties – where husband incarcerated – where wife apprehends that husband will be unable to obtain funding to retain properties so that an order for sale is inevitable - principles relevant to interim sale of property – application dismissed as premature Legislation: Family Law Act 1975 (Cth) ss 79, 80 Cases cited: Aitken & Murphy (No 2) [2012] FamCA 239.
Gabel & Yardley (2008) FLR 270; [2008] FamCAFC 162.
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFA 166.
Division: Division 2 Family Law Number of paragraphs: 46 Date of last submission/s: 23 October 2023 Date of hearing: 23 October 2023 Place: Melbourne Solicitor advocate for the applicant: Mr Condello of Condello Lawyers Counselforthe respondent: Ms Finemore Solicitorfortherespondent: Coulter Legal ORDERS
MLC 6588 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BACCHIA
Applicant
AND: MR BACCHIA
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
21 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The wife’s application in a proceeding filed on 16 June 2023 seeking the sale of the property located at B Street, Suburb C and the property located at D Street, Suburb E be dismissed.
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).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
In this matter, the applicant wife seeks interim orders for the sale of the parties’ three real properties, being:
(a)B Street, Suburb C (Former Matrimonial Home)
(b)F Street, Suburb G and Car Park space (Suburb G Property);
(c)D Street, Suburb E (Suburb E Property). (collectively, the Matrimonial Properties).
The respondent husband’s position is that he agrees only to the sale of the Suburb G Property. He seeks that the Former…
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CaseChat Overview and Summary
Judge Symons examined the principles relevant to interim sale orders, emphasizing that such orders should not be made lightly. The judge considered the husband's current inability to fund the properties due to his incarceration, the wife's concerns about the husband's future ability to retain the properties, and the potential impact on the wife if the properties were sold. The court noted that interim sale orders should generally be avoided unless there are compelling reasons, such as the risk of dissipation of assets or the need for a quick resolution to protect the interests of one party. The judge concluded that the application was premature, as there was no immediate threat to the assets and the husband's incarceration did not justify an interim sale order. The court was satisfied that the husband's agreement to sell one property and the wife's concerns did not warrant an order for the sale of the remaining properties at that stage.
The court dismissed the wife's application for the sale of the properties located at B Street, Suburb C and D Street, Suburb E, finding it premature. The form of the order is subject to entry in the Court's records, and any minor errors in this judgment may be subject to correction under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court's decision highlights the cautious approach required in granting interim property sale orders in family law proceedings.
Orders
Orders of the court
MLC 6588 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BACCHIA
Applicant
AND:
MR BACCHIA
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
21 FEBRUARY 2024
THE COURT ORDERS THAT:
1. The wife’s application in a proceeding filed on 16 June 2023 seeking the sale of the property located at B Street, Suburb C and the property located at D Street, Suburb E be dismissed.
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).
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.
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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